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property at the time of its taking, if it is an increasing or developing demand, may be taken in consideration as to its reasonable future results, as entering into the condition and value of the property. Situated, as the evidence in this case shows the property in controversy to be, in close proximity to existing settlements around it, east and south of the Government post, contiguous to the rapidly developing addition of Woodlawn, unsettled and susceptible of no remunerative use at present, it was an important inquiry in estimating the damages as to whether its value depended upon any increase or development of the property that could be expected in the immediate future. In view of which we think the court erred in refusing to give the charge asked by appellant.
The appellant having shown that he had recently sold a small tract similar to and in the immediate vicinity of the land in question, offered to prove that the price paid therefor was $750 per acre.
This the court, upon objection of appellee, refused to permit him to do, and the ruling of the court in rejecting the testimony, as well as its ruling in excluding other evidence offered of a similar nature, is assigned as error. Actual sales of other similar land in the vicinity, made near the time at which the value of the land taken is to be determined, are admissible in evidence for the purpose of arriving at the amount of compensation in cases of this character. 10 Am. and Eng. Enc. of Law, 1155; Suth. on Dam., sec. 799; Lewis on Em. Dom., sec. 443; Gardner v. Brooklyn, 127 Mass., 358; Culbertson v. Chicago, 111 Ill., 651; Cemetery Assn. v. Railway, 121 Ill., 199; Cherokee v. Sioux City, etc., 52 Iowa, 279; Railway v. Greeley, 23 N. H., 242; Washburn v. Railway, 59 Wis., 364; Blair v. Rose, 60 N. E. Rep., 10; Paducah v. Allen, 63 S. W. Rep. (Ky.), 981; Railway v. Gilchrist, 4 Wash., 509. Indeed, it is said by Lewis on Eminent Domain, at the section cited, that the propriety of allowing proof of the sales of similar property to that in question, made at or about the time of the taking, is almost universally approved by the authorities. And it is said by the Court of Appeals of Kentucky in Paducah v. Allen, supra: “Such sales, when made under normal and fair conditions, are necessarily a better test of the market value than speculative opinions of witnesses ; for, truly, here is where ‘money talks.»
We know of no case in this State where the question has been directly passed upon, but in Chaney v. Coleman, 77 Texas, 100, the Supreme Court says: “Before a value can be given to it by proving the average value of farms in that vicinity, it should be proved that the improve ments and other things to be considered in estimating its value correspond with like things on the farms wich which it is classed.” This, we think, is a recognition of the principle shown by the authorities cited.
Evidence of this character was introduced in this case by the appellee, and, as appellant sought to introduce testimony of the same nature, was of course not objected to by him. The evidence offered by the appellant of the sale of adjacent lands of the same character just prior to the
institution of the condemnation proceedings in this case, was, under the principles stated, clearly admissible, and the court erred in excluding it.
It is said by Lewis on Eminent Domain: "In regard to the degree of similarity which must exist between the property concerning which such proof is offered, and the property taken, and the nearness in respect to time and distance, no general rule can be laid down.” But we are satisfied from the authorities cited that where sales of such property in the same vicinity were made at a time so remote from that at which the property is condemned as to show that the circumstances and conditions by which value is estimated and determined were essentially different from what they were when condemnation proceedings were instituted, should not be admitted. We think, therefore, that the price paid by appellant ten years ago for the tract of land in controversy (though there is testimony to the effect that its market value has remained unchanged since its purchase), when the facts and conditions introduced in evidence by him to show its value when taken by appellee are considered, was not competent evidence in this proceeding of its market value, and that the court properly excluded such evidence, as well as all other testimony offered by appellant of sales so remote as to furnish no criteria of the market value of the property at the time it was taken by the appellee.
The witness J. N. Groesbeck, having shown himself familiar with the locality of the land and its general surroundings, and that he was competent to testify as to the value of property in that locality, was asked what, in his opinion, was the market value of the land in the neighbor. hood per acre. The question was objected to because calling for the "cash” market value, and the objection sustained. The ruling of the court in sustaining the objection is assigned as error. We think that the assignment is well taken, and that what we have said in the preceding part of this opinion demonstrates that it was only necessary for the witness to give his opinion as to the market value of the land at the time it was taken. Railway v. Ruby, 80 Texas, 172; Lewis on Em. Dom., sec. 437; Mills on Em. Dom., 168.
