Burgess v. Millican
Texas Supreme Court
Appeal from Parker. Tried below before the Hon. J. A. Carroll. April 9, 1878, A. S. Burgess brought suit in the District Court of Parker county against Samuel H. Millican. The petition gave a history of the transaction out of which the litigation arose, and it was alleged that in 1869 one Jane Collie died, in Parker county, having at her death a homestead or preemption of one hundred and sixty acres of land, known as “ the Jane Collie preemption.”
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Appeal from Parker. Tried below before the Hon. J. A. Carroll. April 9, 1878, A. S. Burgess brought suit in the District Court of Parker county against Samuel H. Millican. The petition gave a history of the transaction out of which the litigation arose, and it was alleged that in 1869 one Jane Collie died, in Parker county, having at her death a homestead or preemption of one hundred and sixty acres of land, known as “ the Jane Collie preemption.” She left four children, then minors,—W. F., John W., A. J., and Libitha A. Collie; that shortly after their mother’s death these children were…
1Opinion of the Court
Moore, Chief Justice.
It was decided by this court in the case of Dunlap v. Wright, 11 Tex., 597, and has ever since been regarded by it as settled law, “ that when a mortgage for the payment of the purchase-money for land is executed simultaneously with the deed by which it is conveyed, the vendor has, until the purchase-money is paid or the mortgaged foreclosed, the superior right; and if the vendor go into possession after the vendee has made default, he cannot be turned out by process of ejectment or trespass to try title, notwithstanding the claim for the purchase-money may be barred by…
2Cases cited2 opinions
- Stow v. TifftNew York Supreme Court · 1818
- Dunlap's Adm'r v. WrightTexas Supreme Court · 1854
3Cited by20 opinions
- McPherson v. JohnsonTexas Supreme Court · 1888
- Baker v. ComptonTexas Supreme Court · 1879
- Stitzle v. EvansTexas Supreme Court · 1889
- Hale v. Baker & RiceTexas Supreme Court · 1883
- Huffman v. MulkeyTexas Supreme Court · 1890
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