Orrill v. Talbott

Citations

• 44 Tex. 192

Syllabus

<p>Vendor’s lien.—In a suit on a note given for a sum certain, with no stipulation as to interest or the character of money in which it was payable, it was alleged that the note was given for the purchase-money of a tract of land on which the enforcement of a vendor’s lien was claimed, and that “it was the understanding and agreement ’’ that the note was to be paid in gold or silver coin and was to draw ten per cent, interest. On appeal from a judgment for gold with ten per cent, interest and enforcing the lien, there being no statement of facts and no action below shown on a demurrer to the petition : Held, That there was no error in the judgment, below, because, 1st. Though the pleading was defective in the allegations relating to the parol agreement, to pay coin and inte,rest, in the absence of a statement of facts the court will presume that evidence was admitted to aid the allegations. 2d. There being no ruling on defendant’s demurrer, it must he considered as waived. 3d. The petition does not allege that the promise to pay coin was contemporaneous with the execution of the note, nor negative the fact that there was consideration to support the promise; and without a statement of facts, or exceptions taken in time in some form, this court will presume that che proper evidence was before the court to sustain the judgment.</p>