Volume 15 — Texas Reports

<p>Appeal from Travis. Suit by Reuben D. Wood against Joseph W. Robertson, commenced February 22nd, 1850, to recover a lot of ground in the city of Austin. Plea of not guilty ; adverse possession as administrator de bonis non of George M. Dolson, for three years under color of title, of part of the lot; adverse possession, as administrator aforesaid, for five years, under deed duly recorded, paying taxes thereon, of same part of the lot; adverse possession, as administrator aforesaid, of same part for ten years. The pleading detailed all facts respecting the title, and showed that both parties claimed under Martin Clark.</p> <p>The evidence was as follows : Plaintiff introduced a deed for the lot, from Martin Clark, of Williamson county, State of Tennessee, to plaintiff, dated October 17th, 1849, recorded in Travis county, June 18th, 1850 ; and proved that he notified the defendant, before commencement of the suit, that he, the plaintiff, was informed that the defendant claimed the property in controversy, as the administrator of George M. Dolson, who held, by purchase or otherwise, from Albert G. Kimball, who contracted with Martin Clark for the purchase thereof on the 14th of January, 1840 ; that plaintiff had purchased from Clark, and that he was ready to make title according to Clark’s contract with Kimball, on payment of the balance of the purchase money, less the amount paid to the Government by Kim-ball and those claiming under him on the original purchase of the lot; and that on refusal to comply with said contract, plaintiff would sue to recover the property. Plaintiff then proved the value of the mesne profits since the commencement of the suit, and rested.</p> <p>The defendant then gave in evidence the certificate of purchase from the Government to R. M. Spicer, dated August 1st, 1839 ; assigned to Martin Clark, January 1st, 1840 ; bond for title, from Clark to Kimball, dated January 14th, 1840. The consideration of the bond was Kimball’s note for the whole of the purchase money, at twelve months, and the condition of the bond was : “Now if the said Clark shall make, or cause to be made, a good and sufficient title to the said described ground, when the above note of two thousand five hundred dollars is paid, then the above obligation to be void, otherwise to remain in full force and effect(This bond was handed to the defendant, on the trial, the same having been in the possession of the plaintiff’s attorney;) deed in fee simple, with general warranty, from Kimball to William Renney, consideration paid ; dated August 8th, 1840 ; recorded August 18th, 1840 ; executory contract of sale by Renney to George M. Dolson and Charles E. King, dated August 18th, 1840 ; reciting the payment of part of the purchase money, and stipulating for the payment of the balance, when title should be made; recorded August 18th, 1840 ; deed from King to Dolson, dated June 12th, 1841, and recorded August 18th, 1841; defendant then proved that he was administrator de bonis non of Dolson ; that Kenney, King, Dolson and Dolson’s administrator, had continuous, uninterrupted possession, claiming the title to the property, openly and notoriously in their own right, from the spring of 1840 to the commencement of this suit; paying the taxes thereon regularly ; that the plaintiff admitted that Clark was aware of the purchase by Kenney from Kimball, and that he knew that Kenney claimed the title in his own right from Kim-ball ; and that Dolson’s administrator paid the last instalment on the whole of said lot, to the Government, on the-day of--, amounting to the sum of--; that said payment prevented the forfeiture of the whole of the lot, and was made for that purpose. It was admitted that Kimball had paid Clark one-half of the purchase money, and it was proved that there was no registry of the title from Spicer to Clark or from Clark to plaintiff, until 1850 ; it was admitted that Clark left the Kepublic in 1840, and never returned.</p> <p>The plaintiff, by way of rebutter, proved by W. S. Oldham, that in the year 1849, Kimball brought to witness the title bond from Clark to Kimball, to consult with him as attorney, with a view of bringing suit upon the bond for a specific performance ; witness declined to state the communications made to him by Kimball; he advised him that he could not maintain his suit; after that time, Kimball proposed to witness to join him in the purchase of Clark’s interest in the lots ; that Kim-ball said he preferred abandoning the contract with Clark to paying the balance due upon the contract, specified in Clark’s bond to him, twelve hundred and fifty dollars and the interest; that he had paid half of the purchase money, and that the other half remained unpaid ; that witness agreed to join him in the purchase, but before they could ascertain Clark’s residence, Kimball went to California; that in 1850 the plaintiff came to Austin, and employed witness as his attorney in relation to the property, and that the bond being in witness’s possession, he furnished defendant’s attorney with it, to be used on the trial.</p> <p>The Court instructed the jury that the possession of Kimball and those claiming -under him, was the possession of Clark; that limitation did not run in their favor; and that if they believed from the evidence that Clark sold the land to the plaintiff, and that the condition of the bond of Kimball had never been complied with, they should find for the plaintiff; to which said ruling the defendant excepted. Verdict and judgment for plaintiff.</p>

This was a suit brought for the settlement of partnership accounts. The parties, by consent, procured an order of Court, appointing an auditor to state the accounts between them. The auditor made his report, consisting of a statement of his conclusions upon the various matters in controversy between the parties, but containing no statement of the several items of which the accounts consisted.

