The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-02-22
SUPREME COURT DECISIONS.
Synopses of Decisions Handed Down
at the Last Sitting.
BPOwN.NONTGOMERY CASE REVERSED
Question of Imperfect Title Raised-Writ
of Error Refused In tho Suit OF
Hambel ct al. We. Davis.

court today:
@. a. BROWN VS.. r. Z. MONTGOMERY.
suit on two promissory notes and TO fore
close vendors lein securing the payment
of same. from Tarrant county. Second
dlstrict--Reversed and remanded.
The suit was instituted by Montgomery
against Brown. Brown alleged that the
notes In suit were given for part OF the
purchase money for a certain tract of
land; that In making the purchase he had
relied upon Montgomery's statement that
the title to the land was perfect that the
title was not, in fact, perfect. and that he
was IN danger of being evicted from the
land. lie also alleged his willingness to
nay the notes II Montgomery would per-
feet the title. The trial court instructed
verdict for the plaintiff
II is settled law in this State that in
cases of this character n deed reserving
vendors lien must be considered an eX-
ocuted contract.
In Cooper W. Singleton. u Texas, 2G7. in
stating the circumstances under which "A
Nendee In an executed contract can defend
against salt for purchase money, it is
said. THE veudee should establish beyond
doubt that the title was a failure in whole
or IN part. that there was danger of eVic-
ton; and also such circumstances as
would Fima facie repel the presumption
that. adthe time of the purchase, he knew
and intended to run the risk of the de-
feet"
Inc question then under discussion was
| inc SuIflclcncy OF the plea to which a de-
tnurrer mad been sustained. and this lam
Suage was used with reference to the Ger
AMY required by the plcader IN stating
ms uetchse IN such case. II has no ref
crence to the intensity OF proof required
TO support such plea.
w tle the burden is upon the plalntiff
10 establish the material facts stated I'm
such plea, he has never been held to cs-
tsa9llsh them beyond doubt" il is suf-
| ticient If he establish same to the salts
cases. NV
The jury would have been justified in
INNING IRON the evidence that a lien ex-
| isted against the property prior to tho
sue 10 Brown and that II so continued up
| 10 the time of suit They were author
1eu 70 lnler that the holder OF this lien
| would insist upon its payment and that
there was danger of eviction.
| Ihe comparative values of the pranertv
ahu Tue amount OF the lion is NOT shown.
sun the Jury would have hecn authorized
| 70 auopt a practical. instead of Il theoret-
| zeal, view of the situation and conclude
1 tiat thcre could not be found cash pur-
cIascrs ior 80 large an amount Of IRON
1 ton. w 'N'c-
MONTGOMERY refusing to comply with
! NJ uSrrement To cause said lien 10 ,,o
I recessed OF record, IS N no position to
4 invoke the application of any harsh r,ile
| OF law II such there be- denying the Jury
,he power TO infer fact known to ali
t tnai 'ttasonahiy conyersant wih the ac-
| wal dIi'lfS OF ire that in forced sales of
| property TO pay so large a sum tho selling
! ~ y pIactcaIly within the control OF
/ sacrifices are TO be expected.
/ .Iilu tho evidence show that prou,n
! ,hilcW and intended to run the risk Of tho
n og t,,. II IS not clear that, at the time
/ ON the land. The Jury night bave H.
/ terred that the statement of Montrome,'y
I At IN" tiinc of the sale was understood hI.
n,,,,Sr, as referring to some satisfied IN
/ vulnplhhcc which only required the entry
/ upon record OF tho formal release mud MOI
us having any reference to the large in
onn,nbrances afterwards discovered
/ We conclude that the court erred In in
] SlTuci ng a verdict for tho plaintiff
=, ltad there boen a demurrer TO the silf-
/ niCienry of the plea on the ground that
/ dition that Montgomery would conuens a
nun Tor improvements. e. may he tG,t
( equity would have required such m offo,.
,S ~ III tne absence Of Il demurrer to th'e
| D,lvct' We are Of the opinion that tho
/ pi'hhlng was sufficient to Support n yer-
! ulDt ana Judgment sustaining ihe efav of
IbI s nrT@a, ~ntti Montgomery can perform
| NrrScd ana remlndcd
! OpiuiOn bv n.or,,,
' "''"" d.
I HENRY y IOrr>-c,l>-
/ WOOD et nj cor,iS,'i al vs. -. PORT
case fr,,, T,o,,.., ~ 'iien questions in n
-Ansy,c,t''ii ; county, Second dis
,,sa q, ING orinion in this
III 'hc court Of civil anneals
! l. we think we have no hlrlsdietio,, D.,
/ decide the questions nc u,,,,, ,,.,..ts,- ~ 10
dissent 49,, . ~" V'''itlo9te or
,,.t vase must be finally deter
n""Ou before dissent can be certified
a case is not finally dete,,,i,,o<, -, We
as there 10 ,,,.,,t.,' '''''','e" as long
1.,,sn..,,.' 81 "''''H ior rrhearlng un-
w 'e' 'nli'eu' Hence. we think that our IN
/ dissant '"~" '' REASON OF the
> BUT since r,o mint.
SINCE 'he opinion which accom-
/ Pahies tho certificate. and which L..
/ deemed a part Of /, dt,.t,,,,. ' 10
the otI,sii,,, -. '''''"F presents
,...,,', upon Wnlch our opinion is
"''''cn ana since we are requested IA
consider the same as n. cortir,o,t .,,.,.'. w
| II not l,por a - =" va ".''u question
! tbt,,t VeiNilcate OF dissent, we
N 81 our uuty to comply.
T. We are of the oninlon tho, e..
ccpfious to tb, ,,l.,.,..-.,..t '""S 1He OK
/ u...,... .,...... $50 's9 OF the defendant
| ~ sustained
l.