Niblett v. Shelton

Citations

• 28 Tex. 548

Syllabus

<p>A judgment by default amounts to an admission of the facts charged in the petition, and the allegations of the petition are thereupon to be taken as proved and admitted, and the interposition of a jury is therefore not necessary to the establishment of such facts as the basis of the judgment of the court in a suit where the cause of action is liquidated and shown by an instrument in writing. (Paschal’s Dig., Art. 1508, Note 594.)</p> <p>In a suit on a promissory note given for the purchase-money of land, a judgment enforcing the vendor’s lien may properly be rendered by default without the intervention of a jury, when the averments of the petition are sufficient to entitle the plaintiff to that relief and no defense is interposed.</p> <p>The plaintiff sued as holder of a promissory note executed by the defendants to R. W., or bearer, and purporting on its face to have been given in part consideration of two tracts of land, of three hundred and twenty acres each, patented to the payee, as assignee of other parties. In his petition the plaintiff described fully, by metes and bounds, the tracts of land for which, as he alleged, the note was given; averred that he was the legal and equitable owner, holder, and bearer of the note sued on, with all the equities appertaining thereto; and prayed for judgment on the note against the defendants, and also for a decree enforcing his vendor’s lien by sale of the lands. The defendants entered no appearance, and judgment by default was rendered against them for the amount of the note, and’ also for the enforcement of the vendor’s lien by sale of the land, as described in the petition. The defendants prosecute their writ of error, assigning that the court below erred in rendering the judgment enforcing the vendor’s lien without the intervention of a jury to find the facts that the note was given for the lands decreed to be sold, and that the plaintiff was entitled to the vendor’s lien: Held, that the judgment by default was an a