Error from Bexar. Suit by the defendant in error against the plaintiff in error, for divorce, on the ground of cruel treatment.

The Court below, in rendering judgment, took the amount of money, and the description and value of the property, from the petition ; and in respect to the specific property, the judgment was in the ordinary alternative form, for the property or its value.

Suit by John T. Martin, assignee of Moulton, Barker & Heifer, against Daniel Devine and Joseph Devine, merchants trading under the style of Daniel Devine The proof was that Daniel Devine purchased the goods, August 4, 1851, in New York, on a credit of six months ; that in 1852, the plaintiff “ became the owner of the property, notes, “ stock, accounts, effects and assets of the firm of Moulton, “ Barker & Heifer, by purchase, or by arrangement with that “ firmthat the…

Suit by appellee against William Clark and Jackson Clark, for trespass, cutting timber, &c. Judgment by default, with an order for the empanneling of a jury to assess the damages. The entry of judgment was in the usual form, “ came the parties, by their attorneys,” &c.; verdict for the plaintiff for $250, damages.

<p>Where the plaintiff and defendant having formed a partnership in the business of sawing lumber, made a contract in writing, with the town of Bastrop, whereby they acquired the exclusive right to enter the Pinery, belonging to the town tract, for the period of ten years, to eut and saw pine timber, with two saws, in consideration whereof they contracted to pay two hundred and fifty dollars, every six months, and the plaintiff being unable to furnish his share of the capital necessary to commence the business, agreed verbally with the defendant that the latter should furnish the means to start both saws, and that the plaintiff should have a certain time to pay for one of them, and then each one should run one of the saws for his own account, and that if the plaintiff failed to pay in the time stipulated, he relinquished all his rights in the matter, and he did fail, and had no more to do with the business, but several years afterwards brought this suit for an account, &o., it was held that the verbal agreement, being executed, was binding on the plaintiff, and that he could not recover.</p> <p>See this case as to the Statute of Frauds.</p>

<p>Where the parties agreed that the jury might return their verdict to the Clerk during recess, and they returned a defective verdict and dispersed, and after-wards the Court called them together and caused them to supply the defect, it was held there was no error.</p>

Error from Caldwell. Suit by the defendant in error, against the plaintiff in error and another, on their promissory note, payable one day after date, and endorsed to the plaintiff. The suit was commenced in July, 1853; the answer filed October 27th, 1853.

Suit by the appellee against the appellant, on the following instrument, a copy of which was given in the petition: On or before the first day of January next, I promise to James A. Edwards the sum of $1000 (one thousand dollars) for value received of him, with ten per cent, interest from date, this May 16, 1854. ED. A. WILLIAMS.

Error from Bastrop. Suit by James Yeoman, administrator de bonis non of James McLaughlin, deceased, against the plaintiffs in error, on their promissory note for $852 50, dated February 18th, 1854, payable to “ James Yoeman, administrator de bonis non of the estate of James McLaughlin.” Defendant Claiborne answered, that James McLaughlin died in 1837; that at the February Term, 1838, of the County Court of Bastrop county, William McLaughlin administered upon his estate, and…

Suit by appellee against appellant, on a promissory note. Answer filed. Motion for a continuance, first Term, overruled. Judgment for plaintiff.

Suit by the appellee against appellant, for specific performance of a parol contract for the sale of one hundred acres out of a survey of seven hundred and thirty-five, part of the. beadright of William Eroquier, on the Leon River. The plaintiff had paid the purchase money, $62 50, the contract being in 1847, and had, taken possession and made improvements.

Action of trespass to try title, commenced September 18th, 1847, by Jose Maria Salinas against Samuel A. Maverick. The defendant pleaded not guilty, and the Statute of Limitations of three and five years. The plaintiff died, and his legal representative was made a party. The plaintiff proved title in his intestate.

Caldwell. Action by Mortimer T. Dunham and his wife Bathsheba Dunham, as guardians of Emily Best, John Best and Stephen Best, against the appellant, to annul a deed from Margaret Best, deceased, to the appellant, to recover the land embraced therein, being one thousand acres in Caldwell county. The plaintiffs claimed by virtue of a deed of gift from the said Margaret Best, dated September 10th, 1851.

