Volume 1 — Posey's Unreported Cases

<p>1. Deeds.— An instrument of writing in form as follows:</p> <p>“Republic op Texas, County of Sabine.</p> <p>“ This indenture, made and entered into this the 20th day of November, 1839, by and between Mastín Latham and his wife Sarah, of the republic aforesaid, of the first part, and William F. Henderson, of the county of Nacogdoches, and republic aforesaid, of the second part, witnesseth: that the said party of the first part, for and in consideration of the clearing out (i. e.), locating; surveying and paying the government dues on one league of land, the headright of said Mastín Latham, by these presents have granted, bargained, sold, aliened, enfeoffed, transferred, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, transfer, convey and confirm unto the said party of the second part, his heirs and assigns, that certain tract or parcel of land ” (describing it, and after clause of general warranty concluding), ‘ ‘ and hereby waiving all laws or matters of form that might impair this deed of conveyance, provided that said league of land shall be divided equally, according to quality and quantity, by said Henderson or his agent, as soon as possible, and said Latham to take choice of. halves,” is an absolute, unconditional conveyance, and not an executory contract.</p> <p>2. Land — Forfeiture fob breach of conditions in a deed.—See this case for a full discussion of the law governing estates in land upon condition, and their forfeiture for breach of conditions precedent or subsequent, contained in the deed creating the estate.</p> <p>3. Stale demand — Trespass to try title.—The antiquity of a previous perfected and vested right does not involve the doctrine of equitable bar, and where one sues in trespass to try title and for possession and partition of land claimed under an executed deed, and not an executory contract, the defense of stale demand is not applicable.</p> <p>4. Limitation.— In the absence of evidence showing payment of taxes, the defense of limitation of five years cannot be considered,</p> <p>o. Coloe of title.—Mere naked possession of land for three years, united to a subsequently acquired chain of title, will not constitute title or color of title within the meaning of the statute of limitations. 26 Tex., 731; 27 Tex., 249.</p> <p>6. Ten teaks’ limitation.— Where the defendant relies on ten years’ possession he must show privity between .himself and those whose possession he claims, as part of his title, under the statute. 46 Tex., 222. '</p>

<p>Appeal from Lamar. Tried below before the Hon. R. R Gaines.</p> <p>The opinion states the facts.</p>

Tried below before the Hon. A. J. Booty. This was an action brought by the appellee against Thomas J. Clements, one of the appellants, on a promissory note payable to himself, which recited that it was given for the purchase money of land described therein, admitting certain payments, and praying judgment for the balance unpaid and a decree for the sale of the land.

Ebrób from Busk. Tried below before the Hon. A. J. Booty. Plaintiffs in error, and one John Bell Gibson, a minor, brought suit against A. C. Heal, in the ordinary form of an action of trespass to try title, in the district court of Busk county, November 18, 1875, for a tract of twenty-five acres of land adjoining the town of Henderson.

Tried below before the Hon. A. J. Booty. The appellants brought suit against the appellee J. D. Higgs for the recovery of a tract of four hundred acres of land, and for the rents and use and occupation of the same, alleged in an amended petition to be $1;000.

Tried below before the Hon. A. J. Booty. December 27, 1873, S. J. McAfee, and W. D. Wheelis purchased of the International Railroad Company, lot Ho. 6, in block Ho. 121, in Overton, Rusk county, Texas. The deed recited the “ consideration of $200 paid ” by the vendees. The deed was filed for record March 19,1874.

Tried below before the Hon. A. J. Booty. ' On the 14th of March, 1874, Attaway brought suit against Carter (trespass to try title) for the recovery qf a tract of one hundred and fifty-nine acres of land in Busk county. At the May term thereafter Garrison made himself party defendant as Carter’s landlord. Defendants filed a general denial, pleaded “ not guilty,” alleged title to the land, and that they had been in possession more than three years.

<p>Appeal from Collin. Tried below before the Hon. W. H. Andrews. The ‘Tacts are stated in the opinion.</p>

Tried below before the Hon. Joseph Bledsoe. ’ This action was instituted in the district court of Collin county, by the appellant, against Francis E. McKinney and-Charles W. McKinney, filed 8th February, 1877, alleging in substance that James McKinney, the husband of Francis E. and the father of Charles W., on the 1st of January, 1874, made and delivered to plaintiff his promissory note for $590, due one day after date, with interest at twelve per cent, per annum.

<p>Appeal from Grayson. Tried below before the Hon. J. M. Lindsay.</p> <p>The facts appear in the opinion of the court.</p>

Error from Lamar. Tried below before the Hon. R. R. Gaines. This suit was brought at the fall term, 1876, of the district court of Lamar county by J. E. Roberts, cashier of the Paris Exchange Bank, against J. H. Owsley, individually, and also as executor of Ann J. Owsley, deceased, and S. B. Maxey, upon a promissory note alleged to have been executed by J. H. Owsley, one E. K. Owsley (who is not sued), S. B. Maxey, and Ann J. Owsley, deceased.

Error from Ellis. Tried below before the Hon. Hat. M. Burford. This suit was instituted by Smith against C. Pannill upon a promissory note made by Pannill to Smith for §1,328 gold, payablé on demand, with interest at one and one-half per cent, a month until paid. It is dated June 18, 1875. Smith alleges the note was given in part payment of the purchase money of a tract of land, upon which he avers he has a lien, which he prays may be enforced.

Tried below before the Hon. E. E. Gaines. September 16, 1875, Myers brought suit in the district court of Grayson county against McShan for the possession of íiftyr acres of land. The petition alleged a lease January 4, 1874, by Myers to McShan, in writing, for one year, the. lease béing made an exhibit, at $250 per year, one-half paid cash and remainder payable at close of year, McShan to make necessary improvements, to be deducted from the rent.

<p>Appeal from. Fannin. Tried below before the Hon. Jno. 0. Easton.</p> <p>A statement of the case will be found in the opinion.</p>

Tried below before the Hon. E. E. Gaines. January 8, 1875, in justice precinct Ho. 1, in Lamar county (having jurisdiction), Allison & Moore brought suit against H. II. Dahoney and P. M. Spears, who was a constable, and his sureties, Jas. O. Walker and P. M. Price. The defendants recovered judgment, August, 1875, in the justice’s court. The case was appealed to the district court, and there filed October 20, 1875.

Tried below before the Hon. Geo. ÜST. Aldridge. May 4, 1878, Geo. W. Adams brought suit in the district ■court of Ellis county for his one-seventh interest in a tract of one-third of a league of land, patented in the name of his grandfather, B. F. Adams. Plaintiff was joined by his mother and her husband, claiming a life estate in one-third interest of the land sued for.

Error from Lamar. Tried below before the Hon. John C. Easton. March 20, 1869, Caroline Coles with her husband Wm. H., Ann, Elizabeth and Allen Ward, and Mary Brown with her husband Peter, as heirs at law of Commodore D. Ward, deceased, brought suit in the district court of Lamar county against A. J. Ward and his sureties, Sam’l H. Williams and Seth Ward, upon the administration bond of A. J. Ward, executed as administrator of the estate of C. D. Ward, deceased.

Tried below before the Hon. A. J. Carroll. This was an action of trespass to try title brought by the appellant for a tract of one hundred and sixty acres of land patented to him as the assignee of A. G-. Harris, granted by virtue of the pre-emption laws in right of the pre-emption claim and occupancy thereof by Harris; said Hams being a married man, entitled to the benefits of the pre-emption laws.

Tried below before the Hon. Hat. M. Burford. McCartney sued Martin in the district court of Ellis county, in December, 1875, upon a note dated 15th January, 1875, for §150.14, payable to him and executed by Martin. He alleges that it was given for part of the purchase money of a tract of land sold by him to Martin, and as a renewal of a former note for the purchase money of the same land, ' dated 28th July, 1871, which Martin had executed to him.

<p>1. Reconvention—Damages.— In a suit to foreclose the vendor’s lien by one holding purcliase money notes for a steam mill, and the land on which it is situated, damages to the property occasioned by the bursting of the mill boiler, caused by the plaintiff muddying the water supplying the mill, by maliciously building hog pens on his own land adjoining the mill, and keeping hogs on the stream supplying the mill with water, cannot be pleaded by the defendant in reconvention, even though the plaintiff be alleged to be insolvent, and unable to respond in damages for his wrongful or malicious acts.</p> <p>2. Failure of consideration.—The defendant cannot plead failure of consideration in suit for purchase money, on account of damage to the property occasioned by the malicious acts of the plaintiff committed after the sale; and such is the case where the plaintiff is insolvent.</p>

<p>1. Pleading — Failure of consideration.—A plea of failure of consideration in a suit to foreclose the vendor’s lien on notes given for land, which alleges that defendant had been evicted from the land and repudiated the title “ on the ground that the land conveyed to him in consideration therefor was not conveyed by good and sufficient title, and he has thereby lost the same and been evicted,” without allegations as to the invalidity of the title or offer to surrender his deed, or make the adverse claimant a party to the suit, is insufficient. 28 Tex., 272; 19 Tex., 260; 10 Tex., 65; 29 Tex., 267; ‘ 20 Tex., 211.</p> <p>2. Parties.— The wife is a proper party to a suit on a note given by the husband and wife for the purchase money of property, and to the decree foreclosing the vendor’s lien thereon; but it is error to render judgment against her for the debt or costs, when there was nothing to create a liability on her separate estate.</p> <p>3. Presumption — Community property.— The presumption is that all property in the name or apparent possession and ownership of either husband or wife is community property, and the holder of a note payable to a married woman, transferred by the husband in due course of trade, without notice that it was in fact the wife’s separate property, takes a perfect title thereto.</p> <p>4. Same.— Property in the name or possession of either husband or wife is prima facie community property, and third persons, in ignorance of the separate interest of the wife in it, will be protected in acting upon that presumption., 2G Tex., 320; 15 Tex., 283; 7 Tex., 9.</p> <p>5. Same.— The purchaser from the husband of land, the deed to which is made to the wife, is not thereby put upon inquiry as to any equity she might have in respect to it, but is protected if he buys in ignorance of her claim to it as separate property. 49 Tex., 213; 27 Tex., 457.</p> <p>6. Promissory note — Presumption as to indorsement.— In the absence of proof to the contrary, the indorsement of a note, in presumption of law, is contemporaneous with the making of it, and the defendant must prove that it was indorsed after it was due, if he would set up defenses which he might make against the payee. 14 Tex., 355.</p>

Error from Ellis. Tried below before the Hon. H. Barksdale. This suit was instituted on 24th August, 1874, in the district court of Ellis county, by Carr Forrest, plaintiff, against J. E. Hawkins and Mary, his wife, Hellie Cobb, a minor daughter of Wade H. Cobb and Eleanor Cobb, Wade II. and Oliver Couch, minors and grandchildren of Wade H. Cobb and Eleanor Cobb, defendants. The petition alleges that on the 12th May,. 1854, E. H. Tarrant made his will, bequeathing to W. II.

Tried below before the Hon. J. M. Lindsay. January 17,1874, Dugan brought' suit in the district court of Grayson county against H. A, Parrish (administrator of the estate of J. D. Fenet) and G. M. Etter and J. D. Fenet, upon a promissory note of date July 30, 1872, payable to the order of plaintiff thirty days after date, made by the deceased, J. ¡N. Fenet, and the defendants Etter & Fenet, for $1,691.28 gold, for value received, with interest at two and one-half per cent,…

Tried below before the Hon. E. E. (5-aines. This was an action brought in the district court of Collin county by A. (r. & J. E. Cummins, against defendants, J. F. Denton et al., to recover fifty-four acres of land in Collin county out of a survey of two-thirds of a league and labor, the head right of William Davis.

Tried, below before the Hon. D. M. Prendergast. L. B. Ingle tiled his petition in the district court of Limestone county on the 26th day of December, 1874, against C. H. Dean.

<p>Appeal from Lamar. Tried below before the Hon. John 0. Easton.</p> <p>This suit was instituted by the T. & P. R. R. Co., in the district court of Lamar, against! appellant, in accordance with the provisions of article 4922, to revise the decision of commissioners who had assessed the damages on the condemnation of the appellant’s land, for the construction over it of appellee’s railway.</p> <p>The petition alleges that the land condemned embraced fourteen and seven thousand one hundred and twenty-nine twenty-one thousand seven hundred and eightieths acres; that the sum of $350 was a fall and fair compensation for it, and that they tendered that amount to appellant, but he refused to accept it; that thereupon they filed in the district court of Lamar county their application for the appointment of commissioners; that commissioners were appointed, who assessed the damages of the appellant at $1,100, which appellee alleged was exorbitant, excessive, unjust, and four or five times as much as the just sum. The prayer is that the facts of the case be inquired into, and such judgment rendered as will be just, and for general relief. The company also filed the bond required under article 4992, to abide the decision of the case.</p> <p>To this petition McDonald demurred.</p> <p>He filed also the general issue, and pleaded specially:</p> <p>1. That the award made by the commissioners was not</p> <p>the true amount of damages due him, but as a compromise with a view to quiet controversy. ®</p> <p>2. That the company have illegally appropriated his land, entering at the northeast corner of his farm, running their line diagonally across it, cutting his farm into triangles, rendering it almost valueless as a farm.</p> <p>3. That it has dug through the whole length of it a deep cut and ravine, and thrown out on each side a large embankment of rocks and clay subsoil, which they have scattered and spread over his farm for a great distance on each side. And, in consequence, that the actual damage done to the lands of the defendant by reason of the running of the line as aforesaid through it was $2,000.</p> <p>5. That he has been vexed, harassed and annoyed in body and in mind by reason of the tortious acts of plaintiff in wrongfully entering upon his land, injuring his farm and overthrowing his plans, to his damage $2,000.</p> <p>6. That he has been annoyed, harassed and vexed and kept from his business by this suit, and forced to employ counsel and pay witnesses, etc., to his damage the further sum of $1,000.</p> <p>He pleads these several sums of money in reconvention and prays judgment for his damages.</p> <p>The plaintiff filed an amended petition denying the allegations of defendant’s answer, and allegingthat the defendant’s land has been greatly enhanced in value by the construction of the road, to the amount of $2,000, which they plead in offset to the defendant’s claim for damages beyond the actual value of the land appropriated.</p> <p>To this amendment defendant excepted on the ground that it attempts to set up advantages by construction of said road against damages sustained by defendant.</p> <p>The demurrers and special exceptions filed by the defendant were overruled, for the reason, as stated in the bill of exceptions, “that where the defendant claims special damages to his land not taken by the road, then the benefits accruing, if any, may be set off against the damages so claimed.”</p> <p>The case was submitted to a jury, who returned a verdict for the defendant for the land condemned, $200, and for damages $150; and judgment was rendered condemning the right of way over the land (four and one thousand and fifty-four one thousand and eighty-fourths acres in the field of defendant, in all fourteen and seven thousand one hundred and twenty-four twenty-one thousand seven hundred and eightieths acres), and for McDonald for $350, and against him for costs, it appearing that the amount had been tendered him.</p> <p>The defendant moved for a new trial and in arrest of judgment, which being overruled he appealed.</p>

Tried below before the Hon. Zimra Hunt. J. C. Fort, for himself and as next friend of his minor son, sued out an injunction to restrain the appellants from selling certain property levied on by the sheriff of Ellis county to satisfy an execution issued from the district court of that county on a judgment rendered against Fort and one Smith for $524.45.

Tried below before the Hon. John C. Easton. December 21, 1871, Miller brought suit in the district court of Fannin county for specific performance, and to remove clouds from his title to a tract of land; against Whit-sett, E. H. Smith and her husband, J. L. Smith.

<p>1. Attachment — Affidavit.—An affidavit for attachment, in form as follows:</p> <p>“R. B. Whitemobe & Co. > In the District Court of Collin No. 1436-J. v. t County, in ' the State of J. W. Wilson. ) Texas.</p> <p>“ C. H. White, agent for R. B. Whitemore & Co. in the above entitled cause, being duly sworn, says: that the defendant J. W. Wilson is justly indebted to the plaintiffs in the sum of ($685.66) six hundred and twenty-five dollars and sixty-six cents, and this affiant states that said defendant is about to remove his property beyond the limits of the county in which this suit has been commenced and that thereby the plaintiffs will probably lose their debt; and he further says that the writ of attachment is not sued out for the purpose of injuring the defendant,” sufficiently describes the county “in which suit has been commenced.” 5 Tex., 388; 15 Tex., 568; 85 Tex., 343; 31 Tex., 807.</p> <p>8. Same.—In an affidavit for attachment the facts required to be sworn to must be so direct and unequivocal as that if the oath is falsely and corruptly made, an indictment for perjury would lie.</p> <p>3. Same,— The requirements of the statute concerning affidavits for attachment are satisfied if a sufficient .affidavit is made, whether it is in the form of an affidavit made separate from the petition, or on the same paper as that which contains the petition, or whether no separate affidavit of the facts upon which the attachment is prayed for is made at all, but simply alleging and swearing to the necessary facts in the petition, with appropriate prayer for attachment. 46 Tex., 26; 13 Tex., 370; 16 Tex., 51; 14 Tex., 3; 15 Tex., 569; 18 Tex., 292; 24 Tex., 226.</p>

Tried below before the Hon. David D. Claiborne. October 8, 1874, Mayfield filed his suit in the district court of Karnes county against Francesca Musquez and others, alleged to be the heirs of Bamon Musquez, deceased, alleging that plaintiff owned, by “ a good legal, valid and equitable title,” certain- lands described in the petition; that the defendants “ set up some kind of pretended claim to said land, and claim that they have some kind of a vendor’s or other equitable…

• Error from Menard. Trial below before the Hon. W. A. Blackburn. This suit was instituted by Mann against Bradford for recovery of damages alleged to have been sustained by him by reason of the wilful misrepresentations of Bradford in relation to a,stock of cattle sold to Mann by Bradford. The damages are laid at $1,896.

Tried beloiv before the lion. I. B. McFarland. E. A. Franklin, the appellant, brought suit July 8, 1873, against L. Smith and R. A. Harvin, on their joint note for $1,000, payable one day after date to the order of the plaintiff, with ten per. cent, interest from 1st September, 1872, dated June 26th of same year.

Tried below before the Hon. L. W. Moore. March 15, 1879, Isabella Spruill brought suit against her ¡husband, Luke Spruill, for a divorce, alleging acts and conduct which are termed outrages, rendering their living together as husband and wife insupportable.

<p>Appeal from Dallas. Tried below before the Hon. Z. Hunt.</p> <p>The opinion states the case.</p>

Tried before the Hon. Geo. H. Aldridge. In 1867 Eliza Ranney and her husband filed their suit in the district court of Ellis county for title to certain lands, against Geo. M. Hogan, 1ST. B. Anderson and others.

Tried below before the Hon. J. P. ¡Richardson. McDannell & Co. sued appellant by attachment November 11, 1874, in the district court of Travis county, on an account for liquors sold and delivered (much the greater part September 15 and 16, 1874) by McDannell & Co. to Miller. Miller pleaded in abatement that he did not reside in Travis county. Plaintiffs, by amendment, alleged a promise to pay in Travis county.

Tried below before the Hon. F. P. Wood. This suit was instituted by appellants against appellee as administrator of J. M. Lindley, deceased, upon a promissory note for $1,000, made by Lindley in favor of appellant, Amelia E. Solomon. Defendant answered, pleading the general denial and a want of consideration, and a failure of consideration.

<p>1. Charge of the court.—It is error to charge the jury even hypothetically upon a state of case the evidence did not present, and which might induce them to conclude they were at liberty to find according to the assumed hypothesis. Where the court, in its instructions to the jury, submits issues upon which there has been no evidence, and it is not clear that the jury have not been misled, the judgment must be reversed. Austin v. Talk, 30 Tex., 167; ' Yarborough v. Tate, 14 Tex., 483; Earle v. Thomas, id., 583.</p> <p>3. Homestead — Abandonment — Charge of the court.—In a suit involving the homestead and the question of its abandonment, an instruction to the jury that, “if it was the fixed intention of Ritz to abandon his homestead at the date of the levy of the attachment, it would not be necessary to prove that such was the intention of his wife also, to entitle the plaintiff to recover,” was erroneous. Gouhenant v. Cockrell, 30 Tex., 97; Woolfolk v. Ricketts, 48 Tex., 37; Cross v. Everts, 38 Tex., 533.</p> <p>3. Charge of the court — Abandonment of homestead.— On the question of abandonment of the homestead, refusal of the court to instruct the jury, when asked, that “though Ritz and wife left the premises with the intention of abandonment, if they could sell, that that would not necessarily constitute an abandonment which would forfeit their right of exemption. It must be undeniably clear, and beyond all reasonable ground of dispute, that there has been a total abandonment with intention not to return and claim the exemption, in order to render the property liable for bis debts,” was error. Shepherd v. Cassiday, 30 Tex., 39.</p> <p>4. Homestead — Fact case.— See this case for evidence held insufficient to prove abandonment of the homestead.</p>

<p>1. Judgment bt default — Teem of court changed.— Wheré a defendant was served on the 24th of June, 1876, with citation to appear at a term'of the district court of San Saba county to be held on the fourth Monday after the first Monday in September, 1876, and on the 29th day of July, 1876, the time of holding court in that county was changed, by act of the legislature, to the second Monday in Sepl ember, 1876, to render judgment against him by default September 11, 1876, at a term of court held under the law as changed, was erroneous. Gen. Laws 15th Leg., ch. 67, page 73; Pas. Dig,, art. 1513; id., 1413; Neill v. Brown, 11 Tex., 17.</p>

<p>Appeal from Navarro. Tried below before the Hon. D. M. Prendergast.</p> <p>The opinion states the case.</p>

Error from Washington. Tried below before the Hon. I. B. McFarland. May 12, 1873, Lee brought suit on a promissory note executed by defendants for $800, September 26, 1872, and due six months thereafter.

<p>Appeal from Parker. Tried below before the Hon. A. J. Hood.</p> <p>September 11, 1874, Kirbie sued W. H. Graves in trespass to try title for several improved town lots in the town of Weatherford. The petition set' out that plaintiff had obtained a judgment February 6, 1874, in the district court of Parker county against A. S. Fain; that the minutes book of the court had been destroyed by fire; and that June 5, 1874, at a regular term of the court, the judgment had been regularly substituted; that execution had issued thereon July 9th, thereafter, and sale by the sheriff under the judgment and execution, August 4, 1874, and purchase of said lots and deed therefor by the sheriff to plaintiff; and that said lots were the property of Fain and subject to execution. Value of rents alleged; prayer for possession, damages and costs. -</p> <p>P. J. Willis & Bro., at their own instance, became defendants as the landlords of Graves, and conducted the suit.</p> <p>They pleaded not guilty; specially a defense (hereafter set out) setting up a parol agreement for an exchange of securities between Fain and the defendants, whereby they claimed to have a prior lien on the lots; and that the lots were the homestead of Fain and wife from 1867, and up to June 3, 1874, when they had conveyed the same by warranty deed to defendants. The defendants had Fain and wife made parties.</p> <p>The testimony was, on part of the plaintiff, the transcript of the judgment and execution as alleged, and the sheriff’s deed for the property; that defendants claimed through Fain, the judgment debtor; that Willis & Bro. had taken control of the lots about September 1, 1874, and had let the same to Graves, the original defendant; and¿ that the rent was worth $20 per month.</p> <p>The defendants, Willis & Bro., read their deed from Fain and wife of date 3d June, 1874. Fain, as witness, testified “ that he had lived from 1867 upon the property in controversy until the middle of October, 1873, at which time he-left and moved to the place where he now lives; that he had' built there a good house, and fully improved the place where he now lives before he moved, and prepared it for a home; . . . that October, 1873, he moved from the property in controversy to his present place of residence, carrying his family and everything he had; . . • . that he had expended $1,500 to $2,000 before moving. That the new place was much more valuable than the oldthat “ he went then to live on the place; that he ate, slept, kept his family at the new place; had his stock, provisions and everything there; . . . that when he moved from the place in controversy to the place where he now resides, he did so with the intention of making the new place his home if he could.”</p> <p>“ That before moving he had given Willis & Bro. a deed of trust on a large amount of property, including the place he moved to and where he still resides. That he, when he moved, intended, if he could, to free the place of that incumbrance and make it his home; and he then, also, intended, if he failed to pay off the deed of trust and hold the new place as a homestead, to hold as a homestead the house and lots in controversy in this suit. That since he moved he had paid off the deed of trust and freed the place where he now lives of the trust deed, and he now claimed the place as his homestead, but that he had also claimed the place in controversy after leaving it as his homestead, conditionally; that is, he was intending to come back to it if he lost the title and possession of the place where he moved to and still lives.” . . . That he owned both the place in controversy and the place on which he now lives, when he moved in October, 1873, but before that time he had given Willis & Bro. a deed of trust on the place; that he had also given E. A. Hutchison a deed of trust on the place in controversy to secure about $1,000; that his (witness’s) wife did not sign said deed of trust on the property in controversy; . . . that Willis & Bro. had a deed of trust upon the property on which witness now lives, at the time he moved upon the same; that he and his wife deeded the premises in controversy to Willis & Bro. in June, 1874, and raised the first deed of trust upon the new residence, and the same day gave another upon it to secure $1,250, etc. There were no acts or declarations of Fain’s wife in evidence.'</p> <p>The deed from Fain and wife, duly authenticated,' was read, conveying the lots in controversy to Willis & Bro. June 4, 1874.</p> <p>In rebuttal it was shown that Fain, when building and before moving to the new residence, spoke of making it his home, etc.; that the place was outside the town limits, etc.</p> <p>The court charged the jury with unusual care on the subject of homestead rights. That part specially objected to appears in the opinion of the court. The defendants asked charges, among other things, as to abandonment, the rule in Gouhenant v. Cockerell and Shepperd v. Cassiday.</p> <p>The jury found for plaintiff and §100 rent; also as against Fain as warrantor in favor of Willis & Bro.</p> <p>Judgment was rendered upon the verdict. A motion for new trial having been overruled, the defendants, Willis & Bro., appealed.</p> <p>Errors assigned were:</p> <p>1. Sustaining plaintiff’s exceptions to special answer of defendants, filed October 9, 1874.</p> <p>2. Sustaining objections to deed of trust from Fain and wife to Willis & Bro., of date May 10, 1873.</p> <p>3. Excluding the two deeds from Fain to defendants for " the store and for the one hundred and sixty acres, offered by defendants.</p> <p>4. In excluding all evidence in régard to the lien on the property occupied at time of the trial by Fain and wife.</p> <p>5. Refusing the instructions asked by defendants.</p> <p>6. In instructions given by the court, and especially seventh, eighth and ninth (“in which the rule of law in regard to the acquisition and abandonment of homestead is reversed and the burden of proof thrown on the opposite party”).</p> <p>7. The jury found contrary to the law and evidence.</p> <p>8. In giving judgment for §100 rents against defendants when not asked.</p> <p>9. The instructions given did not comprise the law as applicable to the facts and evidence of this cause.</p> <p>10. The overruling the motion of Willis & Bro. for a new trial.</p>

Tried below before the Hon.' J. M. Lindsay. June 30, 1874, Perry brought an action of trespass to try title against Y. S. Coleman, D. L. Coleman and H. A. Coleman for a tract of one hundred and sixty-one and one-half acres of land described in the petition, and alleged to have been patented to plaintiff March 26, 1874, under a file made August 25, 1873.

<p>Appeal from Lamar. Tried below before the Hon. John C. Easton.</p> <p>The opinion states the facts.</p>

Ebbob from Comal. Tried below before the Hon. Q-. H. Moon an .

<p>Appeal from Washington. Tried below before the Hon. E. B. Turner.</p> <p>The transcript sets out with what purports to be an “ agreed case,” the introduction to which reads as follows:</p> <p>“Heirs of Annie Fisher, deceased, v. E. Leisweitz and others.</p> <p>“It is agreed that the case shall be submitted to the court, waiving a jury, upon the following agreed statement of facts, and that judgment.shall be rendered for the plaintiffs, or defendants, according as the law, arising upon the said facts, may be for the one or the other. (It is understood that the issues between the defendants and their warrantors are to stand over for trial at some future time, should there be a necessity therefor.) ”</p> <p>This agreement is signed by counsel, and filed January 8, 1879. Judgment was' rendered on the same day. Appended to the agreed case in the transcript is the following certificate, which does not appear to have been filed:</p> <p>“ Austin, February 28, 1879.</p> <p>“ I do hereby certify that at the January term of the district court for the county of Washington, ,A. D. 1879, this cause, Ho.- 5277, was submitted to me upon the facts agreed upon as set forth in the foregoing statement, and that upon those facts, and those alone, I determined the case and rendered judgment for the defendants. I think I bad the foregoing statement in hand, but do not remember to have been asked to sign and approve the same as the statement of facts, as I should most cheerfully have done so. The court has now adjourned, and if the authority still resides in me to do so, I desire that this signing shall be in all things regarded as now for then, viz.: January 8, 1879. The facts were agreed upon and signed by counsel during the term. In testimony whereof, I hereunto set my official signature, the day and date first above written, to this certificate.</p> <p>“E. B. Turner,</p> <p>“ Judge 16th District Texas.”</p> <p>In addition to the foregoing, the transcript contains a copy of the judgment, an assignment of errors, and an affidavit of inability to give an appeal bond.</p> <p>The judgment in the district court recites “that the parties, by consent, waived a jury, and the cause was submitted to the court upon an agreed statement of facts.”</p>

Tried beloxv before the Hon-. F. P. Wood. Ann Bureham, joined by her husband, brought suit, in form of trespass to try title, to recover of the appellee a certain tract' of land described in their petition, on September 4, 1874.

