Henry C. Roberts v. C. Palmore, 41 Tex. 617

Devine, Associate Justice. Appellee, as the assignee of Blaylock and wife, recovered a judgment for the unpaid balance of the purchase money of a tract of land sold by Blaylock and wife to appellant, he having at the time of purchase executed his note and an instrument in the ordinary form of a mortgage to secure the payment of the same, with a stipulation to pay Blaylock all expense incurred in collecting the debt. Appellee likewise obtained a judgment for seventy-five dollars, attorney’s fees for collecting the debt, with a decree enforcing the vendor’s lien. Appellant assigns as error: “1st.

The court erred in refusing to give the special instructions asked by the defendant, Boberts.” The court, in the charge to the jury, gave in substance the instruction asked by defendant, namely, that the evidence must show that the note sued on was given in consideration of the purchase money of the land described in plaintiff’s petition, and if so, the jury would find the land was liable for the debt. There was consequently no error in refusing to give the charge asked for defendant.

The second assignment is that “ the court erred in refusing to grant a new trial herein.” The grounds set forth in the motion for a new trial were that the verdict was not supported by the testimony, because there was no proof that the note sued on was given for or in consideration of the land mentioned in plaintiff’s petition, nor any proof identifying the note with the sale of the land, and that the testimony was wholly insufficient to establish the vendor’s lien.

The evidence showed that the sale of the land from Blaylock and wife to appellant was executed on the same day that the note and mortgage were executed in their favor by appellant. The instruments executed by the parties showed that Blaylock’s sale and Boberts’ mortgage covered or included the same tract. The plaintiff’s petition charged that the note was given for the unpaid portion of the purchase money, described the land, claimed a vendor’s lien, and prayed for a judgment and decree against the land described.

Beyond a general denial, the defendant did not attempt to controvert the averments of the petition, and on the trial of the cause declined to introduce any evidence. Under the evidence and all the circumstances attending this case the verdict of the jury was proper,.and the court did not err in overruling the motion for a new trial. The third assignment is, that “the court erred in instructing the jury to find the attorney’s fees as reasonable costs, and then rendering a judgment upon the finding of the jury of seventy-five dollars for the attorney’s fees. This assignment has no force.

Appellant had agreed to pay the expenses of collecting the debt, and it was shown in evidence that seventy-five dollars was the amount of plaintiff’s expense in collecting the debt by suit. The judgment is affirmed. Affirmed.