Judgment obtained by tlie appellant’s intestate September 24,1842, against John H. Cocks, in a Justice’s Court, in Galveston county. Suit thereon and judgment recovered by the appellant, in a Justice’s Court, same county, September 2nd, 1852. Execution issued to Travis county. Levied a slave named Stephen ; slave claimed by the appellee ; trial of right of property, in a Justice’s Court in Travis county ; judgment for claimant; certiorari by appellant.

The claim was as follows: “Port of Galveston, Texas, 22d April, 1836. “Exchange for $5,000. “ At four months after date of this first “ of Exchange, (second of same tenor and date unpaid,) please “ pay to the order of J. F. Niles, or sooner, should you be in “funds, the sum of five thousand dollars, for value received by “ the purchase of the steamboat Cayuga, for the Republic of “ Texas, with ten per cent, interest per annum since the 20th “ January last, with or without…

Error from Guadalupe. Suit by defendant in error against the plaintiff in error, on a joint and several promisory note. Judgment by default was rendered jointly against all the plaintiffs in error, to-wit: Bird Saffold, Wm. Saffold, and Sarah B. Herring. The record showed service, duly perfected, on Wm. Saffold and Sarah B. Herring.

Suit by Betsy B. Roan and Turner T. Roan, mother and brother of William H. Roan, and claiming to be the only heirs of said William against James H. Raymond, State Treasurer, William Ryan and Benjamin F. Atkins. The suit was commenced August 10th. 1853, in Travis county. It was alleged that Ryan resided in Fort Bend, and Atkins in Brazoria, to which counties citations for said defendants were issued, and returned executed.

Suit by James Stephen against John Graham, April 20th, 1848, for the specific performance of Graham’s bond to Stephen, dated January 2nd, 1841, for the conveyance of one-half of Graham’s headright league, “ so soon as “ the said James Stephen makes or causes to be made unto me “ a title to a tract of land conveyed to me by a bond, bearing “even date herewith; and warrants and defends the same “ from the claim or claims of all the world.” The bond from ' Graham to Stephen…

Application to the Comity Court by the appellee, a creditor of William M. Eastland, deceased, to •compel the executor of said Eastland, to return an inventory of $2273, which he had received as executor of said Eastland from the State, under the Act of February 9,1850, for the relief of certain persons formerly prisoners of war in Mexico. (Hart. Dig. p. 819.) Eastland was dead at the passage of the Act.

Suit before a Justice of the Peace by the appellee against appellant, for §100 for the services of three French and Spanish buck sheep, to run among one hundred sheep, from the 15th day of February, 1851, until the 15th day of May, 1855. When the Court overruled the motion to dismiss the certiorari, the plaintiff refused to prosecute further, whereupon the defendant asked that the original suit be dismissed, which was ordered accordingly.

The execution was issued from Gonzales county to the Sheriff of Guadalupe county, and the motion was made in the latter county.

Error from Guadalupe. The action was for damages for fraud practiced by Thomas Bracken on Andrew Neill, in this, that the latter, “ being desirous of transmitting money to the “ executor of said deceased, entrusted to one Thomas Bracken, “ who represented himself as one of the heirs of said William “ Bracken deceased, the sum of six hundred dollars to be by “him taken and delivered to John McHenry, the then exeeu- “ tor of said Wm.

Suit by the appellant against T. C. Greenwood, administrator of M. W. Lindsey, and another, on a judgment recovered in the State of Tennessee, May 14, 1854. The judgment was authenticated by the affidavit of the attorney who had conducted the suit for the plaintiff in Tennessee. It was rejected by the administrator in general terms. The transcript, with the affidavit, &c., endorsed, was made a part of the petition.

The deeds' described the lots sold, by reference to the plan as recorded in both the office of the Clerk of the County Court of Bexar County, and the office of the City Surveyor of the city of San Antonio.

The Recognizance of Wardsworth Goode, as principal, and Charles F. Haswell and James Murphy, at Fall Term, 1853, to answer an indictment for betting at faro. September Term, 1854, forfeiture nisi. Scire facias; no return as to Murphy, and defective return of service on the others. Haswell did not answer. Goode answered ; a copy of his answer is given in the third paragraph of the synopsis of this report. Judgment final against Haswell and Goode.

On the 25th of August, 1854, the appellant, as administrator of the estate of B. G. Whitehead, deceased, instituted a suit in the District Court of Guadalupe county, against the appellee, on a promissory note, payable to said Whitehead.

