Norris v. Wilkens
| Decision Date | 26 November 1927 |
| Docket Number | (No. 10179.) |
| Citation | 3 S.W.2d 126 |
| Parties | NORRIS v. WILKENS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Towne Young, Judge.
Action by John D. Wilkens and wife against Leslie H. Norris and another, in which a writ of sequestration was sued out. Subsequently a receiver was appointed over the opposition of the named defendant, and he appeals. Reversed and rendered.
Lyle Saxon, of Dallas, for appellant.
Renfro, Ledbetter & McCombs, of Dallas, for appellees.
John D. Wilkens and wife filed a suit against Miss Mab Harrison, maker of a promissory note for $2,650, given for a part of the purchase money for a house and lot situated in Greenland Hills addition to the city of Dallas, conveyed by plaintiffs to her, and to secure its payment a lien was specially retained on the property in the conveyance, and also was given by a trust deed executed by the maker. Leslie H. Norris, appellant herein, purchased the property from Miss Harrison, subject to the existing incumbrances, and, at the time the suit was instituted, he and his family were occupying the same. Plaintiffs made Norris a party defendant, and prayed for personal judgment against the maker of the note, and for foreclosure as against all defendants.
Based on an affidavit to the effect that plaintiffs feared the defendants would make use of their possession to injure the property and convert the fruits and revenues thereof to their use, a writ of sequestration was sued out, by virtue of which a constable of Dallas county seized and took into his possession the premises. The same was replevied by Norris, and accordingly he was permitted to retain possession.
Plaintiffs filed a motion to quash the replevy bond on the ground that it was not conditioned to pay rents to accrue on the property. This was overruled by the court. Thereupon plaintiffs filed an amended original petition, setting up the same cause of action as in their original petition, alleged that the condition of the vendor's and deed of trust liens had not been performed by the defendants, or either of them, that the property was probably insufficient in value to discharge the indebtedness, and prayed that, pending final determination of the suit, a receiver be appointed to take possession of the premises, to manage, control, preserve, rent, and collect rents and revenues therefrom, etc.
Over the opposition of appellant, Norris, after hearing evidence, the court appointed a receiver, with authority as outlined in the prayer of plaintiff; to all of which Norris excepted, gave notice of and has prosecuted this appeal.
As we view the case, it will...
To continue reading
Request your trial
-
Sefcik v. Sheker
...10 F.Supp. 409, 411. An election becomes a true estoppel when some one changes his position in reliance on it. See Norris v. Wilkens, Tex.Civ.App., 3 S.W.2d 126. We do not imply there are no cases to the contrary. The case of Byerly v. Sherman, supra, involved a devise made expressly in lie......
-
American Savings & Loan Ass'n of Houston v. Musick
...contracts. In the Supreme Court approved portion of the opinion, the court of civil appeals stated the rule to be as follows: In Norris v. Wilkens, 3 S.W.2d 126 (Tex.Civ.App., Dallas, 1928, n.w.h.), the Court said: 'The doctrine seems to be well established that, where a litigant chooses be......
-
Custom Leasing, Inc. v. Texas Bank & Trust Co. of Dallas
...his right to exercise the other remedy and is precluded from resorting to it. Ward v. Green, 88 Tex. 177, 30 S.W. 864 (1895); Norris v. Wilkens, 3 S.W.2d 126 (Tex.Civ.App.1927, no writ); Seamans Oil Co. v. Guy,115 Tex. 93, 276 S.W. 424 (1925). In 28 C.J.S. Election of Remedies § 8 (p. 1073)......
-
Kingsbery v. Phillips Petroleum Co.
...to the leasehold estate by the pendency of the cancellation suit was held to bar the recovery of the delay rentals. Norris v. Wilkins, Tex.Civ.App. Dallas, 3 S.W.2d 126, was a suit to foreclose a mortgage on a house and lot in which plaintiff had issued a writ of sequestration and the defen......