Taylor v. Callaway , 7 Tex. Civ. App. 461 ( 1894 )

We have carefully examined the questions presented on motion for rehearing, and have been greatly aided by the able and exhaustive briefs and arguments of both parties.

1. Upon a careful review of the testimony, it may be that in the original opinion the quotation of the testimony of the witness Prince was not accurately made; but having carefully examined the statement of facts (we having taken the quotation of the evidence from the statement in appellees' brief, which had not been objected to, but apparently acquiesced in by appellants), we think that from the whole testimony the conclusion of the jury, that the loan agency had no notice of appellants' claim at the time it obtained its notes, is supported by the evidence; and while there is some confusion and conflict in the testimony, yet we think that it fully appears that at the time of this suit the loan agency had the original notes, and at least one set of the negotiable notes executed by Vaughan to Johnson.

2. Appellants present the case of Rawles v. Perkey, 50 Tex. 311 [50 Tex. 311], as deciding the question involved in their favor. We have carefully examined that case, and find nothing to change our views as heretofore expressed. In that case the court decided that a purchaser without notice of a prior vendor's lien, taking a deed, paying a part of the purchase money, and executing notes for the balance, is a bona fide purchaser to the extent of the purchase money paid by him, and that the bona fide holder of such notes, who had no notice of the first vendor's lien, would also be protected to the extent of such notes. That rule was applied in this case, the court holding that Vaughan, the purchaser, had no notice of appellants' claim at the time of his purchase; and that the Texas Loan Agency, when it acquired the notes from Johnson, had no such notice. See also Russell v. Kirkbride,62 Tex. 455; Cameron v. Romele, 53 Tex. 244.

The other questions raised in appellants' motion and argument have been fully discussed in the original opinion.

The motion is overruled.

Overruled.