<p>This was a suit to set aside a conveyance of land, on the ground that it was procured by fraud, and without any consideration.</p> <p>It seems that the action for rescisión of contracts or conveyances of lands does not come within the purview of the Statutes relating to the action of trespass to try title, and is consequently not controlled by them.</p>

Guadalupe. Suit by appellant against appellee, commenced in a Justice’s Court, December 16th, 1854, on a promissory note dated December 14th, 1850, payable one day after date. Judgment for plaintiff. Certiorari by defendant. The judgment of the Justice was for $53 ; the bond for certiorari was for $60. The petition for certiorari was sworn before the District Clerk of Guadalupe county.

Suit to Fall Term, 1848, by the appellees against the appellant, for an injunction, and to have the sum of eight hundred dollars entered to their credit on a judgment which had been rendered against them in favor of defendant, Fall Term, 1844.

Suit by appellee against appellant, commenced March 2d, 1845, on a promissory note payable on or before the 1st of March, 1855. The citation was directed to, and served by the Coroner; the defendant moved to set aside the citation and service on the ground, 1st. That it was neither directed to nor executed by any officer known to the law for such purposes. 2d. That it was illegal and void. 3d. That no authority is shown in the Coroner to execute said writ.

Error from Guadalupe. Indictment against Francis Lowe for larceny of a steer, filed Nov. 14th, 1849 ; capias issued May 29th, 1850, for the body of Francis Lowe; returned “ came to hand the 19th August, A. D. 1850, and executed on the 21st day of August, A. D. 1850.” Then followed a bond by B. F. Low, as principal, and the other plaintiffs in error, as sureties, reciting that indictment was pending against the above B. F. Low, &c. &c., for larceny, &c., and conditioned for…

John Rice Jones, then intermarried with Ruth Mary Jones, acquired a league of land as a head-right. On the 21st of March, 1837, he made a contract with Edwin Waller, to pay a certain amount of money on the 1st of February, 1838. On the 5th of September, 1831, Ruth Mary, the wife, died, leaving the present plaintiffs, her children. There was no administration on her estate.

<p>Appeal from Bexar. Action of trespass to try title, by the appellants, as administrators of John W. Smith, against Casimero de la Garza, commenced March 4th, 1852. Answer by defendant, that he is in possession of the following described tract of land (same as in petition) for this that he is the husband of Juliana de la Garza, who is sole heir at law of Refugio de la Garza, late of said county, deceased, who was the owner of the above described land, and further that he is the tenant of Marius Cheusse, the administrator of the estate of Refugio de la Garza; and now comes Marius Cheusse, administrator of the estate of Refugio de la Garza and defends said suit, and says that his intestate claimed and owned the above described tract of land by virtue of a grant from the Government of Spain to the said Refugio de la Garza, sometime previous to the year 1819; defendant further says that the said Refugio de la Garza has held uninterrupted and peaceable possession of the said land since the year 1819, now more than thirty years.</p> <p>The amended answer of Casimero de la Garza and wife, leave of the Court first being had and obtained, in the above entitled cause, respectfully represents, &c., alleging the destruction of the grant to -Refugio de la Garza, by some evil minded person, and praying leave to introduce parol evidence of its existence and contents.</p> <p>There was a second amended answer as follows:</p> <p>In the above entitled cause defendant, for amended answer, leave of the Court first being had and obtained, says, that if the original matters set up in original answer and first amended answer should not be sustained, then plaintiffs ought not to have and maintain their said suit, as to these defendants, to the extent of 640 acres of land to be surveyed in a square form, and to have a front on the San Antonio River and the San Pedro Creek, and to include their improvements, by reason of their settlement, occupation, use, enjoyment and cultivation of the same for ten years consecutively and uninterruptedly immediately preceding the institution of this suit: wherefore they pray accordingly and plead Statute of Limitation of ten years.</p> <p>The plaintiffs proved a patent to John W. Smith, their intestate, dated February 25th, 1842, for the land described in the petition.</p> <p>The defendant proved that Refugio de la Garza came to San antonio in 1819 and took possession of the premises in controversy, and established a rancho there; that he received some sort of a title from the authorities, and continued to reside there until the troubles of 1842, at which time he went to Mexico ; that Casimero de la Garza left at the same-time and went with Refugio de la Garza, and returned in 1843. In the interim Juliana de la Garza remained on the rancho; the rancho was usually held by Casimero de la Garza. Plaintiff excepted to the evidence about a grant to Refugio de la Garza, on the ground that there was no affidavit of its loss, but the objection was overruled. The testimony left it doubtful whether the title was not merely an amparo, but there was evidence to the effect that John W. Smith, the intestate, and others, at the time Gen. Yasques was in San Antonio, came to the house of Refugio de la Garza, in the night time, during the absence of the latter, and carried off his title papers from the trunk where he kept them. The defendant also introduced evidence to the effect that the archives of Bexar were very much scattered and roughly treated in 1835. Refugio de la Garza, being a priest, died without heirs of his body. Juliana, the wife of Casimera, was his only sister. He had one brother, Yicente, who died without issue. The priest and his tenants have had possession of the lands all the time from 1821 to the present; that Juliana, the wife of Casimero, was the sister of the priest; there was a crop of corn grown at the rancho, by Casimero de la Garza, in the year 1841.</p> <p>Plaintiff, rebutting, introduced a witness who testified that he went to Casimero de la Garza in the year 1850 to buy a pecan tree for timber ; that Casimero told him that he had no permission to sell timber off the land ; that it was Mr. Lee’s land; that Mr. Lee had given him permission to live there, and that he was taking care of the premises for him ; he offered to sell witness a dead tree.</p> <p>A single instruction was asked by each party, and refused ; but they are not material to this report.</p> <p>Verdict, “ We, the jury, find for the defendant six hundred and forty acres including his homestead.” Judgment quieting “ the defendants, Casimero de la Garza and wife,” in the title and possession of 640 acres of land including their improvements ; such survey to have such front on the San Antonio river as by law is allowed to a survey of 640 acres on streams of the average width of thirty feet, and to extend back within parallel lines so as to include the quantity of 640 acres; appointing three commissioners to make the survey. Survey returned. Motion to set the same aside, on the ground that too much front was allowed on the river. Overruled. No statement of the facts on said motion.</p>

