Ferris v. Streeper

Decision Date23 April 1883
Docket NumberCase No. 4092.
Citation59 Tex. 312
PartiesBENJAMIN FERRIS v. J. E. STREEPER.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

APPEAL from Grayson. Tried below before the Hon. Joseph Bledsoe.

Streeper sued W. E. and Thos. L. Arnold, J. M. Cook, S. A. Cook and J. W. Orme, September 20, 1875, charging the execution of a note by the Arnolds to Orme and S. A. Cook, the indorsement of it by S. A. and J. M. Cook to Streeper, J. M. Cook joining therein as surety; that the note was executed for the purchase money of certain land therein described; that Orme had since purchased the land with notice of the lien; that the consideration for the indorsement of the note by the Cooks was the conveyance by him of lot No. 10, block 51, town of Denison, and that by virtue of the indorsement the Cooks became original promisors, and the note constituted a vendor's lien on the lot; Orme and wife asserted a homestead right to the other land; J. M. Cook claimed that he was indorser on the note and released by the laches of the plaintiff; S. A. Cook set up his discharge in bankruptcy, and the Arnolds made no defense.

There was a verdict and judgment in favor of Streeper against the Arnolds for the amount of note and foreclosure of lien upon lot No. 10, but for defendants Orme and wife, J. M. Cook and S. A. Cook. This judgment was rendered May 13, 1879; on the 15th of the same month Ferris filed a motion in the name of S. A. Cook for a new trial, and this was opposed by all the parties except the Arnolds. Two days after he filed a motion in his own name, claiming that he had purchased lot 10 from S. A. Cook in January, 1876, and, as part payment of the purchase money therefor, had paid off and discharged a valid mortgage on the lot, which was taken without notice of the lien asserted in this case; that at the time of the purchase and payment of the mortgage he had no notice of the pendency of this suit and the existence of the vendor's lien; that S. A. Cook promised him to employ counsel to represent his (Ferris') interest in the suit, which he failed to do, but fraudulently combined with the plaintiff, Streeper, and the other parties to the suit to have the lien foreclosed on the land.

The court heard testimony upon this motion and overruled it, and also the motion made in the name of Cook. Ferris appealed, and assigned errors.

Throckmorton, Brown & Bryant, for appellant, cited Hughes v. Maddox, 6 Tex., 90;Lee v. Salinas, 15 Tex., 495; Mason v. Peck, 4 J. J. Marshall, 300; Marr v. Hanna, Id., 643.

G. G. Randell, for appellee, cited Smith v. Allen, 28 Tex., 497.

WATTS, J. COM. APP.

Appellant Ferris claims to have purchased the land upon which the lien was foreclosed from S. A. Cook, one of the defendants, pending this suit; and after the judgment was rendered he appeared and made a motion for a new trial in the name of S. A. Cook, which was overruled by the court, and he now assigns as errors such things as transpired on the trial, and which he claims were erroneous as to Cook.

In support of the proposition that a purchaser from one of the defendants pending the suit may appeal from a judgment rendered against such defendant, appellant relies upon Mason v. Peck, 7 J. J. Marshall, 301, and Marr v. Hanna, Id., 643. The first of these cases was before the court on writ of error, prosecuted by one Triplet, who had purchased the interest of the defendants under a judicial sale pending the suit. The court held that Triplet had such an interest as would authorize him to prosecute a writ of error in the names of those from whom he acquired that interest.

No authority is cited by the court in support of the assertion, nor any other reason given than that Triplet was in privity of estate with the defendants. In the other case, the party who prosecuted the writ of error appeared in the circuit court and asserted his interest; but, notwithstanding, the court, upon the motion of the defendant, who claimed that he had paid the debt...

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10 cases
  • Latta v. Wiley
    • United States
    • Texas Court of Appeals
    • 13 Diciembre 1905
    ...their vendors. Jones v. Robb (Tex. Civ. App.) 80 S. W. 399; Punchard v. Delk, 55 Tex. 305; Delk v. Punchard, 64 Tex. 360; Ferris v. Streeper, 59 Tex. 312; Evans v. Welborn, 74 Tex. 533, 12 S. W. 230, 15 Am. St. Rep. 858; Mussina v. Moore, 13 Tex. 8; Brown v. Dutton (Tex. Civ. App.) 85 S. W.......
  • McCarthy v. Texas Co.
    • United States
    • Texas Court of Appeals
    • 25 Junio 1921
    ...in the county court may appeal from one of its orders, citing Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367; Ferris v. Streeper, 59 Tex. 312; Clarke v. Koehler, 32 Tex. 680; Ennis v. Bestwick, 37 Tex. 662; Tex. Land & Invest. Co. v. Kennedy, 123 S. W. 150; Storrs v. St. Luke's Ho......
  • Gunn v. Cavanaugh
    • United States
    • Texas Supreme Court
    • 9 Junio 1965
    ...(Italics supplied) In Allied Drug Products Company v. Seale, 49 S.W.2d 704 (Tex.Comm.App.1932) it was pointed out that in Ferris v. Streeper, 59 Tex. 312 (1883) this Court held that, 'As a general rule derivable from the various provisions of the statute regulating appeals, only parties to ......
  • Waurika Oil Ass'n v. Ellis
    • United States
    • Texas Court of Appeals
    • 10 Octubre 1923
    ...record presents a condition similar to that discussed by the Supreme Court in the cases of Streeper v. Ferris, 64 Tex. 12, and Ferris v. Streeper, 59 Tex. 312. In the last-named case the Court recognized the right of Ferris, who was not made a formal party to the action, to file a motion fo......
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