The court did not err in refusing to permit appellant to testify as to the amount offered by himself and Mr. Forke for the 50-acre tract immediately adjoining the property in controversy and owned by Mrs. Sehorn. It is not competent as evidence of value to prove offers for adjacent and similar property, or the price at which the owners of such property have offered it for sale. Lewis on Em. Dom., 2 ed., 446, and authorities cited in note.
What we have said we think disposes of all the questions raised by the assignments of error necessary to a proper disposition of them upon. another trial.
For the errors indicated, the judgment of the County Court is reversed and the cause remanded.
Reversed and remanded Vol. 29 Civil-28.
E. B. CARVER ET AL. V. J. S. MAYFIELD LUMBER COMPANY.
Decided May 7, 1902.
1.-Attorney Fees in Note Interest.
Where the note sued on stipulated for interest and 10 per cent attorney fees, judgment was properly rendered for 10 per cent of both principal and interest as attorney fees. 2.-Same-Interest.
Where attorney fees are included in a judgment they bear interest at the same rate as the principal sum 3.-Same-Contract.
In an action on a note stipulating for 10 per cent attorney fees it is not necessary to offer evidence that the amount contracted for was reasonable. 4.-New Trial-Diligence Lacking.
Where defendants failed to plead a judgment in offset, they were not entitled to have a new trial allowed them for the purpose of pleading it.
Error from Dallas. Tried below before Hon. T. F. Nash.
Matlock, Miller & Dycus, for plaintiffs in error.
D. H. Morrow, for defendant in error.
NEILL, ASSOCIATE JUSTICE.—This suit was brought by defendant in error against E. B. Carver, F. J. Cook, and G. L. Ellis, plaintiffs in error, upon the promissory note described in our conclusions of fact.
The plaintiffs in error, defendants below, answered only by a general denial. The judgment was rendered in favor of defendant in error against all the plaintiffs in error for $1430, with interest at 10 per cent per annum from date of judgment. After it was entered defendant in error entered a remittitur of $45, leaving the amount of the judgment $1385, from which the appeal is prosecuted.
Conclusions of Fact.—Plaintiffs in error, defendants below, on the 19th of May, 1900, executed and delivered to defendant in error, plaintiff below, their promissory note for the sum of $1150, due four months Dallas, Texas, with interest at the rate of 10 per cent per annum from after date, payable at the office of the National Exchange Bank of date, with 10 per cent attorney's fees if collected by law or placed with an attorney for collection. The note has never been paid, and, after payment had been refused, was placed in the hands of an attorney for collection.
Conclusions of Law.—1. As the note stipulated for interest at 10 per cent per annum from date and 10 per cent attorney's fees if collected by law, it was not error for the court to render judgment for the principal and interest due, and 10 per cent of both such principal and interest, as attorney's fees. Hopkins v. Halliburton, 25 S. W. Rep., 1005;
Morrill v. Hoyt, 83 Texas, 59; Krouse v. Pope, 78 Texas, 485; Behring v. Dignowity, 23 S. W. Rep., 288.
2. When attorney's fees are included in the judgment, they bear interest at the same rate as the principal sum. Llano Imp. Co. v. Eubanks, 5 Texas Civ. App., 108, 23 S. W. Rep., 613; Washington v. Bank, 64 Texas, 6; Lyons v. Bank, 24 S. W. Rep., 304.
3. The parties having stipulated in the contract for 10 per cent as attorney's fees, it was not necessary to offer evidence that the amount contracted for was reasonable.
Plaintiffs in error not having plead in offset the judgment referred to in their motion for a new trial, were not entitled to have the judgment in this case set aside and a new trial granted for the purpose of allowing them to plead it. There is no error in the judgment, and it is affirmed.
Affirmed. Writ of error refused.