Tried below before the Hon. Jeff. Word, Jr., Special Judge. April 19, 1872, Fisher brought suit against Bowser to enforce specific performance of a contract; the written memorandum of its terms is as follows: “Received of J. L. Fisher twenty dollars gold coin, in part pay for a tract of land (1J) acres in the town of Dallas, the same tract sold to O. P. Bowser by Sarah IT. Moore. .Having this day sold the same to said J. L. Fisher for one thousand dollars gold coin.

Tried below before the Hon. Hat. M. Burford. This was an injunction proceeding instituted by the appellee to enjoin the appellant, as sheriff, from selling a certain tract of land under an execution in favor of L. S. Boss and others, which was issued and levied on said land to satisfy a -judgment in favor of the plaintiffs in execution, against one Thomas Wardlow.

<p>Error from Bobertson. Tried below before the Hon. John B. Bector.</p> <p>September 19,1871, Wm. Blackburn and others, plaintiffs, brought an action of trespass to try title against Alex. McDonald, and for partition against other defendants named in the petition and alleged to be joint tenants with .plaintiffs in certain lands. The lands were alleged to have been conveyed by a warranty deed, April 8, 1870, by B. C. Blackburn to said co-owners, described as “lying and being situated in the county of Robertson and state of Texas, it being a part of the headright of H. Reed and containing five hundred and forty acres.” Annexed to the petition as an exhibit was a copy of the deed, being “ deed of gift ” in consideration of her love and affection to the grantees, who are in the deed stated to be her children. The deed, closed with covenant of warranty.</p> <p>June 4, 1872, McDonald filed general demurrer and amended, pleading not guilty.</p> <p>June 11, 1873, plaintiffs amended, alleging that the grantees, five in number, were the only children of the grantor, and that by virtue of said deed the said vendees became and were, on 8th of April, 1870, seized and possessed in -fee-simple of said land, each as joint tenant of an undivided one-fifth interest in said land, which is fully described as follows: lying and being situated in Robertson county, state of Texas, a part of the headright of Henry Reed, deceased, consisting of two surveys described as follows (giving field-notes) ; the two tracts containing together but four hundred and fifty. acres; that the said grantor, subsequent to her deed to plaintiffs, had executed to defendant McDonald, who had full knowledge of the facts and of plaintiffs’ rights, a d'eed for three hundred and twenty acres of the land so conveyed to her children as aforesaid.</p> <p>Defendant, by amendment, excepted to the petition as amended, and particularly to the insufficiency of the deed alleged as the evidence of title by plaintiffs, as void for Uncertainty of description, etc. Matters in bar were also pleaded, not necessary to be stated.</p> <p>June 20, 1874, plaintiffs further amended, alleging “ that the land intended to be conveyed by said deed of 8th April was two tracts containing together four hundred and fifty acres conveyed by deed from P. H. Smith and wife to Wm. Blackburn (the deceased husband of the grantor), of date 22d June, 1855, and also described in a certain decree of title of the district court of Robertson county, at its fall term, 1866, “ which deed and decree is herewith filed in evidence to identify said land;” . . . “that the above described land was the only land owned by the said'Bethenia” (the grantor) at the time of the execution of the said deed of the 8th day of April, 1870, being a part of the H. Reed headright in Robertson county, and the land on which she resided at the time of the sale.”</p> <p>June 30, 1874, the demurrer and exceptions of defendant to the petition were sustained, and plaintiffs declining to amend, judgment final was rendered for the defendant; from which plaintiffs appealed by writ of error.</p> <p>The errors assigned are the sustaining the demurrer and exceptions of defendant, and rendering judgment for the defendant.</p>

Tried below before the Hon. F. P. Wood. This suit was instituted on 8th July, 1873, by Harriet E. Smith, surviving widow of John E. Smith, deceased, with her husband, David B. Smith, and Rena A. Smith and Anthony FT. Smith, minors, children of said John and Harriet, suing by their “prochein ami” David B. Smith, against D. H. Redden, for the recovery of a tract of land of four ten-acre lots in FTavarro county.

• Tried below before the Hon. A.' S. Broaddus. This suit was instituted by B. W. Dean against the widow and children, as sole heirs, of one Parnell, deceased, representing that he held a note made by Parnell to one Matthews for part of the purchase money of a tract of one hundred and fifty-six acres of land sold by Matthews to Parnell; that the said Parnell left no property but exempt property; that Matthews indorsed the note to him, and praying a foreclosure of the vendor’s…

Tried below before the Hon. John B. Rector. This suit was brought on the 11th of May, 1874, by B. A. Brown, against John A. Mitchell, on a note secured by a mortgage upon certain mules and other property described' in the petition.

<p>Appeal from Burleson. Tried below before the Hon. A. S. Broaddus. 0</p> <p>Appellees, as children and heirs of Amanda Grant, sued the administrators of W. F. & J. F. Grant, alleging that their mother was the wife of J. F. Grant. That she died October 25, 1855; that no administration was had on her estate. At her death, and for a long time before, W. F. & J. F. Grant were partners in farming and stock-raising under the firm name of W. F. & J. F. Grant. As such partners thejr owned and cultivated three hundred and afterward four hundred and sixty acres of land, and owned and used in jSuch cultivation five slaves, all acquired during 'the subsistence of the marriage between J. F. and Amanda; and appellees, in right of their mother, became the owners of one-half of J. F.’s interest, or one-fourth of such land and slaves, upon the death of their mother. That their mother had •three slaves, her separate property, which descended to appellees, subject to their father’s life estate to one-third in them. Appellees further allege that said firm cultivated said.land and appropriated the profits thereof, from the death of said Amanda, October 25, 1855, till the death of W. F. Grant, November, 1871, and likewise the hire of the slaves. And J. F. Grant, as surviving partner, did the same till his death, July 13, 1872. In exhibit to petition, the rent is charged to October 25, 1871, and hire of slaves to 25th of October, 18G5, with annual interest added to both at eight per cent., making the sum claimed §19,760. Appellees say their claim was presented to the representative of each estate February 12, 1873, and rejected by W. F.’s administrator, and not accepted by J. F.’s. The}7 sue April 12, 1873.</p> <p>There was no defense for the estate of J. F. Grant. Simpson, administrator of W. F. Grant, demurred generally to the petition, and specially excepted the statute of limitatiotis. The statute was also pleaded. To which -plea it- is replied that plaintiff W. F. Grant, Jr., was born April 1, 1848, and plaintiff Fannie Gregg February 14, 1850, and married in 1866; marriage still subsisting.</p> <p>Simpson also pleaded that J. F. Grant was a joint owner with appellees of the land and slaves, and lawfully in possession in that character, with the right to use and collect rents and hire as against W. F. Grant. That he placed the interest he so controlled as joint owner or coparcener, in the firm, against similar amounts so placed by W. F. Grant, and in that manner he was paid by W. F. Grant for both the rents and hire, as far as the same were a charge against W. F. So W. F., having once paid such charge to one entitled to collect it, is no more chargeable with it. And further, that all the property in which Amanda had a community interest was partnership property at the time of her death; had been purchased with funds of the firm for firm purposes. So whatever interest she took was subject to the rights of the firm. That the firm debts must be extinguished before Amanda or her children could have any rights in the assets of the firm. But the assets were insufficient to pay the firm liabilities, and appellees could take nothing. Simpson also pleaded that J. F. Grant was to the time of his death the head of a family, occupying the land in question as a homestead, having no other, and using it for the benefit of appellees, his minor children, and was not, therefore, answerable to- his children for the rents. He also pleaded amounts spent by the firm in education and maintenance of appellees. Value of improvements on land, of which appellees have their part in the partition of lands, and to all of which W. F. Grant contributed.</p> <p>The court, after stating the plaintiffs’ case as to the defenses, charged the general law of limitation of two years, and that in absence of testimony showing when letters of administration were gran ted, twelve months additional would be allowed, and if claim was presented within three years after March 30,1870, and rejected, and that suit thereon had been brought, the claim would not be barred.</p> <p>The constitutional provisions in constitution of 1869 were, given.</p> <p>■ As to defense of expenses of maintenance, etc., “ a father is bound to educate and support his minor children, and cannot tax the cost thereof against the proceeds of their property in his hands.”</p> <p>' “Where a parent or an uncle, or both, bestow an education or support upon children, or nephews and nieces, the law will not raise a presumption, as it would between strangers, that such expenses are to be reimbursed. And where -the children, or nephews and nieces, are minors, the law conclusively presumes that such expenses were a gratuity bestowed upon them, and will not permit a recovery therefor, nor permit it to be set off against a debt due the minors from such parent and uncle.”</p> <p>“ So that, even, if you should believe from the evidence that the plaintiffs were educated and supported while they were minors by their father and uncle, these last could not charge up the expense of such education and maintenance against them, nor set it off against any indebtedness on their part to the plaintiffs.”</p> <p>. . . “ That it was no defense to the estate of W. F. Grant against such claim that he considered or dealt with the property as if it belonged to J. F. Grant (father of plaintiffs). He was bound to account to the real owners for the rents and hire.”</p> <p>“ In reference to the. defense against rents, based on the ground of J. F. Grant’s alleged right to a homestead of two hundred acres, including improvements, you are instructed that under the pleadings and proof the defendant Simpson is not entitled to set up such defense.”</p> <p>. . . “ In reference to the claim for value of improvements put by the said W. F. and J. F. Grant upon the common lands of the plaintiffs and themselves, by which it is said that the lands subsequently decreed to plaintiffs were enhanced in value, you are instructed: (1) If such improvements were made with money or property, or its proceeds, in which the plaintiffs had an interest, and that their interest in such money and property, unaccounted for by the Grants and not sued for in this suit, equaled or exceeded the enhanced value of their share of the lands by reason of such improvements, then the defendants are not entitled to any deduction on that account. (2) A trustee is held to the strictest liability in his dealings with the parties for whom he holds, and the burden of proving all the facts on which his right depends, and of excluding every reasonable hypothesis to the contrary, is thrown upon him and those claiming under him.”</p> <p>(3) “ So that, if, under the rules already laid down, W. F. and J. F. Grant were trustees for the plaintiffs, the presumptions will be against them in their dealings with the trust property, and they, and those who represent them in this suit, are put to the burden of proving beyond any reasonable doubt that the property was improved with their own money, and that the plaintiffs had no interest in it; and, in the absence of such convincing proof, you will find, as to this issue, against the defendants.”</p> <p>The jury were allowed to find a parol purchase, during the life-time of their mother, of thirty acres of the land, rents of which were claimed, defendants having exhibited a deed therefor bearing date to the firm in 1859.</p> <p>There was a verdict against both the estate of J. F. Grant, father of plaintiffs, and against Simpson, administrator of the estate of W. F. Grant, uncle of plaintiffs, for $11,063.33 and costs. Judgment was rendered establishing the claim against both estates, to be paid by the administrator thereof in due course of administration.</p> <p>Motion for new trial was overruled, and Simpson appealed. The plaintiffs, by motion, asked that the claim be ranked as of sixth class, which being refused, they also appeal.</p> <p>The father of plaintiffs was married to their mother in 1846. From that time to the death of W. F. Grant, in 1871, W. F. and J. F. Grant were universal partners, engaged principally in planting and stock-raising. Neither of them owned anything outside the firm. Negroes' and land were all purchased and owned in common. Each partner put into the partnership the interest he controlled in the lands and slaves, and they shared the proceeds between them. Everything that either had, no matter how acquired or held, was transferred to the firm, and was always treated by them as the property, not of the individual members of the firm, but as the property of the firm. All lands and slaves owned by them were purchased with partnership funds, and held for partnership purposes in their firm name. The mother of plaintiffs died in 1855, the owner of three negroes, her separate property, and of a community interest in lands acquired by the Grants as before stated. After her death the negroes and lands were used in the firm as before. There were fifteen to twenty riegroes, a cotton and corn crop, twenty mules,- and some farming implements, when she died. Subsequent to her death, the Grants placed from $4,000 to $6,000 of improvements on the land, which remain there. Plaintiffs were reared and educated out of the means of the firm, at great expense. J. F. Grant, being the head of a family, made his home on the land in question, and had no other homestead. There was not sufficient assets to pay the liabilities of the firm.</p>

<p>1. CONFÉDEBATE BONDS — CONTBACT PAYABLE IN, MAY BE ENFOBCED.— A contract as follows: “$13,000. Due Peter Mullen or order twelve thousand dollars, bearing seven per cent, per annum interest until paid, in Confederate States seven per cent, bonds, which we or either of us do promise to pay to Peter Mullen, or order, on or before the 1st day of August next, with seven per cent, interest from date, it being for his stock of cattle which we have purchased . from him this day in the following marks and brands ” (describing the cattle). “ In testimony whereof,” etc. Signed and dated June 17,1863; being between parties who resided within the Confederate States, made on a sale of property in the usual course of business, and not for the purpose of giving currency to the bonds or otherwise aiding the rebellion, is not illegal and may be enforced, Thorington v. Smith, 8 Wall., 1; Hanauer v, Woodruff,'15 Wall., 439; Lumpkin v. Smith, 46 Tex., 53.</p>

<p>1. Homestead — Tenant in common.—The head of a family residing on a tract of fifty acres of land, situated a mile distant from another tract of two hundred and forty-six acres, which also belongs to him, a part of which is in cultivation, may claim as homestead the land on which he resides, and as much of the other as will make up the two hundred acres exempted by law. That the two hundred and forty-six acre survey is held as tenant in common does not prevent the homestead from being established upon it, subject, however, to the rights of the co-tenant. Clements v. Lacy, 51 Tex., 150.</p>

<p>Appeal from Navarro. Tried below before the Hon. D. M. Prendergast.</p> <p>The facts are stated in the opinion.</p>

Tried below before the Hon. L. W. Moore. This suit was instituted on the 7th day of August, 1875, in the district court of Caldwell county, by John V- H. Cliett, Betsy E. Harralson, joined by her husband, Eliza M. Mosely, joined by her husband, and Thomas A. J. Cliett, all of whom were alleged to reside in the state of Alabama, except Thomas A. J. Cliett, who was alleged to reside in the state of Mississippi, against Edilda H- Cliett, since deceased, but represented in this…

