Fisk v. Wilson
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 430 |
| Parties | JOSIAH FISK AND OTHERS v. WALKER WILSON. |
| Court | Texas Supreme Court |
Where the apparent title to land is in the name of a deceased person, and his administrator applies for and obtains an order to sell the same as the property of the intestate, injunction is the proper remedy of the real owner, and not a contestation of the sale in the probate court, to be followed up by appeal or certiorari.
Where the petition for an injunction, being under oath, alleged the loss of an instrument which was evidence of the plaintiff's right, it was held that secondary evidence of the existence and contents of the instrument was properly admitted, without further showing of the loss of the original.
Where the mortgagee obtained an order of the probate court for the sale of the mortgaged property, and a third party gave notice to the bidders at the sale that he was the real owner of the land, and that the title stood in the name of the deceased in trust for him, and the land was bid off by the mortgagee and another, and such third party afterwards obtained an injunction restraining further proceedings in the matter, which was served on the chief justice before the confirmation of the sale, the injunction was perpetuated, upon payment of the mortgage by the plaintiff.
Where the appellant would not, in any view of the law of the case, have been entitled to a verdict, the court will not revise the refusal of instructions asked by him.
Where the assignment of errors indicates no particular charge or ruling of the court upon instructions, which is complained of, but refers, in general terms, to “the several charges refused,” and “each several charge and instruction given,” and, on reference to them, they are found to be numerous, this court will not deem it necessary to revise them, unless the right and justice of the case may seem to demand it.
Where a deed, absolute on its face, was made in 1838, and the grantee mortgaged the property in 1846, and in 1850, after the death of the grantee, upon the institution of proceedings to enforce the mortgage, the grantor in the deed came forward and alleged that the deed, though absolute on its face, was in fact made in trust for a particular purpose, as shown by the bond of the grantee taken at same time, but alleged to be lost--there being no other act of adverse claim proved, except the mortgage, it was held to be clear that no period of limitation or prescription had intervened to bar the right of the grantor.
Appeal from Travis. In the year 1838 Walker Wilson, the plaintiff in the court below, conveyed the land in controversy in this suit to W. B. Goodman. On the 8th of September, 1846, Goodman executed a mortgage upon the land to Isaac Applewhite, to secure the payment of said Goodman's note for $100, payable to Applewhite at six months. At January term, 1850, of the probate court of Travis county, Josiah Fisk obtained letters of administration on the estate of said Goodman. At February term, 1850, of the probate court, said administrator obtained an order for the sale of the land, to pay the mortgage debt to Applewhite, returnable at April term. On the 4th of June, 1850, the land was sold to F. W. Chandler and Isaac Applewhite. On the same day, Wilson prepared and verified his petition in this suit, for an injunction against the administrator and for an order to the probate court to stay further proceedings. It appeared from the petition and evidence that the deed to Goodman, though absolute on its face, was in fact in trust for the purposes of sale; and that Wilson had taken a bond from Goodman to that effect at the time. The petition alleged the loss of the bond; and it charged Applewhite with notice. The petition also charged Chandler with notice before the sale. The petition prayed that in the event that he should fail to prove that Applewhite had notice of the trust when he took the mortgage from Goodman, enough of the land might be sold by order of the court to pay that debt and interest, and that he have judgment against the estate of said Goodman for a like amount.
The order for injunction was made on the 6th of June, and the petition and bond were filed on the 17th. The injunction was issued to and served on the chief justice June 18th. At the June term of the probate court, after the service of the injunction, the sale was confirmed.
Applewhite, Fisk and the heirs of Goodman were cited. Chandler and Applewhite filed a petition of intervention, alleging the particulars of their title. Chandler had been made a defendant by an amendment of the petition.
The court instructed the jury to find the facts specially, in case they found that the deed to Goodman was made in trust, as alleged. The verdict was as follows:
We, the jury, find for the plaintiff, and that the said plaintiff conveyed to W. B. Goodman the land in trust for the use and purposes set forth in plaintiff's petition, and that Goodman executed a bond to said plaintiff to reconvey the said land to plaintiff.
We, the jury, believe from the evidence that the defendant Goodman executed the note and mortgage to Applewhite, as set forth in the pleadings, and that Applewhite had no knowledge of the claim set up by the plaintiff Wilson to the land in controversy, and therefore we, the jury, find for said Applewhite the amount of his note, one hundred dollars debt, and interest fifty-six dollars.
We, the jury, believe from the evidence that the injunction issued in this case was served on the chief justice of the county court before the confirmation of the sale of the land to Applewhite and Chandler.
The injunction was perpetuated upon payment of the mortgage, and the deed from Wilson to Goodman ordered to be cancelled.
There was a statement of facts, the purport of which, as well as the points made in the progress of the case, so far as they are material to this report, appear from the opinion.
Hamilton and Green, for appellants.
Duval and Paschal, for appellee.
There is nothing in the objection to the ruling of the court refusing to dissolve the injunction. The defendants undertook to set out specifically the grounds of their motion; and that the plaintiff had another remedy by appeal from the order of sale is not one of them. But if it were, it was no answer to the case made by the petition. The district court was the proper forum in which to assert the...
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Miller v. Fenner, Beane & Ungerleider
...to point the court to the particular rulings or ground of error on which the party intends to rely for reversing the judgment. Fisk v. Wilson, 15 Tex. 430, 435; Byrnes v. Morris, 53 Tex. 213; Legon v. Withee, 25 Tex. 350; Clements v. Hearne, 45 Tex. 415; Randall v. Carlisle, 59 Tex. 69. It ......
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... ... his majority. 2 Revised Statutes, 1889, sec. 6767; Wood on ... Limitations of Actions [1 Ed.] sec. 208; Fisk v ... Wilson, 15 Tex. 430; Dyer v. Wittler, 89 Mo ... 97; Harris v. Ross, 86 Mo. 89; Gudgell v. Lydings, ... Ky. Ct. of App. 10 S.W. 466 ... ...
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