
    HERGIST v. STAUTBERG.
    (No. 6961.)
    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1915.)
    Bills and Notes <&wkey;523 — Actions—Evidence — Sufficiency.
    In trespass to try title where defendant asserted tide by virtue of an assignment to him of notes reserving a vendor’s lien, evidence held insufficient to show that the notes had ever been transferred to defendant.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1822-1825; Dec. Dig. <&wkey;> 523.]
    Appeal from District Court, Harris County ; John A. Read, Judge.
    Action by Frank H. Stautberg, Jr., against W. H. Hergist. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    N. C. Abbott, of Houston, for appellant.
   LANE, J.

This suit was originally instituted by Frank H. Stautberg, Jr., against T. H. McGregor, I. D. Eagan, A. B. Carr, Travis Jones, and W. H. Hergist, in the ordinary form of trespass to try title to certain lots in the city of Houston. By his second petition he dismisses his suit against defendants T. H. McGregor and I. D. Eagan, and continued his suit against the other defendants only. Defendant Hergist answered: First, by general denial and plea of not guilty; second, that prior to the 26th day of October, 1896, Frank Stautberg, Sr., was the owner of the property sued for, and that on said date he entered into an agreement in writing with defendant Frank Stautberg, Sr., by the terms of which it was agreed that, in consideration of $5 cash paid by said Jones to said Stautberg, and tbe execution and delivery by said Jones of 45 promissory notes each for tbe sum of $5 to said Stautberg, tbe said Stautberg was to execute and deliver to said Jones a deed of conveyance by wbicb be was to convey to said Jones said property involved in tbis suit; that said cash was so paid and said notes were executed and delivered, and that on tbe 26tb day of May, 1897, said Stautberg did so convey said property to said Jones; that a vendor’s lien was retained by said Stautberg in said notes and deed to secure tbe payment of all of said notes; that all of said series of notes from Nos. 12 to 45, 34 in number, were transferred to appellant, W. H. Hergist, by tbe agent of Stautberg in about tbe year 1900; that all of said notes became due and were wholly unpaid, and that thereafter, to wit, on the 19th day of December, 1901, Hergist brought suit upon said notes in tbe district court of Harris county, and in said suit judgment was rendered in bis favor for $260.12, tbe aggregate sum due on said notes, and for a foreclosure of bis lien upon tbe property in question; that said judgment and lien has been kept alive by tbe issuance of executions or orders of sale, and the same are still a valid subsisting judgment and lien; that appellant is tbe owner of said judgment and lien; and concludes with a prayer: (a) For title to tbe property; (b) that tbe court ascertain what amount is still due him on bis said judgment; (c) that bis lien be established and preserved; and (d) that if it be found by tbe court that he has no title to tbe land under his former judgment, the same be ordered sold under a decree entered in tbis cause, and tbe proceeds be first applied to tbe payment of bis said former judgment. Appellee by supplemental petition denied each and all tbe material defensive matters pleaded by appellant, and further averred that on January 23, 1897, Frank Stautberg, Sr., sold tbe lots in question to defendant Jones; that in part payment therefor Jones executed and delivered the 34 notes claimed by appellant to have been transferred to him; that said notes were never paid by Jones to Stautberg, Sr., and that Stautberg, Sr., has never transferred tbe same to any one; that said Jones never went into possession of said lots, but abandoned tbe same; that said lots stood vacant and unfenced until March 13, 1906, at wbicb time Stautberg, Sr., rescinded tbe sale made by him to Jones and conveyed tbe property in question to Frank Stautberg, Jr., ap-pellee in this case; that Frank Stautberg, Jr., took possession of said property in 1906 and erected a fence around tbe same; and that be then became tbe owner of said property and is now such owner. As tbe other parties to tbis suit have not appealed from tbe judgment entered, it is unnecessary, for tbe proper disposition of them, to state tbe nature of their pleas.

Upon tbe issues joined between appellant and appellee as above stated, tbe case was submitted to tbe jury upon special issues, only two of wbicb need be here stated for a disposition of tbe matters presented to this court. These two issues were as follows:

“Did or did not the defendant, William H. Hergist, purchase the unpaid purchase money notes executed by Travis Jones substantially as alleged in his answer?”
“Did or did not Frank Stautberg, Sr., authorize J. M. Coleman to dispose of the Travis Jones notes for him?”

Both of these questions were answered by tbe jury in tbe negative. Thereupon judgment was entered for the appellee, Frank Stautberg, Jr.

By appellant’s third assignment in bis brief be thus states tbe issue, and tbe only issue, for tbe consideration of tbis court:

“The only question presented in this case is whether the verdict is supported by the evidence.”

Being conceded that tbis is tbe only issue, we shall confine tbis opinion to that issue alone. It being conceded that tbe notes claimed by appellant to have been transferred to him were originally tbe property of Frank Stautberg, Sr., it becomes necessary, if appellant is to recover in any manner in this suit, for him to show that said Staut-berg, Sr., bad, in person or by agent, transferred said notes to him. These issues were clearly submitted to tbe jury and, upon evidence which we think would support tbe findings of the jury, tbe jury found that Frank Stautberg, Sr., bad never in person nor through J. M. Coleman transferred tbe notes in question to appellant, Hergist, and that said Hergist never purchased said notes nor ever became tbe owner thereof. Frank Staut-berg, Sr., testified positively that be did not in person transfer said notes to Hergist or to any one else, except one Brown, for tbe purpose of securing him as a bondsman, which transfer has been released; nor did be authorize J. M. Coleman to transfer said notes to any one as bis agent, and we think that there were other facts and circumstances shown by tbe evidence wbicb would authorize and warrant tbe jury in its finding that tbe title to said notes has never passed from Frank Stautberg, Sr., to appellant Hergist.

Therefore, we find that tbe judgment of tbe court is amply sustained by tbe evidence, and overrule appellant’s assignment of error, and tbe judgment of tbe court below is in all things affirmed.

Affirmed. 
      <i&wkey;For other cases see same topic anfl KEY-NUMBER in ail Key-Numbered Digests and Indexes
     