<p>1. Payment — Railroad “time checks.”— Whatever is received by the creditor in satisfaction of his debt will be effectual as a payment, as between the creditor and his debtor. Receiving “time checks ” of a railroad, in satisfaction of a note, by a creditor of his debtor, is a payment. 2 Greenl. Ev., sec. 516; id., 520; 2 Dan’l on Neg. Inst., sec. 1222; id,, 1623; Blair &Hoge v. Wilson, 28 Gratt., 165; Boulware v. Robinson, 8 Tex., 330; Ables v. Lee, 6 Tex., 434; McNeil v. McCamley, 6 Tex., 165; Robson v. Watts, 11 Tex., 768; Cartwright v. Jones, 13 Tex., 4; Wells v. Fairbanks, 5 Tex., 582; Jennings v. Case, 17 Tex., 673; Morphy v. Garrett, 48 Tex., 249; Life Ins. Co. v. Ray, 50 Tex., 518.</p> <p>2. Notice — Non-negotiable instrument.—It is the duty of the assignee of a non-negotiable instrument to promptly notify the maker of such transfer, and the maker will be protected if he pays the payee without notice of assignment, the absence of the note being reasonably accounted for. Daniels on Neg. Inst., sec. 742.</p> <p>3. Estoppel—Promissory note — Deed of trust — Sale under.— Equivocal transactions by the holders of a note, not known to the maker, will not constitute as to him an estoppel. The assignment of a non-negotiable instrument, after maturity, passes no right against any defense the maker could have against the original payee. The right to order a sale of property under a deed of trust given to secure such an instrument depends upon the existence of an indebtedness. The debt satisfied, the power ceases, and a purchaser at such sale does not acquire any title to the property so sold, notwithstanding the provision of the deed of trust, that “ the recitals in the conveyance made to the purchaser shall be full evidence of the matters therein contained, and no other proof shall be of Inquest by the holder of said indebtedness to the trustee to enforce this trust, or of the advertisement or sale of any particulars thereof, and prerequisites of sale shall be presumed to have been performed, and the sale under the powers herein granted shall be a perpetual bar against the maker of this trust deed and his heirs and assigns.”</p>

<p>1. Payment— Confederate money.—Payment to an agent in Confederate money, where it was being used and passed in business transactions as money, was a valid payment, and an agent to collect could receive such notes in payment unless forbidden by his prin-' cipal,</p> <p>2. Principal and agent — Payment,—Payment of a note to an agent in notes of other persons is not binding on the principal in the absence of proof of ratification by him.</p> <p>3. Acquiescence.— Silence of the principal from 1861 to 1868, owing to the war and the disturbed state of the country afterwards, he being in a distant state, cannot be regarded as acquiescence in the acts of the agent performed during the war, where the principal repudiates such acts as soon as informed of them. 1</p> <p>4. Practice — Parties.—The wife is a proper party to a suit to foreclose the vendor’s lien on a note, given by her husband for land deeded to her, and may properly be included in the decree of foreclosure, but it is error to render judgment against her for the debt, or for costs.</p> <p>u. Exception to charge of the court.— An exception to the charge of the court which does not state the point of objection will not be noticed on appeal where no counter charge is asked on the subject, or the ground of objection indicated in the assignment of errors.</p>

<p>1. Insurance—Application no part of policy.— Where there are no words of reference to the application in the policy it forms no part thereof. If the insurer desires to make it so, he must refer to it, and cannot claim that it is by implication to be treated as a part of the policy. 7 Lans. (N. Y.), 452.</p> <p>2. Same — Untrue statement in application.—An.untrue or fraudulent statement on the part of the assured, in his application for the policy of insurance, of a fact material to the risk, does not avoid the policy when either the company or its agent was informed of, and knew the real facts, at the time when the contract was made and the premium paid. Wood on Fire Ins., 277.</p> <p>3. Same — Representations as to ownership of the property insured.— The surviving husband, having possession of the community property of himself and deceased wife, with the right of disposition of it for the payment of his own debts, and in the settlement of his business, has an insurable interest therein, and representing himself the owner of it, in taking out a policy-of insurance thereon, was not such a misrepresentation of ownership as would vitiate the policy. Jones v. Jones, 15 Tex., 148; Flanders on Insurance, 281; Wood on Ins., 297, 414.</p> <p>4. Same —Expert testimony—Increased risk.— The question of increased risk, in a suit on a policy of fire insurance, is one for the jury, and experts are not permitted to state their c.onclusions upon the issue whether the risk was increased, when that depends upon facts which involve no peculiar science or information, but are within the common knowledge of men. Lyman v. The State Mutual Ins. Co., 14 Allen (Mass.), 329.</p> <p>5. Increased risk — Charge oe the court—Waiver.—Where there is a proviso, that, if the risk is increased, the policy is void, it is error for the court to instruct the jury that “if the defendant, by its agents, acting within the scope of their authority, had actual knowledge, notice or reasonable information of the plaintiff having permitted the erection of the ten-pin alley in proximity to the store, and if with such knowledge and information they made no objection thereto, but continued knowingly to earn and receive tlie premium as if the policy were still in full force, or by the conduct of its agents, acting within the scope of their authority, the defendant induced the plaintiff to believe that the said erection of the ten-pin alloy did not, in their view, materially increase the risk or avoid the policy, then the defendant would be estopped and precluded from setting up the avoidance of the policy by reason thereof.” If building the ten-pin alley increased the risk it rendered the policy void, and mere silence on the part of the company, failure to give notice, make objection or return any part of the premium will not constitute a waiver of the forfeiture occasioned by the increased risk. Texas Banking and Insurance Co. v. Hutchins, 53 Tex., 61; Banking Co. v. Stone, 49 Tex., 13; Insurance Co. v. Lacroix, 45 Tex., 170; N. Y. Central Ins. Co. v. Watson, 23 Mich, 486; Hoyet v. Gilman, 8 Mass., 339; Hendricks v. Commercial Ins. Co., 8 Johns., 1; Waters v. Allen, 5 Hill, 424; 99 Mass., 160.</p> <p>6. Proof of loss — Waiver.— Where defective proofs have been made, a refusal to pay on special grounds, or a denial of liability, unless predicated upon the defects in the preliminary proofs, is a waiver of all defects therein, and estops the insurer from insisting upon them to defeat his liability. Wood on Ins., 718.</p>

<p>1. Peters’ colony, land granted in—Separate property of the husband.— Land acquired by a surviving husband under an act of the legislature granting land to settlers in Peters’ colony, passed after • the death of the wife, is the separate property of the husband, and the children of the deceased wife have no interest in it, the wife'having died before she or they possessed either a title to the land or any rightful legal or equitable claim against the state for it.</p>

<p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The opinion states the case.</p>

<p>Appeal from Travis. Tried below before the Hon. E.- B. Turner. ■</p> <p>This suit was brought in the district court of Travi§ county, December 14, 1874, by the children and heirs of Mary Marianna, against Coney, the' appellant, to recover an interest in the lots 1, 2, 3 and 4, in block 25, in Austin City. They claim four-fifths of the property on the ground that Carlo and Mary had purchased the property together, at the price of $2,500, of which $1,500 cash was advanced by Mary, and that it was agreed between them that the re^ Draining $1,000 should be made and paid by their joint labor. The deed was taken in the name of Coney, and the $1,000 paid, as is alleged by plaintiffs, by their joint labor.</p> <p>. Coney answered, denying the trust; averred a loan of money to him by Mary, which he had repaid, and pleaded also limitations.</p> <p>There was a verdict for the plaintiffs for four-fifths of the property, and judgment accordingly. The defendant moved, for a new trial, which being overruled, he appealed.</p> <p>. The defendant has assigned for error b 1. That the court erred in refusing the charges asked by him, numbered 1, 2, 3, 4, 5 and 13.</p> <p>. 2. That the court erred in charging, in effect, “that a trust could be established by evidence of a parol agreement subsequent to. the deed, but prior to the date funds were contributed under such agreement, to pay the balance of the purchase money.” , ...</p> <p>3. In overruling the motion for a new trial.</p> <p>4. The evidence failed to show a trust in the land in favor of appellees’ mother.</p>

<p>1. Streets — Limitation.— Adverse continuous possession of a street in a city or town for ten years will confer title by limitation.</p> <p>3. Deed — Five years’ limitation as to streets.— A deed to a lot in a city or town only conveys the land to the line of the street, and the statute of limitation of five years does not apply where the owner takes and holds adverse possession of a portion of the street adjoining.</p> <p>8. Rescinding sale of land—Streets.— The purchaser of a brick business house and the lot on which it is situated, and who is in no way at fault in the matter, may have the sale rescinded on discovering a valuable portion of the improvements tobe in the street, the possession of the street not having continued long enough to confer title by limitation.</p>

<p>1. Certificate of authentication.—A certificate in the following form is a substantial compliance with.the statute:</p> <p>“The State of Texas, Robertson County.</p> <p>“ Personally came and appeared before me, Samuel B. Killough, chief justice, ex officio notary public said county, John J. Loftin, known to me,, and, after being duly sworn, saith on oath that Josiah Taylor signed, sealed and delivered the foregoing deed for the purposes therein expressed, and that he signed the above and foregoing deed from Josiah Taylor to Wm. B. Loftin as a subscribing witness at the request of the said Josiah Taylor. All of which I certify under my hand and seal of office at Wlieelock, this 11th day of November, 1854 Saml. B. Killough,</p> <p>“Chief Justice and ex officio Notary Public, Robertson Co.” 15 Tex., 65.</p> <p>3, Deed — Record of.—It is sufficient to record a deed with its certificate of authentication, and the clerk need not copy into the record the certificate of record of another county. 47 Tex., 458.</p> <p>Common source.— Proof that defendant claims title under an heir Of plaintiff’s grantor is sufficient evidence prima facie of common source to maintain the plaintiff’s title against the defendant, if otherwise good.</p>

<p>1. Homestead.—The defendant, Eichard S. Skaggs, exchanged an interest in a mill for a tract of land in Johnson county, and, because it was rented out for that year, took a-bond for title. Before occupying the land he purchased of S. H. Mulkey, on a credit, a half interest in a mill at Fort Worth, for $1,600, assigning as additional security the title bond for the Johnson county land, and afterward caused a deed to be made to Mulkey therefor. Failing to pay for the mill property, his interest in it was sold under foreclosure proceedings, leaving a large portion of the debt unpaid. Skaggs separated from his wife, and she, after a time, moved on the Johnson county land. Afterwards tlie husband returned to his family, and they were living on the land when Mulkey brought suit for it. The land never having been occupied as a homestead before the title bond to it had been assigned and used as a credit in making the purchase of the Fort Worth mill property, the claim of Mulkey was superior to any homestead rights of Skaggs or his family, and the judgment of the court holding the deed to Mulkey a mortgage for the balance due on the mill, and ordering a sale of the land to satisfy it, was not erroneous. Baird v. Trice, 51 Tex., 555; Thompson on Homestead, secs. 244, 245, 255.</p>

