The Southwestern Reporter Volume 48 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1899 Excerpt: ...The court erred In adjudging that the security held by Drake and Shiner by virtue of the vendor's lien on the tract sold by J. P. Devine to Allen McCoy should be first sold, and the proceeds applied to payment of plaintiff's debt, before the tract still owned by J. P. Devine, and mortgaged to Coutlett, should be sold, and the proceeds applied to plaintiff's debt. (2) The court erred In not directing in the decree that the several tracts of land should be sold, and proceeds applied to the payment of plaintiff's debt, In successive and inverse order of alienation and incumbrance, and erred In not directing that the judgment In favor of Drake and judgment In favor of Shiner be first paid before the judgment in favor of Coutlett." The sale to McCoy of certain of the mortgaged land preceded the mortgage to Mrs. Coutlett of other of the mortgaged land; hence the lands incumbered by the Coutlett lien are subject to be first sold, and the decree will be here modifled to give effect to this rule. The disposition of the case on this appeal is that the Judgment, with the above modification, be affirmed In all things, except as to th- issue of homestead: and as to this issue the Judgment will be reversed, and the cause remanded for another trial thereof. On Morion for Rehearing. (Dec. 21, 1808.) NEILU, J. The majority of the court s of opinion that the testimony did not warrant the finding of the jury that T. J. Devine was principal on the notes signed by J. P. Devine and him. As is said in our former opinion: "The notes and the deed or deeds of trust, standing alone, would show that he T. J. Devlne was a Joint principal with J. P. Devine; but the transaction was attended with an application by J. P. Devine for the loan, and an agreement between him and ...