Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 94
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94 SHORT V. ABERNATHY. [Tyler Term,
by consent of all the parties, a sheriff sale may be made
on a credit. (Kilgore v. Peden, 1 Strobh., 18; 6 Cowen,
467; 3 Selden, 453.) If, then, in this case the plaintiff and
sheriff, at his request, made through his agent, extended
time to defendant for so much of his bid as plaintiff rightfully
controlled, it is not perceived that the transaction is
not in substance pro tanto a sale of the land consummated
through the powers of a sheriff's deed. The substantial
principle upon which the vendor's lien is said to rest, "that
a person who has gotten the estate of another ought not
in conscience, as between them, to be allowed to keep it,
and not to pay the full consideration money," seems applicable
to the case. (Story's Eq., sec. 1219.) The facts of
the case scern to us to be such as entitled the plaintiff in
equity to the lien. (Wynn v. Flannegan, 25 Tex., 778.) By
his consent only was it that defendant was enabled to receive
a deed without paying in full in cash. The deed to
that extent may be regarded as the act of plaintiff. So
regarding it, the law would uphold the lien, unless it is
waived either expressly or by acts showing such intention.
(Briscoe r. Bronaugh, 1 Tex., 326.)
It is not perceived that the bankruptcy of George Yarborough
affected the right of Wood to such offsets as lie
acquired under the honest belief that George Yarborough
was the party with whom he had dealt and to whom he
The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
RICHARD SHORT ET AL V. AMANDA M. ABERNATHY ET AL.
1. NOTE PAYABLE IN SPECIFIC ARTICLES.-Upon the failure to deliver
such specific articles at maturity, the obligation becomes absolute for
the sum specified in money.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/102/: accessed August 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .