Galveston Exhibition Ass'n v. Perkins

• Decision Date: 27 February 1891
• Citation: 15 S.W. 633
• Court: Texas Supreme Court
• Parties: GALVESTON EXHIBITION ASS'N <I>et al.</I> v. PERKINS <I>et al.</I>

Page 633

15 S.W. 633

GALVESTON EXHIBITION ASS'N et al. v. PERKINS et al.

Supreme Court of Texas.

February 27, 1891.

Appeal from district court, Galveston county.

Willie, Mott & Ballinger, Scott & Levi, and Davidson & Minor, for appellants. Henry J. Labatt, for appellees.

STAYTON, C. J.

A. J. Perkins & Co. filed their petition in the district court of Galveston county on the 19th of August, 1889, against the Galveston Exhibition Association, the Leon & H. Blum Land Co., the Island City Savings Bank, May & Wainwright, B. Blum & Co., Henry Rosenberg, Joseph E. Wallis, Edward D. Garrett, and M. P. Hennessy, alleging that the Galveston Exhibition Association was indebted to them on open account in the sum of $2,003.58 for work and labor done and materials furnished for certain improvements on ten-acre outlots 101, 102, 103, 104, 126, 127, 128, 129, in the city of Galveston, commonly known as the "Fair Grounds," and sought a foreclosure of alleged liens thereon. The petition alleged that the Leon & H. Blum Land Co., the Island City Savings Bank, Henry Rosenberg, Joseph E. Wallis, and Edward D. Garrett claimed or pretended to claim some interest in the said real estate, and upon this allegation of interest they were made defendants. The petition also alleged that May & Wainwright, B. Blum & Co., and Edward Ketchum claimed liens upon the same property; and that the defendant M. P. Hennessy had seized under the judgment some of the material upon which plaintiffs claimed lien and had sold the same, and sought judgment against him for $150, the alleged value. All the persons alleged to claim liens came in and asserted them, those claims being similar in character to that asserted by plaintiffs. The Galveston Exhibition Association, a private corporation, answered by demurrer, and a general denial of the claim of plaintiffs and of Ketchum. All of the other defendants answered by demurrers, and general denials of all facts alleged other than their claims of interests in the property on which liens were claimed. The case was tried by the court without the intervention of a jury, and judgment rendered in favor of A. J. Perkins & Co. against the Galveston Exhibition Association for $2,039.63; in favor of Edward Ketchum against the association for $673.70; in favor of May & Wainwright for $775.45; in favor of B. Blum & Co. for $184.86, and adjudged the same to be prior liens on all the buildings, erections, or improvements on outlots 101, 102, 103, 104, 126, 127, 128, and 129 in the city of Galveston, and ordered the same sold and the money applied pro rata to the payment of the judgments. Without ascertaining or decreeing that the Galveston Exhibition Association had any right or title in the real estate whatever, the court went on to decree that the said judgments were liens on all the right, title, interest, or claim which the said Galveston Exhibition Association held between the 28th day of June, 1889, and the 20th day of July, 1889, in and to said lots of land, and also ordered all the title, interest, and claim which the Galveston Exhibition Association held in and to said lots to be sold. It also gave judgment against the defendant Hennessy for $150. Whatever right the Galveston Exhibition Association had in the property described in the petition is based on the following instrument: "The state of Texas, county of Galveston. Know all men by these presents that we, Henry Rosenberg, being the owner of seventeen-seventieths (17-70) of the hereinafter described property; Leon Blum, being the owner of twenty-two seventieths (22-70) thereof; D. The Ayres, being the owner of twenty-one seventieths (21-70) thereof; and the Island City Savings Bank, a body politic and corporate under the laws of the state of Texas, being the owner of ten-seventieths (10-70) thereof, — do hereby promise and obligate and bind ourselves unto the Galveston Exhibition Association that upon the performance by the said association of the covenants hereinafter agreed upon, that we will, upon a reasonable request of the said Galveston Exhibition Association, at any time after the 30th day of June next, the said association having complied with its covenants, at our own proper cost and charge execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, a deed or deeds of conveyance, such as will be sufficient to convey, assure, and confirm to the said Galveston Exhibition Association, its successors and assigns, a good and absolute and indefeasible estate of inheritance in fee-simple, clear of all incumbrances, of and in the following premises and property, to-wit: All those certain tracts or parcels of land lying and being situate in the county of Galveston and state of Texas, namely, outlots Nos. 101, 102, 103, 104, 126, 127, 128, and 129, according to the map or plan of the Galveston City Company of the city of Galveston, together with all the buildings and improvements of every kind and description upon said premises. The condition of the above obligation is such that whereas the said Galveston Exhibition Association has paid to us the sum of ten thousand ($10,000) dollars cash, and has agreed to pay us the additional sum of fourteen thousand ($14,000) dollars on or before the 30th day of June, A. D. 1889, now, if the said Galveston Exhibition Association shall well and truly pay us the said sum of fourteen thousand ($14,000) dollars on or before the 30th day of June, A. D. 1889, then the above obligation is to remain in full force and effect; but if the said association fails to pay the said sum of fourteen thousand ($14,000) dollars on or before the 30th day of June, A. D. 1889, then this obligation is to become null and void, and of no force or effect, and the said association shall...