Whitworth v. Alston

Citations

• 65 Tex. 528
• 1886 Tex. LEXIS 702

Syllabus

<p>1. Promissory note—Deed—Proof—Pleading—Variance—A. sued W. S.Whitworth and Mattie W. Whitworth on a promissory note, alleging that the note was executed to him by the defendants as a part of the consideration for one hundred acres of land sold by him to them, on the alleged day of the execution of the note, and praying a foreclosure of his lien on the land, as vendor. A copy of the note and a description of the land were appended to the petition, as exhibits; and the defendants were notified to produce the deed made to them, or either of them. On the trial, A. introduced in evidence a note signed by the defendants, which recited that it had been given for a tract of one hundred acres of land, that day conveyed to Matilda W. Whitworth. A deed, of even date with the note, and executed by A., conveying to Matilda W. Whitworth the land described in one of the exhibits to the petition, and reciting that a note for the same amount, and maturing at the same time as the one sued on, constituted a part of the consideration for the land, was then introduced. The trial court rendered judgment in favor of A. for the amount of the note and interest, and decreed a foreclosure of the lien claimed. Held:</p> <p>(1) That the evidence was amply sufficient to sustain the judgment;</p> <p>(2) That the fact that the deed produced in evidence was made to only one of the defendants did not prove that the land had not been sold to both;</p> <p>(3) That the land had been sold to both defendants was an averment not necessary to be proved, because the lien would exist if the note was for part of the purchase money, no matter who was the purchaser or vendee.</p> <p>(4) That the proof, whilst it failed to establish some of the averments not necessary to make out the plaintiff's case, and established some facts not averred, did not show a cause of suit different from the one pleaded.</p>