<p>Appeal from Washington. Tried below before the Hon. A. S. Broaddus.</p> <p>This was an action of trespass to try title brought in the usual form by appellee, Thomas Dwyer, in the district court of Washington county, on the 22d of February, 1873, against appellant, A. H. Rippetoe, and his tenant, Julius Tainschusky, to try title to part of lot 43, in the city of Brenham, in Washington county, and for rents and damages, setting up the particular title under which plaintiff claimed the lot.</p> <p>The defendant pleaded not guilty. On a former trial judgment was rendered for plaintiff. The case was appealed. It is reported in 49 Tex., 498. In the opinion is given a statement of the principal facts (pp. 503, 504).</p> <p>January 13, 1879, the plaintiff amended his petition in the nature of a supplemental petition, alleging that the judgments under which the defendant held the lots were obtained by fraud, and that the sale by the sheriff under the said judgments, and Rippetoe’s purchase, was fraudulent. The amended petition alleged specifically the facts which had been introduced in evidence in rebuttal to the defense on the former trial.</p> <p>September 3, 1879, the defendant excepted to the petition as amended, because setting up a new cause of action which wTas barred by limitation, and because attempting to destroy a judgment by collateral attack, etc.</p> <p>The defendant, further amending, pleaded specially his defense. The foreclosure suit began Fe bruary 29,1860, by Testard y. W. B. Presley, to foreclose a vendor’s lien upon certain town lots (among them the lot in controversy), judgment, appeal and reversal. On return of mandate 18th February, 1867, making Perryman a party defendant, final judgment for $326.91, and decree ordering sale of the lots, rendered October 17, 1870. Also another suit by Harris, executor of Key, March 11, 1868, against Presley and Perryman on another purchase money note, part of same purchase, asking decree for foreclosure. Decree October 24, 1870.</p> <p>■ That pending the first said foreclosure suit,"February 19, 1861, Presley sold apart of the lots included in s.aid proceedings, and that defendant became purchaser and subsequently sold it, giving warranty deed, said property subsequently coming into the hands of Phlugart and Perryman. That for the purpose of protecting himself, the said Phlugart on April 16, 1870, bought said notes sued on, with the understanding that the suits should be prosecuted in names of the original plaintiffs, he to control them. Subsequently defendant bought a two-thirds interest in said notes for purpose of protecting himself; that the owners of the other parts of the lots secured by said vendor’s lien refused to aid defendant in discharging said lien. That November 28 and 29, 1870, the district clerk issued executions and orders of sale respectively on said judgments, under which, and at sheriff’s sale regularly made, defendant bought said lots at $100, which, from the condition of title and of adverse claims, was as much as their value.</p> <p>And further, as to the acts relied on by the plaintiff as fraudulent, the defendant pleaded the statute of limitation of two years; also limitation of the lot for three and five years uúder the conditions of statute of limitations before the amended petition was filed.</p> <p>September 4, 1879, plaintiff by supplemental petition alleged that under his original purchase he had had possession of the lot sued for down to the time of his eviction by Eippetoe, and in good faith had erected there'on valuable improvements worth $5,000; that said entry by defendant was obtained partly by force and partly by fraud and collusion with plaintiff’s tenants. . . That at the time of said illegal entry plaintiff was not aware of the claim of right under which defendant afterwards claimed. The defense in the suit was only the plea of not guilty, and that plaintiff did not learn nor have opportunity to learn, the same until the former trial, had September 16, 1874, when the defendant’s said title appeared in evidence; that on said trial a verdict and judgment were rendered for plaintiff for the premises, besides a money judgment for rents; that defendant took an appeal, which remained undecided until May 14, 1878, when the judgment was reversed and the cause remanded for further proceedings. Mandate issued December 24, 1878; that upon said trial September 16, 1874, it appeared that the defendant claimed under a purchase by him made January 3, 1871, under the said decrees, orders and executions. . . “And plaintiff now here having an opportunity for the first time since the defendant’s said title and claim first came to his knowledge, shows unto the court,” etc.; alleging that the judgment in the case of Harris, Administratrix of Key, v. Presley et al., was not conclusive as to the rights of plaintiff, suit having been brought in 1868, long after plaintiff’s purchase, and after he had possession, and to which plaintiff was not made a party, etc.; that plaintiff had had possession from March 16. 1861, until after said sale, and had no notice of the suit by Testard, Plaintiff, v. Presley. . . . That the said sheriff’s sale and the purchase by Eippetoe, and all anterior proceedings thereto, were fictitious, fraudulent and void as against plaintiff. . . That the purchase was made in furtherance of a conspiracy between defendant and others to use said proceedings for the purpose of sacrificing the rights of plaintiff and others under the forms of law, by using the note actually paid off as a bribe for selling, etc. . . . That both of said debts had been paid off before the rendition, which Eippetoe well lchow, while he, with others named, fraudulently obtained and used the judgment, etc.</p> <p>That the doctrine of Us pendens and of privity ought not to apply, because of the gross laches of the plaintiff in said suit in not prosecuting it to judgment, to all of which Eippetoe was party and privy, etc.</p> <p>The exceptions of the defendant to the amended petition were overruled.</p> <p>A synopsis of the material facts in the case, extracted from the brief of appellant, is as follows:</p> <p>1. Deed from Presley to Jennings, dated February 19, 1861, for that part of lot 43 in controversy in this suit.</p> <p>2. Deed from Jennings to Dwyer, dated March 16, 1861, for the same lot.</p> <p>3. Deed from the sheriff to Rippetoe, dated January 5, 1871, for lot 43 and part of lot 90.</p> <p>4. Parol testimony that Dwyer and those under whom he claims had possession of the lot in controversy from the time of their purchase of Presley till January 6, 1871, when Rippetoe took possession.</p> <p>5. That Rippetoe at one time owned the northeast corner of lot 43, under mesne conveyances from Presley, and was a remote vendor and warrantor of Perryman.</p> <p>6. That prior to the 17th and 24th days of October, 1870, Presley had sold all parts of lots 43 and 90 purchased by him of Browning, and that Perryman had no interest in either, except said northeast corner of lot 43 claimed through Rippetoe, as his remote warrantor.</p> <p>7. That pending said two suits, and before the rendition of said judgments, Rippetoe purchased the notes in said suits, paying the plaintiffs the full amounts of their respective demands, with the understanding and agreement that the suits might be prosecuted to judgment in name of the original plaintiffs for the use and benefit of Rippetoe, who assumed all liability for costs in said suits.</p> <p>In thi§ connection it was made to appear, on the part of defendant Rippetoe, that his principal object in purchasing said notes and in making said stipulations was to protect himself and his vendee from loss by reason of said suits.</p> <p>The defendant Rippetoe’s evidence of title as shown by the record was:</p> <p>1. Deed from Browning to Presley for lot 43 and part of 90, dated February 19, 1859, recorded June 18, 1859, and reciting that the notes sued on were given for balance of unpaid purchase money.</p> <p>2. On the 29th February, 1860, A. Testard, as assignee of one of saicl notes for the use of Lowery, instituted suit thereon in the district court of Washington county, praying for judgment and foreclosure of the vendor’s lien on said lots 43 and 90.</p> <p>3. On the 21st April, 1860, judgment with foreclosure of the vendor’s lien on said lots was rendered in said suit against said Presley, who, on the 29th September, 1860, removed the cause by writ of error to the supreme court, where, on the 18th February, 1868, the cause was reversed and remanded to the district court, where, on the 17th day of October, 1870, judgment, with decree of foreclosure of the vendor’s lien on said lots, was again rendered against • said Presley and Perryman.</p> <p>4. On the 28th November, 1870, an order of sale was issued on said judgment, and decree of foreclosure directing the sheriff to sell said lots to satisfy said judgment.</p> <p>5. A similar suit was commenced on the 18th of March, 1868, by E. D. Harris, on one of said notes, against Presley and Perryman, for a like purpose as the Testard suit; proceedings and sale thereunder are precisely similar to those in the Testard suit.</p> <p>6. Under the orders of sale issued on said decrees of foreclosure, the said lots were advertised for sale in accordance with law, and on the 3d day of January, 1871, as appears by the sheriff’s returns on said orders of sale, said sheriff sold said lots at public auction, as required by law, when appellant Eippetoe bid the sum of $50 at the sale under each of said executions, which were struck off to him by the sheriff for that price, which Eippetoe paid to the sheriff.</p> <p>7. Eippetoe, in his own behalf, stated that the lots were sold by the sheriff under said orders of sale in the usual way such sales are made; that he bid $50 for the lots under each of said orders of sale; that the lots were struck off to him for that price, under each sale, which amount he paid to the sheriff.</p> <p>8. It further appears from the record, as shown by Eippetoe, that the Testard suit to foreclose the vendor’s lien on .said lots 43 and 90 was filed 29th February, 1860, and was pending from that time till the decree of foreclosure was rendered 17th October, 1870; and that during the pending of this suit, to wit. on the 19th February, 1861, about a year after the suit was filed, Presley sold the lot in controversy to said Jennings, who, on the 16th March, 1861, thereafter sold and conveyed the same to appellee Dwyer.</p> <p>Verdict and judgment were rendered for the plaintiffs for the lot and for $2,083 rents.</p> <p>Motion for new trial was overruled, and defendant appealed.</p> <p>The errors relied upon and discussed relate to the overruling of the exceptions to the amended and supplemental petitions; chiefly because a new cause was set up therein, barred by limitation.</p> <p>Refusing instructions asked by the defendant; chiefly refusal to charge that Dwyer, the plaintiff, was bound by the foreclosure decree if a purchaser pendente lite.</p> <p>And in its charge given to the jury in instructing them substantially:</p> <p>“ That it appeared from record evidence that on the 17th and 24th days of October, 1871 (the dates of the rendition of the judgments), the said Presley and Perryman had no interest in the lot in controversy, and that the sheriff’s deed purporting to convey only such interest as they then had in said lot, defendant Rippetoe took no title, by his purchase, to said lot.”</p> <p>In the disposition of the assignments which may be noticed, such additional facts will be given as are deemed necessary to'their proper explanation.</p>

<p>Appeal from Brazos. Tried below before the Hon. Spencer Ford.</p> <p>This suit was instituted by Warren against Nance to enforce the specific performance of an agreement for the sale of a tract of land.</p> <p>The allegations of the petition as amended are, substantially, that on the 10th February, 1872, Warren purchased from Nance thirty-five acres of land, paying him cash $75, and delivering to him> his note for $170, due 1st January, 1873, with interest; that Nance made him a bond to make title to him when the note should be paid; that he went into possession of the land; that one Gottschalk recovered a judgment against Nance for $275", and a writ of garnishment was issued thereon against Warren, and judgment rendered against him for that amount in August, 1874, which Warren has fully paid off and discharged. He prayed that Nance be decreed to make title to him for the land.</p> <p>The defendant demurred, and answered, setting up a rescission of the contract.</p> <p>There was a verdict and judgment for the plaintiff, vesting the title in Warren, and from this judgment Nance has appealed.</p> <p>The assignments of error upon which the appellant relies are:</p> <p>1. That the court erred in refusing to sustain the exceptions to the plaintiff’s petition and amended petition.</p> <p>2. That the court erred in the giving and refusal of charges.</p> <p>3. In refusing a new trial.</p>

<p>1. Pleading — Limitation.—Where the petition does not show on its face that the right of recovery is barred, the defense of limitation cannot be set up by demurrer against it.</p> <p>2. Pbactioe — Pleading.— However inconsistent or repugnant the allegations may be in the pleadings of heirs who have been made parties in a suit by the administrator of their ancestor, they will not have the effect of annulling what the administrator has sufficiently alleged. Smith v. McGaughey, 13 Tex., 464.</p> <p>3. -Stale demand.— General allegations of absence, fraud, concealment, minority and coverture are too indefinite to avoid the defense of stale demand.</p>

<p>Appeal from Ellis. Tried below before the Hon. H. Barksdale.</p> <p>This case was before the supreme court on a former appeal. Graham v. Hawkins, 38 Tex., 628. The report in that case gives a history of the facts upon which the controversy exists.</p> <p>On a second trial, and in which the defendant Graham alone is interested in a tract purchased, the plaintiffs again recovered judgment.</p> <p>On the trial the grant by-probate court of Bowie county of letters of administration on estate of Y. M. Sublett to Martin Glover was shown; bond and oath of office; inventory and sale of personal property; application for “ permission to sell so much of the surveyed lands belonging to said estate, lying in Robertson county, west of the Trinity river, in Texas, as will pay said liabilities, say $1,500 more or less,” and order of court for such sale, made July, 1844.</p> <p>Ho return of the sale could be found in the office, though the amount of the sale of two leagues of land is carried into the final settlement. Depositions of the administrator were taken to the fact that such return of account sale had been made by him. A deed from Glover as administrator to the plaintiffs was read over objection.</p> <p>The.defendant showed patent to P. A. Sublett, assignee, his deed to Geo. A. Sublett, his deed to M. Smith, and Smith to defendant. A copy of the deed from P. A. to G. A. Sublett is given, as also the dates of the several deeds, in the report in 38 Texas. Defendant also proved payment in cash of the purchase money by him to Smith, and payment by Smith to G. A. Sublett.</p> <p>The court instructed the jury: “That probate courts are courts of general jurisdiction over the estates of deceased persons, and that all presumptions are in favor of the regularity of their proceedings. But such presumptions can be indulged only in the absence of proof and not against proof. You are further instructed that mere irregularities in the proceedings of the probate court do not affect the title of a iona fide purchaser at the administrator’s sale, and the order of court cannot be impeached collaterally for such irregu-' Iarities. When the orders and proceedings of probate courts are not only irregular but are null and void, their nullity may be shown in any collateral proceeding where they are relied on in support of a claim of right.”</p> <p>“The question to be determined in this cause is whether the proceedings of the probate court, and the sale and the deed thereunder by the administrator of Y. M. Sublett’s estate, are merely irregular, or whether they are null and void.”</p> <p>“ It is insisted by defendant’s counsel that the order of sale is too vague and indefinite, in that it does not describe or point out any particular land to be sold, and that the sale of land by the administrator was not reported under oath to the probate court, nor approved by said court; and for these reasons it is argued that the proceedings of the probate court and sale thereunder by said administrator are null and void.”</p> <p>' “In the absence of proof, after a long lapse of time the law presumes that the proceedings were all regular, and supplies the absence of any necessary fact to sustain the proceedings by the presumption that it existed at the time such proceedings were had. This presumption, as before stated, cannot be indulged against the record itself nor against proof.”</p> <p>“ You are instructed that, at the time of the sale of the land by said administrator, the law required him to report the sale in a given time under oath to the probate court. How, if the proof satisfies you that the order of sale did not direct the administrator to sell any particular tract or parcel of land, and that a sale was made by him under such order and never reported under oath to the probate court, nor approved by the court, then the proceedings are not only irregular, but null and void. The approval by the probate court of the final account of the administrator is not such an approval of the sale as will cure the omission to report the sale under oath under such circumstances.”</p> <p>After defining notice, and the facts necessary to support the plea of bona fide purchaser, the court further charged;</p> <p>“You are further instructed that a party is bound to take notice of the recitals in his own .deeds, and the recitals of others through whom he derives title, and if such recitals give notice to the party purchasing that there is an adverse claim to the land, he is bound to inquire into the same, and he is affected with notice thereof, and cannot under such circumstances be an innocent purchaser.” . . .</p> <p>“ The question of notice is a question of fact, and from the recitals in defendant’s chain of title, together with any other proof, you will determine whether he had notice, or not, sufficient to require him to make inquiry,” etc. . . „</p> <p>There was no registration so as to charge defendant with constructive notice. A further statement of the case is unnecessary.</p> <p>The appellant, Graham, assigns errors as follows :</p> <p>1. The court erred in permitting the deed from Martin Glover, administrator, etc., to plaintiffs, to be read in evidence,</p> <p>2. The court erred in its charge on subject of notice (that above set out).</p> <p>3. Error in refusing motion for new trial. (The motion urged: (1) the verdict was unsupported by the testimony; (2) not in accordance with the charge and with law; and (3) it was against law and evidence.)</p>

<p>Error from Lampasas. Tried below before the Hon. W. A. Blackburn.</p> <p>This was an action of trespass to try title brought in district court of Lampasas county on September 15, 1877, by plaintiff in error against the defendant in error, to recover lot 1 in block 3 of East Lampasas. The petition was in the ordinary form used in such suits. On September 27, 1877, defendant answered by a general denial, and specially that on and since February 19, 1876, she and her husband, M. Horrell, now deceased, were residing on said lot, occupying it as a homestead, and continued to reside thereon until the death of her said husband in February, 1877, and that she and her children still resided thereon; that plaintiff claimed the land by virtue of a deed dated February 19, 1876, signed by M. Horrell, husband of defendant, who also wrote defendant’s name thereto and required her to make her mark thereto; that said deed was never read or explained to her;that she did not know the said instrument was a deed; that the consideration expressed therein was inadequate, and she prays that said deed be canceled. The answer was not sworn to. Plaintiff filed exceptions to the answer, which do not appear to have been passed on by the court. The case was tried by the court without a jury, and judgment rendered for defendant on September 29, 1877. Motion for new trial filed by plaintiff on September 29, 1877, which was overruled on same day, and plaintiff gave notice of appeal to the supreme court. The petition for writ of error, bond and assignment of errors were filed December 21,1878. Citation in error was issued on January 6, 1879, and served on January 10, 1879.</p> <p>The first assignment of error is that the court erred in overruling plaintiff’s objections to the testimony of W. L. Bradley, Mrs. Bowen, Mrs. Dixon and Martha E. Horrell(the defendant), the said testimony being offered to contradict the certificate of acknowledgment to the deed from the defendant and her husband to plaintiff, and which had been introduced in evidence by plaintiff.</p> <p>The second assignment of error is that - the court erred in rendering judgment for defendant and not rendering judgment for plaintiff, in this': plaintiff having introduced in evidence the deed from the defendant and her husband to the plaintiff, the evidence offered by defendant was insufficient to destroy the legal effect of the deed, it not being shown that the plaintiff, the grantee in the deed, knew that the requirements of the law in regard to the separate examination of -married women had not been complied with.</p>

