Ryall v. Griffin , 2 Posey 680 ( 1879 )

Opinion.— 1. It was not error to refuse to continue the cause; the application was made too late, and no reason shown why proper diligence was not used. But the application had no merit. For aught that appears Ryall bought the land with the incumbrance and with a warranty deed, and it is not shown that he is in danger of eviction, or that his vendor is not able to make good any loss he may suffer in consequence. If he feared injury on account of the outstanding debt to the Giltner heirs and circumstances entitled him -to any larger relief than his warranty deed gave him, his remedy was to bring the money into court and perhaps demand further security. But he could not be permitted to delay the plaintiffs’ case until he made publication and brought into court parties who resided out of the state and were unwilling to participate in the suit. Terrell v. De Witt, 20 Tex., 206.

2. The other assignments of error are not supported by the record. The judgment shows that the amount for which it was rendered was part of the note for the purchase money of the land, and doubtless the facts proven on the trial established that fact, and whatever other facts were necessary to support the judgment. It may have been sjaown that the defendant was entitled to no offsets, that there were no outstanding liens on the property, and that plaintiff owed the Giltner heirs nothing. There is no error in the judgment, but we think this writ of error was manifestly prosecuted for delaj7.

The judgment affirmed with ten per cent, damages.