Boggess v. Lilly

• Decision Date: 01 January 1856
• Citation: 18 Tex. 200
• Parties: GILES S. BOGGESS v. WILLIAM B. LILLY.
• Court: Texas Supreme Court

18 Tex. 200

GILES S. BOGGESS

v.WILLIAM B. LILLY.

Supreme Court of Texas.

1856.

Where the plaintiff and defendant, dealing faro in partnership, became indebted by losses to A, B and C, and the plaintiff, in consideration that the defendant paid A and B, and assumed to pay C, which assumption C received in discharge of the plaintiff, gave the defendant his note for his share of the losses, it was held that the consideration of the note was not unlawful, and that the defendant was entitled to recover the full amount of it, although he had not yet paid C. 16 Tex. 359.

Where the supreme court reversed and reformed the judgment, establishing the appellant's right to judgment on a note and to the dissolution of an injunction, which had been obtained to prevent a sale under a deed of trust given to secure the note, the appellee having died, and his administrator become a party, judgment was not given for a sale of the land, but the judgment was ordered to be certified to the probate court, to be paid in due course of administration. 22 Tex. 537;28 Tex. 80.

Appeal from Travis. Tried below before the Hon. Thomas H. Du Val.

Suit by appellee to enjoin the sale of real property under a deed of trust, given to secure the payment of a note for money lost by plaintiff and defendant in dealing faro in partnership; the plaintiff alleging that the defendant fraudulently obtained said note and deed of trust by falsely representing that he had paid said losses, when in fact he had not, etc.; and that the note and deed of trust were given without lawful consideration. Allegation also of usury. Answer by defendant that said promissory note and said deed of trust were executed for the consideration hereinafter stated; that, at the special instance and request of the said Lilly, this respondent advanced to one Henry W. Sublett and one William Allen the sum of seven hundred dollars, which seven hundred dollars, so advanced and paid out by this respondent at the request and instance of the said Lilly, as above stated, formed part of the consideration for which said note and deed were executed. And, at the like special instance and request of him, the said Lilly, this respondent assumed to pay for him, the said Lilly, to one James R. Jackson, the sum of five hundred and fifty dollars, which amount the said Lilly was then owing the said Jackson, and for which amount, by an agreement made by and between the said Jackson and Lilly, and respondent, your respondent became the debtor of said Jackson in the room and stead of him, the said Lilly, which agreement was accepted by the said Jackson and agreed to by said Lilly; which amount of money respondent still owes to the said Jackson, and for which amount of money the said Jackson still holds respondent bound to him; which five hundred and fifty dollars, together with the seven hundred dollars, advanced to said Sublett and Allen, as above stated, amounting in all to the sum of twelve hundred and fifty dollars, form the consideration for which said note and deed of trust were executed. And respondent further states that, true it is, for the said sum of twelve hundred and fifty dollars of money and credit, so advanced by this respondent for him, the said Lilly, he, the said Lilly, agreed and promised to pay this respondent interest at the rate of five per cent. per month on said twelve hundred and fifty dollars, from the date of said promissory note until the payment mentioned in said note, which interest, so agreed to be paid, amounted to the sum of seventy dollars.

Defendant prayed a dissolution of the injunction. Judgment for the $1,250, order of sale, etc.

The death of the appellee was suggested in this court, and his administrator made a party.

H. W. Sublett, for appellant.

Hancock & West, and Chalmers, for appellee.

WHEELER, J.

Assuming that the court will interpose, by injunction, to restrain parties from executing such a contract as that set out in the petition, in the manner proposed; and that the petition is to be taken as true, except in so far as it is negatived by the answer; and that the answer is to be taken as true, and as disproving the averments of the petition which it negatives--which, we think, is the view which the parties took of the case, in submitting it to the judgment of the court on the merits, on petition and answer--the state of case which is presented is this: The plaintiff and defendant were partners in illegal gaming, and were losers to A, B and C. At the request of the plaintiff, the defendant paid for him to A and B seven hundred dollars, which was due from ...