ANTON WEINERT V. WILLIAM SIMANG ET AL.
Decided May 14, 1902. 1.-Abstract of Judgment—Evidence-Certificate.
The original certificate of the county clerk required by law to be given to the owner of a judgment at the time an abstract of it is recorded is not objectionable as secondary evidence when offered to prove the record of such abstract, nor inadmissible because it fails to give the page of the record. 2.-Same-Deed in Fraud of Creditors.
Where the deed of a judgment debtor under which defendant claims was not in good faith, it is immaterial that an abstract of a judgment against the grantor under which plaintiff claims through a sheriff's sale was not recorded until after such deed was made. 3.-Evidence-Execution-Date-Immaterial Variance.
Where plaintiff alleged the levy of the execution through sale under which he claimed as of July 11th, and the sheriff's return showed it as of July 8th, the variance was immaterial. 4.-Same-Notary's Certificate to Deposition.
Where a motion was made to strike out a notary's certificate to a deposition, certifying that the witness had refused to answer the questions, and evidence was heard as to the truth or falsity of the certificate, the action of the court in denying the motion and refusing to allow the witness to testify at the trial will not be revised in the absence from the record of the evidence so heard. 5.-Judgment-Verdict Not Supporting.
Where verdict was ren ed against two defendants for the land and the damages claimed by plaintiff, a judgment thereon against both defendants for the land, but against only one of them for the damages, was unauthorized.
Appeal from Bexar. Tried below before Hon. J. L. Camp.
A. W. Seeligson and Paschal & Ryan, for appellant.
Geo. C. Allgelt, for appellees.
FLY, ASSOCIATE JUSTICE.—This is an action of trespass to try title to lot No. 12 in block No. 3, corner of Matamoras and San Saba streets, city of San Antonio, instituted by William Gembler against William Simang and Anton Weinert. In addition to pleading the statutory matters required, Gembler alleged that he claimed title to the land through a sheriff's sale of date July 11, 1896, which was made by virtue of an execution issued under a judgment held by Gembler against William Simang, and he alleged that appellant was claiming the land through a deed made to him by William Simang, which deed was made for the purpose of defrauding the creditors of the said Simang. Simang filed a disclaimer. Appellant filed general and special exceptions, and pleaded not guilty, that he was a purchaser in good faith without notice of Simang's insolvency, and for a valuable consideration, and that there was an outstanding title in one Joel Hays. Under instructions of the court the jury returned a verdict in favor of Gembler for the land and $1240 for rents.
The first assignment of error complains of the admission in evidence of the abstract of the judgment in the case of Gembler v. Simang, and the county clerk's certificate of the record of the same, the grounds of objection being that such evidence was secondary; that the page of the record of the judgment was not given in the certificate and that the abstract was not issued, filed, or recorded until after the deed from Simang to Weinert was recorded. A valid judgment against Simang was proven, the issuance of a valid execution thereunder, and a levy and sale of the land, and while under the facts it was unnecessary to introduce any evidence as to the judgment being a lien, we are unable to see that its introduction in evidence could have been in any possible way injurious to the rights of appellant. However, the certificate was properly admitted in evidence. It was the original certificate required by law to be given to the owner of the judgment and the best evidence that could be procured. The objections as to the page of the record not being given is not meritorious. The objection that the abstract was not recorded until after the deed to Weinert was executed is worth nothing unless the deed was made in good faith, which does not appear from the record.
The petition alleged that the levy of the execution was made on July 11, 1896, while the sheriff's return showed that the levy was made on July 8, 1896. The variance was not calculated to mislead or surprise appellant and was immaterial. Taylor v. Carter, 62 Texas, 489; Wiebusch v. Taylor, 64 Texas, 53; Longby v. Caruthers, 64 Texas, 287; Bank v. Stephenson 82 Texas, 435. The other grounds on which variance is claimed are equally untenable.
The only other questions involved in this case are in connection with the overruling of a motion to strike out the return of the notary public on a commission to take the depositions of appellant, and a refusal to allow him to testify in person or by depositions taken at his own instance. It appears from a bill of exceptions that on August 31, 1897,