<p>Appeal from Washington. Tried below before the Hon. • E. B. Turner.</p> <p>This suit was commenced on the 11th day of November, A. D. 1874, by the issuance of citation and distress warrant upon affidavit made before S. A. Hackworth, justice of the peace, by C. 0. Lockett, stating:</p> <p>1st. That James Maynard is justly indebted to L. J. and C. C. Lockett in the sum of six hundred and fifty coin dollars, “ as more fully appears by an account hereto attached, marked exhibit ‘ A,’ for rent of certain premises situated in said county, and now occupied by said Maynard.”</p> <p>2d. The said rent is now due and unpaid.</p> <p>3d. The distress warrant now applied for (November 11, 1874) is not sued out for the purpose of vexing and harassing the defendant.</p> <p>4th. Exhibit “A:”</p> <p>“ James Maynard, Dr., to L. J. and G. G. Lockett, coin:</p> <p>“ To rent of livery stable lot and improvements situate in city of Brenham from October 1, 1873, to November 1, 1874, at $50 coin per month, $650.”</p> <p>The distress warrant was returnable to the district court of Washington county on the first Monday in February, A. D. 1875.</p> <p>The citation issued November 11, 1874, from S. A. Hack-worth, requiring the defendant Maynard to appear before the district court on the first Monday in February, A. D. 1875, to answer a petition to be filed by L. J. and C. 0. Lockett, was executed in due time.</p> <p>By virtue of this warrant, the Sheriff levied upon $855 worth of horses, buggies, hacks, of the defendant upon the premises, and retained possession thereof for several days and until replevied.</p> <p>Plaintiffs filed a petition alleging “ that defendant had held the leased premises by a written contract for one year from October 1, 1872, at a monthly rent of $50. That after said year defendant still held over on his said lease, and continued to use and occupy his livery stable (the leased premises) with the tacit understanding that he should continue to occupy the same upon the same terms as stipulated in said written contract.” . . . “ That by reason of such holding over of said premises under said written. contract by said defendant, during said period of time, from October 1,1873, until November 1,1874, said defendant undertook and promised to pay to plaintiffs monthly the sum of $50 coin;” failure to pay, distress warrant, etc.</p> <p>It seems that the term of court to which the writ was returnable began February 1, 1875. The petition does not appear to have been filed until February 9, 1875.</p> <p>February 12, 1875, defendant filed a plea to the jurisdiction of the court, and a separate motion to dismiss “ because the petition was not filed as the law requires.”</p> <p>March 27, 1875, the motion to dismiss was overruled, and defendant excepted.</p> <p>June term, 1875 (marked on margin January 9), defendant filed a general demurrer and special exceptions; and in bar: (1) general denial; (2) admitting the written contract for one year from October 1, 1872, and “ that the said contract expired by its terms on the 1st day of October, 1873; that thereafter defendant, with consent of the plaintiffs, continued to occupy the said rented premises until the 10th day of November, 1874.” . , . “ He expressly denies that any contract for rent of said premises was ever afterwards entered into by and between this defendant and said plaintiffs.” (3) A suit for the premises against plaintiffs and defendant; (4) and damages in reconvention for wrongfully suing out distress'warrant (alleging that plaintiffs’ demand is unjust, extortionate and oppressive, in this, that without cause, and in the absence of a contract for rent, etc., etc.), the warrant had been sued out, his stock seized, his feelings injured, etc.</p> <p>January 31,1877, defendant, amending his answer of June 9, 1875, denied all plaintiffs’ allegations save as in said answer admitted; alleged that the reasonable rental value of the leased premises for the time he held them was $15 per month; alleging payments, and withdrawing so much of his pleading as seeks to recover damages for wrongful and malicious suing out and levying the distress warrant.</p> <p>January 31,1877, plaintiff amended, praying specifically for judgment for his rent and for order of sale, etc.; and further, “that when said defendant held over under said written lease he then and there undertook and promised plaintiffs to pay'them so much rent for said premises as (they) were reasonably worth; and that they were reasonably worth the sum of $50 coin per month in advance.”</p> <p>On the trial the plaintiff proved the distress warrant proceedings, levy, replevy, etc.; proved the written contract for lease from October 1, 1872, for one year.</p> <p>L. J. Lockett, one of the plaintiffs, testified: Plaintiffs leased the livery stable and premises described , in the written contract, to the defendant, and the contract was by them, executed. That defendant took possession and occupied' them until after November 1, 1875. That suit for the first year’s rent under the contract was instituted in fall of 1874. That that year’s rent was afterwards paid and suit dismissed, defendant paying costs. -'i</p> <p>The account (now) sued on is just, and the rent money unpaid. Defendant, at the institution of this suit, owed on said contract $050 in coin, rent for said premises for thirteen months, beginning October 1, 1874. Tnat defendant occupied said premises prior to the execution of the léase contract. . . . That about October 1, 1874, defendant said something to witness about reducing rents; did not remember what was said between them, but it was not done. No other contract was made after the written contract was executed, The premises were worth $50 per month, the price agreed to be paid, as set out in the written lease. That the written lease secured the value. Defendant was entitled to some credits, allowed at $91.</p> <p>Defendant Maynard testified that he had leased and occupied the livery stable premises before the written contract; had forgotten the terms. That a year after the written lease was executed, and after defendant had occupied the premises about a year under the lease, defendant spoke to the plaintiff, L. J. Lockett, about reducing the rent of the premises. (Here plaintiff, with alleged view of showing a paro! surrender of the written lease, and after its termination he was to pay only so much as the premises were reasonably worth, asked the witness the following questions:) “ State whether or not, on the expiration of the written lease, you staled to the plaintiff, L. J. Lockett, that you would not continue to occupy the rented premises on the same terms, and what was the said Lockett’s reply?” To which the plaintiffs objected, (1) because the defendant "had no allegation in his pleadings under which the question and answer were admissible; (2) that defendant had set up no new contract; and (3) he could not, by saying that he would not pay the same rent, relieve himself of his legal liability, but must either make a new contract or leave the premises. '</p> <p>- The court sustained the objections and excluded the questions and answers.</p> <p>The witness continued: The premises, during the timé from October, 1874, till ¡November, 1875, were not worth the price set out in the written lease; in fact not more than $15 per month. The property levied upon was in the custody of the sheriff seven days before the replevy bond was approved; meanwhile, the sheriff left it in hands of defendant, wnh his promise not to use it. During that time the property would have been worth to the defendant $15 per ■ day clear profit, but defendant could not use it on account of instructions from the sheriff.</p> <p>Leonard Gee, for defendant, testified that the rental value of the property from October 1,1874, to November 1,1875, .was not more than $20 per month, in his opinion.</p> <p>The court rendered judgment for the account sued on and' ordering sale of the property seized. Motion for new trial was overruled and defendant appealed, assigning errors:</p> <p>1. In overruling defendant’s motion to dismiss, for reason" given.</p> <p>2. Overruling motion to quash, for reasons in motion, which were departure in the petition, etc.</p> <p>3. Overruling demurrer and exceptions.</p> <p>4. Excluding the testimony of James Maynard, as shown •in bill of exceptions.</p> <p>5. The judgment is excessive and not sustained by the testimony.</p> <p>6. The judgment is not suchas is authorized by statute in such cases.</p>

<p>'1. Insurance — Pleadings.— In a suit on a fire insurance policy by the administrator of the party taking out the insurance, the additional allegation, where the petition sets out a good cause of action, that the plaintiff had, after the loss, transferred the policy to another, and submitting to the court “that if it shall be decided your petitioner did not have authority, as administrator of said estate, to make such sale and transfer of said policy, that judgment shall be rendered for plaintiff as administrator; but that, if judgment can. be rendered for Carothers, that it may be rendered for , him,” did not render invalid the otherwise sufficient allegation of the plaintiff’s cause of action.</p> <p>2. Assigning policy of insurance.— An assignment of a fire insurance policy after a loss has occurred will not vitiate the policy. Wood on Ins., 559. 575; Carter v. Humboldt Ins. Co., 13 Iowa, 287.</p> <p>3. Sale of insured property. — The sale of the property insured will not invalidate the policy thereon, if the insured at the time of the loss still had an insurable interest therein as a lien for unpaid purchase money, or otherwise holds such relation to the property that its destruction by the peril insured against involves pecuniary loss : to him. West v. The Citizens’ Ins. Co., 27 Ohio St., 1; Jackson v. Palmer, 52 Tex., 427; Jackson v. Æ na Ins. Co., 16 B. Mon. (Ky.), 242; Wood on Ins., 481; Oliver v. Green, 3 Mass., 133; May on Ins., 76.</p>

. Appeal from McLennan. Tried below before the Hon. L. C. Alexander. This suit was brought by Frankland for the recovery from Cassiday of two tracts of land in McLennan county. The petition is in the ordinary form of trespass to try title.

<p>1. Partnership—Notice of dissolution.— A retiring partner can only relieve himself from liability for debts thereafter incurred in the firm name by giving express notice to all persons dealing with the firm, and the world in general, of the dissolution of the partnership.</p> <p>2. Interrogatories to adverse party — 'When not taken for confessed.—A defendant caused interrogatories to be propounded to himself, which the plaintiff crossed. Instead of answering them he appeared before the officer receiving the commission and declined to answer, on the ground that he intended to attend the trial and testify on the stand. Having appeared at the trial and testified, failure to answer the cross-interrogatories of the plaintiff did not warrant their being taken as confessed.</p>

<p>1. Citizenship — Naturalization.— A colonist who, in 1831, received a grant of land, in Texas, and took the oath of allegiance, became a naturalized citizen, with all the rights of property and of person which he could have were he “ native here and to the manor horn.”</p> <p>2. Alien.— The minor daughter of a colonist, though never in Texas, is not an alien, even if living in an alien country, but callable of inheriting from him, and entitled to share with his other children and his widow in the distribution of his estate.</p> <p>3. Domicile — Citizenship — Minor.— The citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen is concerned, and the domicile of the minor child is that of the father. He being in Texas, his minor children, no matter where they may be, are citizens of, and have their domicile in, Texas also. At the death of the father, his domicile remains that of the children. Minors cannot change their domicile or acquire another until they become persons sui juris.</p> <p>4. Foreign law -t- Evidence.— A foreign law must be proved as a fact, and in the absence of proof the presumption is that it is the same as in Texas.</p> <p>5. Partition.—In a suit for partition every one having an interest in the property must be made parties to the suit; and if all are not made parties, the decree rendered in such proceeding is not binding even on those before the court.</p> <p>6. Practice —Parties—Partition.—If, in the course of the trial of a suit for partition, it becomes apparent that there are necessary parties not before the court, the case should be stopped and the parties brought in before rendering a decree. A decree of partitioñ is not binding on the parties to it unless they represent the whole of the estate.</p> <p>7. Limitation — Possession.—The possession of a co-tenant or tenant in common will be presumed to be in right of the common title. The tenant cannot claim the protection of the statute of limitations unless it clearly appear that he repudiates the title of his co-tenant and is holding adversely to it. In such case his acts and declarations will be construed much more strongly against him than when there is no privity of title.</p> <p>8. Land —Purchaser with notice.—The purchaser who buys land by metes and bounds from an heir, with knowledge of a division between the heirs and their ancestor's widow, by which thé widow received as her community interest a particular half of the survey, has no right, in a partition suit by one of the heirs, to complain because the widow’s half is not included in the suit.</p> <p>9. Limitation.—Disabilities cannot be piled one upon another.</p>

<p>1. Non-resident — Jurisdiction of probate court.—The probate courts of Texas have jurisdiction over the assets of a non-resident, who, dying at his domicile, leaves credits in this state. Jones v. Jones, 15 Tex., 465; Green v. Hugely, 23 Tex., 539.</p> <p>2. Laws of the domicile — Distribution of personal property— Jurisdiction.—The laws of the domicile direct and control the distribution of the movable property of the intestate; but when the jurisdiction of a court other than that of the domicile has been in-yoked in the administration, such administration is governed in its proceedings, in its beginning, progress and close, by the laws of the country granting such letters; and administration in Texas cannot be controlled in its mode of collecting the assets of an estate by the courts of the domicile of the deceased. Wilkins v. Ellett, 9 Wallace, 740; Story’s Con. L„ 509-513, 514, 516, 518; Pas. Dig., 5490.</p> <p>8. Interest — Administrator chargeable with, when he resists.— In a suit against an administrator he may save interest by tendering into court the money remaining in his hands; but if he resists the proceedings of one entitled thereto, it is proper to charge him with interest from the time the money should have been paid over, or demand made.</p> <p>4. Classifying claim against an estate.— Where suit was pending at the date of the defendant’s death, and was continued by his administrator, the proceedings are such an exhibition of the claim as will warrant the grading of it in the judgment rendered thereon.</p> <p>6. Defense not good.— See this case for a defense to an action held not good.</p>

<p>1, Quitclaim deed.— A deed which recites that the grantor conveys “ all my right, title, claim and interest in and to the following described tract of land ” (describing it); “ and I do forever quitclaim all my claim and interest in and to the above-named tract of land,” is only a quitclaim deed, and passes no title to the land as against a prior unrecorded conveyance of the property. Rodgers v. Bur-chard, 34 Tex., 452; Harrison v. Boring, 44 Tex., 256; Taylor v. Harrison, 47 Tex., 460; 11 How., 322; Washburn on Real Property, vol. 4, 438; Wright v. Lancaster, 48 Tex., 255; Smith v. Pollard, 19 Term., 373; 14 Kan., 148.</p> <p>3. Unrecorded conveyance—Quitclaim deed — Lien of judgment creditor.— While the lien acquired by a judgment creditor by a levy of an execution upon land of the judgment debtor is superior to the title of one claiming under an unregistered deed, yet the lien only attaches to such title as may be in the debtor, and if he has only a quitclaim deed to the land he can have no title thereto as against a prior unrecorded conveyance of his vendor, and a sale by the sheriff passes no title to the property. Borden v. McBae. 46 Tex., 396; Kavanaugh v. Peterson, 47 Tex., 197; Grace u Wade, 45 Tex., 523.</p>

