Burton v. Dupree
| Decision Date | 15 June 1898 |
| Citation | 46 S.W. 272 |
| Court | Texas Court of Appeals |
| Parties | BURTON et al. v. DUPREE. |
Appeal from McLennan county court; J. W. Gallagher, Judge.
Action by W. E. Dupree against Viola Burton and others to recover rents and foreclose a landlord's lien. There was a judgment for plaintiff foreclosing the lien against defendants Goggan & Bro., who appealed. Reversed as to them, and affirmed as to defendant Burton.
E. E. Easterling and Robt. H. Rogers, for appellants.
Appellee brought this suit against Viola Burton to recover rent due for the use of a house, and sued out a distress warrant, which was levied upon a piano, stool, and scarf. Thomas Goggan & Bro. were made parties defendant, as mortgagees of the property seized. Pending the litigation, Goggan & Bro. purchased Viola Burton's interest in the piano, stool, and scarf, and interposed the plea that the rent contract between appellee and Viola Burton was illegal and contrary to public policy, and therefore should not be enforced as against their claim. The court below rendered judgment in Dupree's favor, against Viola Burton, for the rent sued for, and foreclosed his landlord's lien on the property in question against her, and also against Goggan & Bro. Goggan & Bro. have appealed.
The uncontroverted testimony shows that the house was rented and used for the purpose of public prostitution, and that appellee knew at the time that the contract was made, and during the time that Viola Burton occupied it, that it was to be, and was, used for that purpose. It is a penal offense to keep a house for the purpose of prostitution; and it is a like offense for the owner of the house knowingly to permit it to be used for such purpose. Pen. Code 1879, arts. 359-361. In Hunstock v. Palmer, 23 S. W. 294, the court of civil appeals for the Fourth district held that a lease made with the knowledge of the lessor that the premises are to be used for the purposes of prostitution is contrary to public policy, and no rent can be recovered. That decision is supported by authorities referred to in the opinion, and appears to us to be sound in principle. We therefore hold that the lease contract in this case is contrary to public policy, and not enforceable in the courts, unless it be that the provisions of the Penal Code referred to are suspended, and do not apply in the particular portion of the city of Waco in which the house in question is situated.
The testimony shows that the charter of the city of Waco authorizes the city council to "restrain, punish, regulate, and control, license and locate all houses of prostitution or assignation and keepers and inmates thereof; and to provide a system of inspection of the inmates thereof for the preservation of the public health." It is also shown that, under said charter, the city council has passed an ordinance licensing houses of prostitution within certain limits in said city, and providing for the inspection of the inmates of such houses. It is further shown that the house in question is situated within the limits referred to, and was one of the licensed bawdy houses in the city of Waco all the time it was occupied by Viola Burton. In view of these facts, it is claimed on behalf of appellee that the provisions of the Penal Code above...
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Miller v. State ex rel. Russell
...Bush. 74; State v. Railroad (Mo.), 162 S.W. 144; Hooper v. Britt (N. Y.), 96 N.E. 371; Page v. Allen (Pa.), 98 Am. Dec. 272; Burton v. Dupree (Tex.), 46 S.W. 272; State v. Thompson (Wis.), 137 N.W. 20; Henry State, 87 Miss. ; Lumber Co. v. State, 97 Miss. 355; Beck v. Allen, 58 Miss. 143; C......
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...citing the case of Brown Cracker Co. v. Dallas, 104 Tex. 295, 137 S. W. 342, wherein Chief Justice Brown held: "In Burton v. Dupree, 19 Tex. Civ. App. 275, 46 S. W. 272, Judge Key, in his usual succinct and forcible style, points out the difference between the former and present provisions ......
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...[34 L. R. A. (N. S.) 453]. See, also, Brown Cracker Co. v. Dallas, 104 Tex. 290, 137 S. W. 342, Burton v. Dupree, 19 Tex. Civ. App. 275, 46 S. W. 272 (S), and Harris' Annotated Cons. p. 209, for collated cases. (18) The Legislature alone has the power of suspending the operation of general ......
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