"First. On May 1, A. D. 1912, the defendant herein, E. F. Connell, filed his original petition in the district court of Deaf Smith county, Tex., against the plaintiffs herein, L. F. Nickey and Lizzie M. Nickey. Connell's suit was numbered 498, and styled E. F. Connell v. L. F. Nickey et ux., on the docket of this court. In said original petition E. F. Connell alleged in substance: (1) That the Nickeys owned sections of land Nos. 140-146, in block M-7, Castro county, Tex. That on or about March 2, 1912, the Nickeys made a proposition to E. F. Connell to sell him said land for $8,000, $4,000 cash, balance in vendor's lien notes of $2,000 each, due one and two years, with interest, Connell to place $300 earnest money in bank at Mansfield, La., and Nickeys would send their agent to Hereford, Tex., to close said deal. (2) That he (Connell) accepted the proposition, and in all things complied with the terms thereof, by putting up the $300 earnest money in said bank, etc. (3) That the Nickeys failed and refused to carry out their contract — breached same by refusing to convey the land and take the money and notes, etc. (4) He prayed judgment for the land in specific performance of the contract by the Nickeys, and, in the alternative, for his damages in the sum of $5,200.
"Second. On June 5, 1912, in vacation, E. F. Connell filed his first amended original petition
wherein he alleged a written contract between himself and the Nickeys for the sale and purchase of said land, breach of said contract by the Nickeys, his consequential damages in the sum of $5,200, and prayed judgment for his damages. He also alleged in said amended petition the sale by himself of said lands to other parties for $5,200 more than he had contracted to pay therefor to the Nickeys, the loss of which profits constituted his damages.
"Third. At the date of filing said original and amended petition, respectively, the Nickeys resided in the state of Louisiana, where they have permanently resided at all times and now reside.
"Fourth. The Nickeys were each served with nonresident notice of the filing of the original petition, and had delivered to them a certified copy of said original petition attached to said notice, which said notice was served in the state of Louisiana, commanding the Nickeys to take notice of the filing of said suit, and to appear and answer same at the October, 1912, term of this court, which convened on October 28, 1912.
"Fifth. That on the 13th day of November, 1912, during term time of this court, E. F. Connell made and filed in this court his affidavit and bond for attachment in said cause No. 498, and procured a writ of attachment to be issued by the clerk of this court and delivered to the sheriff of Castro county, Tex., which said writ was dated November 13, 1912, and which was on the same day, to wit, November 13, 1912, levied by Roy Barber, sheriff of Castro county, Tex., on the two sections of land belonging to said Nickeys, and said sheriff's return on said writ of attachment was properly certified to by said sheriff and was recorded in the attachment lien records of Castro county, Tex., on November 13, 1912. No notice of the issuance of this writ of attachment, nor of the levy of same, nor of the recording of the return with the certificate of the officer thereto, was served on the Nickeys, or either of them, and neither of the Nickeys had notice or knew that their land had been attached or levied upon, or an attachment lien created thereon, until about the 4th day of February, A. D. 1913, when they received notice at their home near Mansfield, La., that their land had been seized and would be sold by virtue of an order of sale issued out of the district court of Deaf Smith county, Tex., in cause No. 498, styled E. F. Connell v. L. F. Nickey et ux.
"Sixth. On November 25, A. D. 1912, E. F. Connell took judgment by default in said cause No. 498 against L. F. Nickey for the sum of $5,044, together with all costs in that behalf expended. In said judgment the court ordered that no execution should issue thereon on account of the Nickeys being nonresidents of the state of Texas, but ordered that the attachment lien as it existed on the 13th day of November, 1912, be foreclosed, and that an order of sale issue, commanding the sale of said land, or so much thereof as may be necessary to satisfy said judgment.
"Seventh. That after said default judgment was entered, and after final adjournment of the October, 1912, term of this court an order of sale was issued by the clerk of this court on the ____ day of ____, 1912, directed to the sheriff of Castro county, commanding him to seize and sell said land, or so much thereof as was necessary to satisfy said judgment. That the sheriff of Castro county levied upon said land and proceeded to advertise same for sale as directed in said order of sale, and served the Nickeys with notice thereof about the 1st of February, A. D. 1913, which was the first notice they, or either of them, had that the writ of attachment had issued and been levied on their land, and that the default judgment had been entered, and that the order of sale had been issued and levied on their land, and same was being advertised for sale.
"Eighth. On the ____ day of ____, 1912, E. F. Connell procured a commission to be issued by the clerk of this court in cause No. 498 to take the answers of L. F. Nickey and Lizzie M. Nickey to ex parte interrogatories propounded to them by E. F. Connell. That said ex parte interrogatories, together with said commission and the certificate of a notary public for the state of Louisiana, were returned into this court in said cause No. 498 in due form of law in August, 1912. That said ex parte interrogatories had not been answered, but were accompanied by the certificate of ____, a notary public, in and for De Soto parish, state of Louisiana, duly authenticated by his seal of office, and in due form as required by law in such cases, certifying that L. F. Nickey and Lizzie M. Nickey had each willfully refused to answer said ex parte interrogatories propounded to them by E. F. Connell and read to them by said notary public, and upon the trial of said cause No. 498, wherein said default judgment was entered by the court, took said ex parte interrogatories as confessed against the said Nickeys.
"I find that said certificate of said notary public to the effect that each of the said Nickeys willfully failed and refused to answer said interrogatories is not true, and I also find that neither L. F. Nickey nor Lizzie M. Nickey refused to answer said interrogatories, or any of them, and that said interrogatories should not be taken as confessed.
"Ninth. The entire negotiations between E. F. Connell and L. F. Nickey and Lizzie M. Nickey for the sale of said land consisted of the following letters:
"(1) A letter dated January 22, 1912, written and signed by one J. H. Williams, to plaintiff Lizzie M. Nickey, which said letter she, the said Lizzie M. Nickey, received. In said letter written by said Williams he, the said Williams, made this statement, to wit: `I have a possible chance of selling the place [meaning said two sections of land] for $8,000.00 cash net to you. Let me know at once if you can take it.'
"(2) A letter dated January 26, 1912, addressed to J. H. Williams, and in reply to his letter of date January 22d, aforesaid, signed by plaintiff Lizzie M. Nickey, properly addressed to J. H. Williams, Hereford, Tex., properly sealed, stamped, and posted, which said letter said Williams received. In said letter plaintiff Lizzie M. Nickey stated that she would accept $8,000 cash net to her for said two sections of land, provided said Williams would have the $8,000 at the People's Bank in Mansfield, La., by February 5, 1912, together with deed for her to sign, with instructions to said bank to turn over the $8,000 to her when the deed was acknowledged by her, and the said Lizzie M. Nickey made the positive statement in her letter, as follows: `I will not be under obligation to accept this after February 5, 1912. Wire me on receipt of this if you are sending papers.'
"(3) A letter dated February 28, 1912, signed by E. F. Connell, defendant herein, written to plaintiff Lizzie M. Nickey, which letter was received by plaintiff Lizzie M. Nickey, and is as follows, to wit:
"`Hereford, Texas, February 26, 1912
"`Mrs. Lizzie M. Nickey, Mansfield, La. — Dear Madam: Your letter to Mr. J. H. Williams has been handed to me by Mrs. Williams for reply, as Mr. Williams was out of town looking after his cattle and has been for two weeks. The party Mr. Williams was on a...
