Durrell v. Farwell

• Decision Date: 16 May 1895
• Citation: 31 S.W. 185
• Court: Texas Supreme Court
• Parties: DURRELL v. FARWELL et al.

31 S.W. 185

DURRELL v. FARWELL et al.

Supreme Court of Texas.

May 16, 1895.

On rehearing. For former report, see 30 S. W. 539. Granted.

BROWN, J.

We have carefully considered the motion in this case, and find no reason to change our views as to the questions determined in the former opinion of this court. Defendants in error, however, claim that the judgment should not have been rendered by this court, but that the case should have been remanded for a new trial, because the evidence tends to show that the purchase of the land at execution sale was in fact for Gage, and deeded to Durrell for Gage's benefit; also that the evidence tends to show that Durrell consented to the sale at Alpine, and is therefore estopped. Upon the last question we do not think there is sufficient evidence in the record to justify sending the case back for another trial, and we would not remand upon that ground alone. However, the parties may produce more evidence upon that point upon another trial, and we will not discuss the facts in the record.

Upon the first question the court of civil appeals found as follows: "On the 4th day of August, 1891, the appellee (appellant) H. C. Durrell purchased at execution sale by virtue of levies made under valid executions issued upon valid judgments against E. L. Gage all lands upon which appellees seek in this case to foreclose the mortgages given by Gage; that said sale was in all things regular; and that Durrell received deeds made by virtue of said sale, which were duly executed, and he paid the purchase money, and his deeds were duly recorded in Brewster and Buchel counties on August 5, 1891. At the time of said execution sale, Durrell's agent who made the purchase for him had actual notice of the mortgages given by E. L. Gage on said lands to secure the bonds sued on." This was sufficient to show that Durrell acquired all the right of Gage in the lands, and upon this finding this court acted in rendering judgment here. The record shows that the statement of facts contains admissions made at the trial, in which the substance of the finding of the court of civil appeals is embraced, but after that we find in regular order the testimony of the witness W. W. Turney, who, without objection on the part of plaintiff in error, testified in substance, that "the executions under which the land was sold and the deeds made to Durrell were sent to Giles, an attorney, and that he (Turney) was at the time the attorney of E. L. Gage,...