<p>1. Pleading—Perversion of trust property.— In 1854 certain citizens of the city of Bonham, and Fannin county, together with Masonic Lodge No. 18, established, by the subscription of money and property in sums from $25 to $1,000, an institution of learning, intended for the instruction of females alone, where no sectarian religious doctrines of any kind should be taught,—the lodge, by agreement of all parties, being selected as trustee,— and on January 24, 1856, Bailey Inglish donated ground on which to erect the necessary school buildings, conveying the land to the lodge . . . “ to have and to hold the said four acres of ground unto the said Constantine Lodge in trust for the stockholders of the Bonham Masonic Female Institute.” In 1868 the lodge sold and attempted to convey the land away; the purchaser took possession, opened a mixed male and female school, and undertook to make it a Campbellite institution. In a suit by a number of the subscribers to have the property restored to the use originally intended, held: (1) The petition showing the suit was to enforce a trust for charitable uses, and prevent the perversion of the trust property to improper uses, disclosed a good cause of action. (2) Evidence was admissible to show that by “ stockholders,” in the deed to the land, was meant subscribers to the institution; and (3) That an election of trustees in accordance with the act of January 30, 1845, authorizing the appointment of trustees in certain cases, was not necessary to complete the organization of the institution, or essential to its existence. Dana v. Fielder, 13 N. T., 40; 1 Greenl.. Ev., sec. 388; Wharton, 930; Thomas v. Bllmaker, Select Cases in Equity, 110; Paschal v. Acklin, 27 Tex., 200.</p> <p>0. Parties—When very numerous.— While the rule that all parties in interest ought to be made parties is well established, so also are the exceptions to it; and where parties interested in the subject-matter of a suit are very numerous, some of them may maintain a suit for themselves and others interested in like manner. Story’s Equity PL, 94, 97, 114.,</p> <p>D. Pleadings — Showing ground foe belief.—A petition alleging a sale of trust property, its diversion from its intended use, and a direct repudiation of the trust by the trustee, shows sufficient cause why relief should be granted. Story, Eq., sec. 1199; Livingston v. Lynch, 4 Johns. Ch., 594.</p> <p>4. Evidence—Notice.— Parol evidence is admissible to establish a trust. The trust being declared in the deed to the trustee, the purchaser buys with notice of it. Abbott’s Trial Evidence, 295; Reeves v. Bass, 39 Tex., 295; Greenl. Ev., 288; Wharton’s Ev., 1042, 1044.</p> <p>5. Assignment of errors.— All errors not distinctly specified in the assignment of errors will be considered by the supreme court ns waived. Clements v. Hearne, 45 Tex., 415; Elliott®. Mitchell, 28 Tex., 107; Howard v. Colqnhoun, id,, 184.</p>

<p>Appeal from Washington. Tried below before the Hon. E. B. Turner.</p> <p>The facts are stated sufficiently in the opinion.</p>

<p>1. Land—Void executor’s sale—Purchaser subrogated to rights of creditors.— An executor under a will, which did not give him power to sell, sold land to pay debts against the estate without obtaining an order of sale from the probate court. In a suit by the heirs to recover the land on the ground that the sale was void, the purchaser or his vendee, the purchase money having been used to pay debts of the ancestor, is entitled to be subrogated to the rights of the creditors, and to retain possession of the land until his money and interest is repaid to him. 48 Tex., 257 ; 5 Tex., 291; 9 Tex., 813; 13 Tex., 118; 21 Tex., 288; id., 774; 19 Tex., 205; 38 Tex., 219; 29. Mo., 152; 1 Dev. & Bat. Eq.-, 427 ; 29 Wis., 182; 8 Grattan, 320; 11 Martin, 607; 40 Wis., 66. ■</p>

<p>Appeal from Falls. Tried below before the Hon. D. M. Prendergast.</p> <p>On the 29th of July, 1874, the appellee, Malinda Soders, filed her suit against E. C. Stuart, administrator of S. S. Ward, deceased, alleging the execution of the notes sued on by S. S. Ward to her in consideration of one thousand two hundred and eighty acres of land described in her petition; the proof and presentation of the claim against the Ward estate, and its allowance and approval; the nonpayment of the notes, and that appellant Rice had acquired the “ equity of redemption ” of the land, and praying a foreclosure of her vendor’s lien.</p> <p>The defendant Stuart failed to answer. Appellant answered, alleging his purchase of the land from Ward, without notice of appellee’s vendor’s lien, for a valuable consideration.</p> <p>The testimony adduced on the trial was as follows:</p> <p>Plaintiff read in evidence the notes described in the petition, their probate, presentation, allowance and approval against Ward’s estate. The notes bore date 2d October, 1867.</p> <p>Plaintiff then proved by J. W. Watkins “ that, after the notes described in plaintiff’s petition had been made by S. S. Ward to the plaintiff, she deposited them and two other notes, bearing even date and of like amount, xvith witness for safe-keeping and collection. That Ward, in paying the other two notes, told witness that these notes were given for one thousand two hundred and eighty acres of land described in plaintiff’s petition.”</p> <p>The plaintiff, being sworn, testified “that, shortly before the death of A. L. Soders, he sent for Ward and sold him the land described in plaintiff’s petition and took the notes sued on from him, payable to plaintiff, for a part of the purchase money, saying that he wanted her (plaintiff) to have the benefit of the land, and that he thought it would be better for her to have the notes than the land left her. And A. L. Soders gave her the notes.”</p> <p>Plaintiff then proved by F. A. Rice:</p> <p>“ That he bought the land described in the petition from "S. S. Ward for Wm. M. Rice.”</p> <p>“ That he did not know of any vendor’s lien being on the land.”</p> <p>“That Wm. M. Rice did not pay anything out on the land, but that S. S. Ward was largely indebted to Wm. M. Rice & Co. at the time of the purchase, contracted long before, and that the price of the land was credited on the debt due Rice & Co. by Ward. The price of the land credited to Ward was $2 per acre. That he bought other property at the time on this debt, and after giving Ward credit therefor, there was still due thereon about $7,000.”</p> <p>“ At the time of the trade I examined the record and found no lien and inquired about the title, and Ward declared to me that the title ivas clear. ”</p> <p>Defendant read in evidence the deed from A. L. Soders to S. S. Ward, dated September, 1867, conveying the said land. The deed recited receipt of the full consideration, $600. The deed from Ward to Rice is a warranty deed.</p> <p>Judgment was rendered for plaintiff, subjecting the land to the notes, ordering sale, and subrogating Rice to the plaintiff’s rights against the estate of Ward.</p> <p>Rice appealed, assigning as error:</p> <p>1. “ The court erred in adjudging the notes sued upon to be a lien for the purchase money on the land described in the petition, because the facts do not show that the notes were given for the purchase money, the notes being dated October 2, 1867, and the deed from Soders to Ward being dated September, 1867.”</p> <p>2. “ The court erred in rendering judgment enforcing the lien of the notes against the land, because Rice appears to have been an innocent purchaser, Iona fide and for a valuable consideration, without notice,” etc.</p>

Tried below before the Hon. R R. Gaines. Becardo Be Zavalla, Emily Hand, Augustine Zavalla, Catharine A. Hutchison, W. E. Hutchison, Lorenzo Be Zavalla, Jr., Gertrud^, Lenoria, Lorenzo Lenorio and Ignacio Lenorio, as heirs of Lorenzo Be Zavalla, sued in trespass to try title, petition being in the usual form, Wm. B. Baker and others, in the district court of Lamar county, for twenty labors of land in said county, patented to the heirs of said Lorenzo Be Zavalla.

<p>Appeal from Washington. Tried below before the Hod. E. B. Turner.</p> <p>Hendiey & Co. brought suit against P. M. Daniel' in the district court of Washington, on 23d October, 1876, on an account due them, and one due Cannon & Williams, assigned to them.</p> <p>On 23d ¡November 1876, a writ of garnishment was sued out against J. T. Swearingen.</p> <p>Judgment by default was rendered in favor of Hendiey & Co. against Daniel for $1,802.64, 4th August, 1877.</p> <p>On 6th January, 1877, Swearingen, answered the writ of garnishment, stating that on the 10th August, 1876, the defendant Daniel executed to him a deed of assignment of his notes, accounts and other effects, with authority to collect the same, and, after paying all reasonable and proper charges, to pay Daniel’s creditors the full amount due them, and in case the proceeds were insufficient to pay the debts in full, then to pay the creditors pro rata, in proportion to the .amount due each. The deed of assignment, together with a list of the debts due Daniel, amounting to the sum of $6,008.26, and of the names of his creditors, with the amount due each, including the claims upon which this suit was brought, amounting in the aggregate to $10,809.96, was attached to his'answer.</p> <p>It was further alleged in Swearingen’s answer that the assignment was made in good faith, included all of the assets belonging to Daniel, and gave a correct list of his liabilities, and that he had accepted the same and undertook its obligations in good faith. At the date of his answer, he had collected 81,572.62, which he was ready to distribute in accordance with the terms of the deed of assignment.</p> <p>On 20th January, 1877, Hendley & Oo. filed an affidavit controverting the truth of Swearingen’s answer, and charging that this assignment was made with intent to hinder and delay and defeat creditors, and is, therefore, null and void. It is specially charged:</p> <p>1. That at the time of making this assignment, Daniel was notoriously insolvent.</p> <p>2. That on 29th July, 1876, Daniel, then a retail merchant in Brenham, sold his stock of goods to Hodde & Werner, secretly, for an inadequate consideration, to prevent creditors from attaching them.</p> <p>3. That he has secreted the proceeds of the sale and reserved it for his private use.</p> <p>4. That he preferred creditors, paying Basset & Basset fraudulently.</p> <p>5. That Swearingen was Daniel’s attorney, and that the assignment was made to him and accepted by him, knowing its fraudulent character, and aiding and abetting Daniel in the same.</p> <p>6. That the assignment has never been accepted by the pretended beneficiaries.</p> <p>7. That half the notes and claims recited in the schedule as transferred to Swearingen were fictitious, barred by limitation, and uncollectible.</p> <p>8. That he reserved his most valuable claims for his private use.</p> <p>9. That the schedule of his creditors is false. That at least half of the claims enumerated are not valid debts. That some of them are debts due by Daniel as a member of the partnership, and not to be classed with his individual debts.</p> <p>10. That Daniel had not delivered his books and papers to the assignee.</p> <p>To these allegations the garnishee replied, denying them so far as inconsistent with his answer, etc.</p> <p>The case was submitted to the judge, who rendered judgment against the garnishee in favor of Hendley & Go. for the money in his hands, declaring the assignment null and void, and enjoining Swearingen from transferring the notes and effects in his hands, but that he hold the same in trust for Hendley & Go., who are declared to be Daniel’s only creditors; that he collect them and pay the proceeds over to them until their judgment is fully satisfied.</p> <p>Swearingen filed a motion for a new trial, which being overruled, he appealed.</p> <p>There are several assignments of error, but the appellant relies principally upon these — that the. judgment is against the evidence, and that the proper parties were not made.</p>

<p>1. Grant—Presumption as to acts of officers of a former government.— When it does not clearly appear to the contrary, the acts of officers of a former government will be presumed to be within, and not in excess of, their authority. A grant made December 17, 1834, by “Gaspar Florez, first alcalde of Bexar and provisional civil chief of the province,” to Ramon Musquez, of three hundred varas square of “ secularized Mission lands ” in the “ outer labor ” of the city of San Antonio, would, if proved, be a sufficient evidence of title in Musquez. 1 Tex., 699; 7 Tex., 443 ; 9 Tex., 335; 15 Téx., 90; 47 Tex., 583; Wharton on Ev., sec. 1315.</p> <p>3. Evidence—Certified copy.—A document purporting tó be “a certified copy of the record of a grant to Ramon Musquez, registered in the books of registry of Bexar county in Spanish,” is inadmissible in evidence, because, if the original was a grant from the government, it should have been archived in the general land office, and .copies thereof authenticated by the certificate of the commissioner of the general land office. If the original was a transfer from the authorities of the city of San Antonio to Musquez, it was an archive of the office of the clerk of the county court of Bexar, and copies of such archive, and not of the registry of Bexar county, would be admissible. 47 Tex., 394; 49 Tex., 396; 9 Tex., 103; 8 Tex., 330.</p> <p>3. Registration —Evidence.—To render a certified copy of the record of an instrument admissible in evidence, the registry of the original must have been authorized. 47 Tex., 458; 51 Tex., 58.</p> <p>4. Notice — Original grant.— The presence of an original grant as an archive in the office of the county clerk, even of the county where the land may be situated, is not notice. The registration laws take no notice of the archive as part of the records provided for by them. 11 Tex., 93; 39 Tex., 333; 47 Tex., 114.</p> <p>5. Innocent purchaser without notice.—The purchaser of land covered by a grant which has never been deposited in the general land office, delineated on the county map or properly recorded in the county where the land is'situated, having paid the purchase money, may plead innocent purchase without notice. 45 Tex., 361; 15 Tex", 410.</p> <p>6. Fee-simple deed — Three tears’limitation.— A deed reserving a lien for the purchase money, and providing for foreclosure and not for resumption of possession upon failure to pay interest and purchase money, conveys a fee-simple legal title, and the vendee may plead the statute of limitation of three years under it. 47 Tex., 540; 53 Tex., 353.</p> <p>7. Amendment—Limitation.—-An amendment making new parties defendant is, as to those so made parties, a beginning of the suit, and limitation runs to the date of filing such amendment. 28 Tex., ' 583; 52 Tex., 883.</p> <p>3. Trespass to try title — Part owners.— finder the Revised Statute, part owners suing in trespass to try title must disclose the interest claimed.</p>

<p>Error from Caldwell. Tried below before the Hon. L. "W. Moore.</p> <p>The facts appear in the opinion.</p>

• Appeal from Milam. Tried below before tbe Hon. Spencer Ford. August 15, 1876, E. A. Deslonde, Maria D. Deslonde, Louisa Douglass and Eobert Darrington brought an action of trespass to try title against Stephen Jackson and M. Farley, for two thousand two hundred and twenty-two acres of land, “part of a grant of four premium leagues granted by the government of Coahuila and Texas to Sterling 0.

