Waites v. D. M. Osborne & Co.

Citations

• 66 Tex. 648
• 2 S.W. 665
• 1886 Tex. LEXIS 588

Syllabus

<p>1. Practice—Continuance.—In the absence of a bill of exceptions, the ruling of the lower court upon a motion for continuance cannot be revised; and all presumptions will be indulged in favor of its correctness.</p> <p>2. Vendor’s lien—Purchase money notes—Recitals, in deed—Subsequent purchaser—Notice.—Three notes, dated July 5, 1881, the largest being for $325, and due July 4,1882, and the other two aggregating $125, and due January 5,1882, recited that they were given in consideration of one hundred acres of land out of a certain survey; but contained no description by metes and bounds. A deed of conveyance from the payees to the payor of the three notes, dated July 5, 1881, described, by metes and bounds one hundred acres out of the same survey; and as to payment recited “ in consideration of the sum of §850, paid in the following manner: §200 in cash, §325 due Junuary 5,1882, and §325 due July 5, 1882; the last two payments are evidenced by two promissory notes for the amounts and due at the times above mentioned.” The petition, in a suit upon the three notes by the assignees of the payees, described the land conveyed by the deed, and, alleging that the notes sued on were given in payment therefor, sought to foreclose the vendor’s lien thereon. As against the administrators of S. who had bought a portion of the one hundred acres conveyed by the deed. Held:</p> <p>(1) The deed gave notice of the lien for the purchase money, and identified the largest of the three notes sued on as one of those given for the land described in the petition; but did not give notice that the other two notes sued on were given for that land.</p> <p>(2) By the recitals in the deed, S. was affected with notice that a lien was reserved for the payment of the purchase money remaining unpaid; but the land in the hands of his administrators could not be subjected or made liable for the payment of any debt of which the recitals in the deed did not give him notice.</p>