Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-12
CIVIL COURT OF APPEALS.
Full Report Of Decisions Rendered by The
Court Tor the Second District.

No. 1874. W. J Miller appellant. vs.. Boone
and Scarborough. appellee. Appeal from
district court OF Mitchell county.
CONCLUSIONS.
This suit involves the title TO four sections
81 land situated In Mitchell county George
j. Itcgcr being the common source OF
title Appellant claims through tW1 sales
made lu succession by the substitute trus.
tee under % deed " trust executed Uy said
Relger ou the both duy Of April, lsSi to
SECURE the payment ui % certain prOmssury
note Ia favor Of james Upton Tor the sum of
$500. This decd of trust created lien
upon tue property in controversy, the valid
nv " which ls not called in question. APP
prllcCs UJim as purchasers az uu CNecu-
ton sale for the sum uf SO under u iudg-
ment In thelr favor against said Rciger,
The controversy turned upon the validity Uf
the sales made Dy the trustee: the one
being made prior, and the other subsequent
10 tie execution sale AZ the hrst sale
under the deed uf trust the COncHo National
bank became the purchaser 10 having uc-
Qurcl title 10 tue note secured by the deed
Of trust The court held this sale TO be
void because not uutle ut the door OF the
tuul thOusr, as provided In the deed OF
irust; IL appears nom the record that. nc
the date Of this sale, which was made be-
fore the door ~ the house Ia which the
county ana commissioners courts OF Nit
chrll county were held. the opera house
was used and designated AS tho place FOR
holding the district court Of that county.
AFTER THIS sale ANA also after the cXccu-
consideration OF the sum OF $500 10 Il paid
| by appellant, conveyed 10 him the lands so
purchased 10y &c. and also, for the same
consideration. assigned to him the note
| secured ly the deed OF trust. though II
seems that at the date Of the second sale
under the trust deed which was made at
the Instance Of appellant on account OF
the supposed defect In the first sale the
note had been misplaced and could not be
found. lhls sale Wus found To be- I'm al
respects regular except that appellant ala
"a h4 mn
] held that as appcllers, paintlns below had
snoWu a lerIect legal title
The Judgment and execution sale aforesaid
the burden % proof devolyed upon appel.
hut 10 estahllsh superior little by pre-
| pnudeluucc of the evidence TO The extent
| ~ showing such an interest in or over
ship Of the notes which the decd " trust
| wa given 70 secure ~ would authorize him
| ucgdi which me court concluded lac hnd
| failed 20 do aud thar, therefore this sale
| was without authority ana yold. We eau
| NOS concur Ia this conclusion. According
| 10 our construction OF the truusactlols dis.
closed by the record. the conclusion * uu.
| nyollnble' that appellant at the date OF
| the debt secured by the deed OF trust or
| NJ least had such intereat therein as
| authorized nlm 70 direct the sale of the
| sustain appellants tblrd assignment " error
| ana substitute this conclusion f0g that OF
| ne court below. In other repccts hts con.
| the Necessity of determining whether the
| hrSt shle was void or simply iTrpgular aud
leads to a reversal OF the Judgment 40.
/ penled nom ana the rendition here OF a
/ Judgment IN favor ~ appellant Tor the Lands
| Ia dispute. STEPHENS
Associate Justice.
No, Ii1 Scltz Bros. appellants. vs. II.
| Mckenzie appellee. Appeal from the
| comfy court OF Nolan county,
OPINION.
| Appellee sued appellants IN the county
| court OF Nolnn county for ono months wages
| az $40 ana six months wages nj $50 Dor
month; also Tor $V45S' the alleged value OF
| seven head OF sheep sold by him To npnel
lautH; also upon an account Tor Siu7 10 for
! certain supplies 10 have been furnished by
linn for the use of appellants IN taking
| caro- of dock " sheep.
Appellants pleaded Ia reconventioD dam.
| ages alleged 10 have been sustained by
tuGn ~ reason OF the negligence on an.
/ also an account Tor Sl45.2O for various ifeNis
/ 9f money aud merchandise alleged 10 hnve
/ been paid aud fmnlshed by them 10 appei
/ zee. alu prayed Judgment for the balance
/ gtler kductipg any amount that might ~
| FOUND hue 20 appellee. which they slisgeA
| giI not exceed the sum OF sos leaving a
nAihNtt uue the'u Tor which they urnv,I
| ludgment amounting t. about $500 Iidg.
| menl was rendered In favor OF appeuee
uPs2 t,i Tue verdict of a Jury Tor S2aaJi.
several errors are presented bv ANIMAL
| lants relating Go the action OF tbe c,Stt i
| the admission and rejection 81 eyIYaDH,iln
! aud 10 charges given the Jury having ~
| ton t. their plea In recouVentlon Inn H.,
\ as much as the county court clearly NM ~
| jurisdiction ~ the amount An tontr.,,s.,o,
as claimed In said plea we ara III o,,inig
| ,hal no error committed by Il 10 reference
| tuerel9 can 9yail appellants ana me clse
| must he eopsidefM alone with refer0pco ~
| We petition OF appellee aud Inc peners
denial hled by appellant When IL c,,l
| suffered appellants assign AZ error M. ~
] zion Of the court below Ia overruiinr n,.Sr
| special exception 10 some 81 fhe itS,,. h.
! ihe account for SlN7.AJ filed IN nnnelloe
| put ln ~ much Qs the evidence u-i,e u,'1i
| puted that appellee SERVED annlie,t 80
/ month az an agreed price OF S5h ner ,,,hn,1'
0ud that appellee sold TO appellant ,,.e,,,,,
| an agreed price OF sex ana oplv rs' $500 ~
| judgment Tor "A sum considerably 49, 49,
| tlal thus shown io he due him the r,itns
| 1i ulf court 80 complained ~ cauuof ~
malefld even though erroneous A tbe
| court below had no jurisdiction OF 9pne.
| ianis plea in reconyeniion tho veriicf anh
| Judgment cannot OF course preri,,i. 49, sla
| right 20 bring an independent snif IN e, sSt
| ANA as ~ what cnect the iudptnent 49,, 1H
| cred In this Gaze win have uion tb,s ei isa
| ~ appellce's claim Should M sec $500 eS's''es
| present 10 agan II Is not necessote f "
/ % decide be makes no coinplaihi ~ ,hss
] Judgment ns rendered " 'Nf
/ We are of oplnan that the iudgn,ent ~
/ armed. INA n'NAP pe At