<p>1. Contract—Location of land certificate.—An agreement on the part of an attorney, in consideration of an interest in the land, to do all the legal work, and incur all expenses of whatever kind connected with the location of aland certificate, and getting patent thereon, does not include services rendered necessary by litigation arising after the patent has issued.</p> <p>3. Attorneys’ fees.— An attorney’s fee of $6,000 is excessive, where the client has only one thousand six hundred acres of land involved in the suit.</p> <p>8. Attorney and client — Fees.—Where a suit involved the title to ten thousand acres of land, one thousand six hundred acres being owned by the client, and the remainder by the attorney, to charge the client with one-half of the entire amount of attorneys’ fees, and expenses of the litigation, is inequitable.</p> <p>4. Purchaser subrogated to vendor’s rights.—The purchaser from an attorney of an interest in land acquired in payment for services rendered in litigation involving title thereto is subrogated to the rights of his vendor in whatever lien or incumbrance he may have upon the land.</p> <p>6. Partition—Personal judgment against the heir.—It is error to render a personal judgment against the heir in a partition pro- . ceedings, without limiting his liability to the assets or property derived from his ancestor.</p> <p>6. Incumbrance — Partition.—An incumbrance descending with the land to the heir may be made available as a defense against his right to partition, and to participate as joint owner, until it is removed, or the interest may be sold to adjust the rights of the parties in an equitable partition; but when the interest which has thus descended has been sold in partition proceedings, and the heir has no longer an interest in the land to be partitioned, the purposes of the proceedings for partition will have been accomplished, and the remedies of the other tenants in common to enforce their claim on a moneyed demand against the ancestor exhausted, unless by proceeding to enforce the collection of their account for money by such other form of procedure as may be appropriate.</p> <p>7. Sales by co-tenant—Partition.—Land sold by one co-tenant without the consent or authority of the other, and not the proceeds thereof, should, in a partition of the residue, be charged against the party making such sale.</p>

<p>1. Judgment—Limiting or extending its effect by the pleadings— Arbitration.— A judgment erroneous for want of issues by the pleadings will be corrected on appeal, but it is not void. The extent of a decree, within the jurisdiction of the court rendering it, will be determined by its terms alone, and it cannot be restricted in a collateral attack by the pleadings, nor can the preliminary proceedings be examined to extend its effect or enlarge its meaning. Where the plaintiff sued to foreclose a mortgage on several tracts of land, including half of a third league survey, and during the progress of the case the parties submitted the matters to arbitrators, who awarded the whole of the third league survey to the plaintiff, and judgment was rendered accordingly, the decree passed the title to the land. Freeman on Judgments, 135; Weathered v. Mays, 4 Tex., 388; Tadlock v. Eccles, 20 Tex., 791; Withers v. Patterson, 27 Tex., 491; Vogelsang v. Dougherty, 46 Tex., 472; Taylor v. Snow, 47 Tex., 465; Guilford v. Love, 49 Tex., 740; Kendall v. Mather, 48 Tex., 598.</p> <p>2. Mistake—Correcting judgment by parol.— An application to correct a judgment by parol testimony on the ground of mistake, made twenty-six years after the alleged mistake occurred, with no allegation of ignorance, comes too late. Where it is sought to correct a mistake in a judgment by application in the court where it occurred, the application, by analogy to a bill of review, would be limited to two years from the time of the discovery of such mistake. Milam Co. v. Robertson, 47 Tex., 235; Weaver v. Shaw, 5 Tex., 289; Connolly v. Hammond, 51 Tex., 647; Smith v. Fly, 24 Tex., 352; Kuhlman v. Baker, 50 Tex., 636; Munson v. Hallo well, 26 Tex., 475; Alston v. Richardson, 51 Tex., 6; 2 Story, Eq. Jur., § 1521a.</p> <p>8. Outstanding title—■ Mortgage.— A mortgagor, notwithstanding the. terms of the conveyance, remains the real owner of the fee, and being entitled to the possession of land mortgaged, after as well as before breach of condition of defeasance, the mortgage cannot be pleaded as an outstanding title. Johnson v. Byleiy 45 Tex., 509; Burgess v. Millican, 50 Tex., 401; Duty v. Graham, 12 Tex., 434; Mann v. Falcon, 25 Tex., 275; Morrow v. Morgan, 48 Tex., 808; Peters v.,Clements, 46 Tex., 115; Wright v. Wooters, 46 Tex., 380; Sample v. Irwin, 45 Tex., 567; Moreland v. Barnhart, 44 Tex., 283. , .</p>

<p>1. ©ommunity property — Limitation. — The title of the heirs of the mother to one-half of the community property, after her death, is as absolute and perfect as that of’the father; and where they have reduced her interest in the community property to possession, a creditor seeking to subject that interest to the payment of what he claims to be a community debt, can only do so by showing that he has a valid claim against the ancestor. A judgment obtained against the husband in a suit brought after the death of the wife, and to which the wife’s heirs were not parties, does not. constitute a valid debt against the heirs or their ancestor. As against the heirs, the suit against the husband does not stop the running of the statute of limitations, and if at the time the proceedings against them upon the judgment against the husband are instituted the claim on which the judgment is based would be barred, they may plead limitation against the judgment.</p>

<p>1. Jury.— Where the transcript recites, “ a jury came of good and lawful men, R. G-. Childress and eleven other’s,” the objection that the record does not show that a jury of twelve men were impaneled to try the cause is frivolous. Clark v. Davis, 7 Tex., 560; Johnson v. Smith, 14 Tex., 412.</p> <p>3. Practice — Entering special issues in the'minutes.— While it is proper that special issues submitted to the jury and their verdict thereon should be entered in the minutes of the court, yet where the transcript shows that the issues were made up under the direction of the court and made a part of the record, the omission to so enter them on the minutes is not such irregularity as will reverse the case.</p> <p>3. Judgment.— It is not necessary to recite the facts in the judgment. Hoffman v. Bowen, 17 Tex., 507; Cook v. Hancock, 20 Tex., 3;; Hamilton v. Ward, 4 Tex., 356.</p> <p>4. Motion for new trial.— A motion for new trial on which no .action appears to have been taken, or the attention of the court called to it, will be considered as waived, and the judgment will not be revised for want of testimony to warrant the verdict. Foster v. Smith, 1 Tex., 70; Reynolds v. Williams, id., 312; Hart v. Ware, 8 Tex., 115; Cain v. Mack, 33 Tex., 136; McKean v. Ziller, 9 Tex., 58.</p> <p>5. Parties.—Whether a minor entitled to remainder in property in controversy is or is not a proper party, the defendant will not be permitted to raise the question for the first time on appeal, unless he has been injured by want of necessary parties to the suit. Story’s Eq. PL, 140, 161, 766; Hughes v. Roper, 42 Tex., 125; Herndon v. Bremond, 17 Tex., 434.</p>

<p>Appeal from Falls. Tried below before the Hon. L. 0. Alexander.</p> <p>In December, 1866, J. H. Sparks brought suit against H. N. Dawson to recover a certain tract of land in McLennan county. The suit was based upon allegations to the effect that plaintiff had conveyed to defendant the land in October, 1865, in consideration of a stock of cattle which defendant owned, and that defendant had misrepresented the cattle, as to their number, quality, etc., and the plaintiff had thereby been deceived and defrauded. The defendant denied all the allegations in the petition charging fraud and misrepresentation. He also set up as defense that plaintiff had neglected the cattle during the time he had had them in possession and they were of less value on account of such neglect than when plaintiff received them.. Defendant also set up that after the suit was commenced plaintiff abandoned the cattle on the range, and they had been destroyed or stolen, and that by reason of such abandonment and loss, plaintiff could not recover the land.</p> <p>On 24th of February, 1880, plaintiff’s cause of action is fully stated by his first amended original petition.</p> <p>Plaintiff alleges therein, in substance, that in August, 1865, he was the owner of two tracts of land, contiguous, in McLennan county, containing seven hundred acres of land, three hundred in cultivation — Brazos bottom — and houses, out-houses, etc., etc., of the annual rental value of $5 per acre.</p> <p>That plaintiff Sparks then resided in McLennan county; defendant in Comanche county, one hundred and ten miles distant from plaintiff’s residence.</p> <p>That plaintiff did not knovy defendant until within a day or two of the trade below stated.</p> <p>That defendant represented to plaintiff that defendant was the owner of a stock of cattle — well kept and gentle — consisting of at least eight hundred head, one hundred of which were beeves from four to six years old, eighty of which were beeves three years old — all of which defendant kept at his ranch in Comanche county.</p> <p>That defendant stated that he knew the number of his cattle because he had at two short drives made away from, the home range in the spring of 1865, penned at his ranch five hundred head, and could have easily penned three hundred head more in two days run around the ranch.</p> <p>That he had one hundred and sixty acres of land, on-which he lived.</p> <p>Plaintiff inquired of a neighbor of plaintiff, one Webster, a brother-in-law of defendant’s, as to defendant’s reliability. Webster stated that he would believe what defendant told him.</p> <p>That relying solely on Dawson’s statements, and without any opportunity of knowing anything else about defendant’s cattle, plaintiff traded his place, seven hundred acres of land, for defendant’s ranch and cattle, and the contract was reduced to writing and signed by them, dated August 25, 1865.</p> <p>That this was consummated by mutual conveyances, October 21, 1865.</p> <p>That plaintiff had no opportunity of knowing, either before August 26th or October 21st, anything of the cattle, and that when the trade was consummated in October that the representations were repeated by defendant, and that the whole was done by plaintiff, he relying solely on' defendant’s representations; that all those representations were false and made to deceive.</p> <p>That after the trade plaintiff employed William and Frank Jeffries to take charge of the cattle, who were recommended to plaintiff by defendant.</p> <p>That at the time of trade it was agreed that William Dawson, son of defendant, who was represented by defendant as being his principal stock keeper, was to assist in gathering the stock for plaintiff in the spring of 1866.</p> <p>The plaintiff was absent from early spring until December of 1866, having gone to Mississippi with a drove of horses.</p> <p>That William Dawson went up to gather the stock of cattle in the spring,- and returned after an absence of six weeks, reporting he could only find fourteen of the stock.</p> <p>That plaintiff never knew of the falsity of the defendant’s representations until he learned this while plaintiff was in Mississippi; that he immediately sold his remaining horses at auction, hastened home, and immediately went to defendant and proposed a rescission, tendering back the cattle, ranch, offering to reconvey, and demanding possession of and reconveyance of land and premises conveyed by him to defendant; and stated to defendant he would have nothing more to do with the cattle; that he so informed Jeffries; and never had used any of the cattle and nevermore had anything to do with them; brought his suit, prayed for a rescission, etc.</p> <p>Dawson denied, specially, in his answer, all the charges of fraud; denies that he represented any particular number of cattle or beeves as belonging to the stock; alleges that he told Sparks that he did not know exactly the number of his cattle; told him he kept cattle books, and he thought his books called for about eight hundred head; and while Sparks was writing the contract, he told him to insert the words “eight hundred head,” which was done; alleged that when Sparks was writing the bill of sale in October, 1865, he then told Sparks that his stock book only called for seven hundred and fifty head, as he had ascertained after examination; that as he had represented to him, Sparks, that he thought the books called for eight hundred head, he, Dawson, had bought a small stock of thirty head running in the same range, and had left in the range a yoke of oxen, which he proposed to bill of sale also, in order to make his representation more nearly correct as to what his book called for; that be sold the cattle by the mark and brand, as they run on the range, the number to be ascertained by the book which he kept, and that Sparks so bought them. The answer avers that at the time of the trade Sparks was laboring under the apprehension that the land would be confiscated by .the United States government, and if not confiscated that heavy back taxes would be imposed on the land and collected, and on this account he, Sparks, was anxious to dispose of his land, and in the executory contract, he, Dawson, at the instance of Sparks, became responsible for all back taxes which, might be assessed against the land; and again in October, I860, Sparks inserted the same obligation in the deed which he made to Dawson. The answer avers that this obligation was an important part of the consideration of the contract and understood by the parties; and that Sparks made no complaint of his trade until the lapse of sixteen months, and until all fears of confiscation and back taxes had passed, and until the government was reconstructed. The answer charges that Sparks was moved to institute the suit because of the fact that his fears and apprehensions as to confiscation and taxation were unfounded, and not because of the alleged misrepresentations and fraud.</p> <p>There have been six jury trials of this case, resulting in four mistrials, and two verdicts; one of which was for the defendant, on which a judgment was rendered, and on appeal to the supreme court was reversed and remanded; the other was rendered for the plaintiff, the judgment on which is now sought to be reversed on this appeal.</p>

<p>Appeal from Ellis. Tried below before the Hon. Hat. M. Burford.</p> <p>The statement of the case made by the appellant is adopted as sufficiently correct.</p> <p>On the 24th of January, 1876, Joseph Mulhall and Samuel Scaling, partners under the style of Mulhall & Scaling, parties of the first part, and J. F. Alexander & J. D. Beauchamp, parties of the second pa.rt, entered into a written agreement to submit their dealings with each other, from January 1, 1875, to January 1,1876, to arbitration. Ho suit had been commenced.</p> <p>The first agreement is to the effect that the parties of the first and second parts shall each select one arbitrator, and if the two fail to agree the parties shall select a third, and the decision of a majority, or two, shall be binding. In the same instrument the two arbitrators are named — Thomas McEnnis and A. J. Pippin. And they further agree that, in case the two shall fail to agree, H. H. Campbell shall be the third. And they agree to give bond to abide by, satisfy and perform the award; the bond to be subject to approval of Mark Latimer and deposited with him. It is further agreed that “ all parties to this instrument shall introduce to the arbitrators such testimony as any of them may deem proper and necessary for the adjustment and determination of the matters in controversy.”</p> <p>On the next day, 15th January, 1876, the parties made a supplemental agreement in writing to the effect that H. H. Campbell, the third arbitrator, should sit with the others from the beginning; that the award of any two of them should be binding, and that the same shall be entered up as a judgment of the court at the next term of the district court of Ellis county; and that, in order to give said court jurisdiction, it shall only be necessary for the person or persons in whose favor the award may be made to file in said court this agreement and the award made in pursuance thereof; that all parties to this agreement waive all process and proceedings commonly necessary to give" said court jurisdiction of any matter, and that Cheek, a justice of the peace, should swear the witnesses and arbitrators and take down the testimony.</p> <p>The arbitrators, McEnnis and Campbell, made their award, which, it is claimed, may be construed to be an award in favor of Mulhall & Scaling, and against Alexander & Beau-champ, for §7,300. John L. Cheek certifies that he swore the arbitrators, and that H. H. Campbell and T. F. McEnnis appeared before him and acknowledged their verdict on the 15th da}^ of February, 1876. The award is only signed by McEnnis and Campbell.</p> <p>On the 16fch of February, 1876, these papers were filed in the office of the clerk of the district court of Ellis county, which was the first time that the matter had been brought into court in any form. The district court commenced on the second Monday (8th day) of May, 1876. On the 9th of May, 1876, the following paper was filed in court:</p> <p> </p> <p>“ Mow at this term of the court comes the plaintiff in the above entitled cause, and moves the court to make the award of the arbitrators the judgment of the court.</p> <p>“Aaizi Bradshaw,</p> <p>“Att’y for Plaintiff.”</p> <p>On May 10, 1876, Alexander filed a paper setting up several objections to the award being made a judgment. The first of these objections is, in effect, that he has not been properly brought before the court, and that the court has not acquired jurisdiction of his person nor of the subject-matter; and second, he objects to the want of certainty in the award as to parties; and third, he objects that only two of the three arbitrators appear to have sat in the case.</p> <p>On the 21th of May, 1876, the motion to make the award the judgment of the court was called, and the objections to the jurisdiction, etc., being overruled, the defendants excepted, and then the defendants, Alexander & Beauchamp, offered to file their answer. The court refused to permit the answer to be filed and treated as an answer, but ordered that the same be permitted to be placed on file, and that the award be.made the judgment of the court, notwithstanding the answer, and without permission to defendants to introduce testimony under it. To these rulings and judgment Alexander & Beauchamp excepted, and gave notice of appeal.</p>