<p>Error from Washington.</p>

<p>Appeal from Bastrop. The suit was commenced on the 6th of March, 1855. The facts appear in the Opinion.</p>

Suit by appellee against appellant and others, in their individual capacity, upon a note of the following purport: “ Twelve months after date, we, the trustees of Chappell “ Hill College, promise to pay T. J. Jackson or order, three “ hundred dollars.” (Signed by eight persons.) Four of the defendants pleaded that Chappell Hill College is, and was at the date of the note, a body corporate and politic, capable of contracting, suing and being sued ; that defendants, at the…

The appellants, being judgment creditors of the defendant, John Shearn, instituted this suit for the subjection of Shearn’s homestead to the satisfaction of three several judgments, alleging first, that it was free from any constitutional exemption because, at and before the time of Shearn’s purchasing the town lots and commencing the building of his homestead, he was largely indebted, and in failing circumstances, and in order to cheat and defraud his creditors and hinder…

Suit by the appellant against Austin & Bertrand on a draft drawn by the latter, and protested for non-payment. Bertrand pleaded that the draft was given by Austin in payment of his individual debt, as one of the firm of Austin & Edrington, of which the plaintiff had notice.

The petition alleged “ that Abigail “ Fokes, a resident of the said county of Milam, on the- “ day of-, 1835, entered into a contract with said Steel, “ wherein the said Abigail, in consideration that the said Steel “ would clear out her headright league of land, to which she 11 was entitled as a colonist in the Nashville Colony, pay all “ the Government dues and expenses, and obtain a grant or “ title to the same, covenanted and agreed to convey to said “ Steel, his heirs…

Suit by the appellee, administrator of Neibling, commenced September 12th, 1853, against the appellant, to revive a judgment recovered by Neibling on the 7th May, 1845, in the District Court, against the defendant and Josiah J. Crosby, since deceased.

Trial of the right of property, levied on by execution in favor of the appellees against William T. Austin and James E. Edrington, and… Held: or at this time controlled the remaining third or balance of said notes; that if his brother, E. H. Edrington, was garnisheed by these plaintiffs, he, E. H. Edrington, could not swear that he was indebted to witness, J. F. Edrington, at this time; that at the time he, the witness, sold the goods levied on to E. H. Edrington, he told…

Charles V. Shafer, the appellee, sued Thomas G. McGehee, the appellant, to Fall Term, 18511 for assault and battery, and recovered judgment for $1,000, which judgment was affirmed, on appeal, at Austin, (November,) 1852. November 8th, 1851, the said Shafer sued Herbert S. Harvey for an assault and battery.

Error from Travis. Action of trespass to try title to lot number two in block number eighty-three, in the city of Austin, by George Hancock against Nancy Metz. Intervention by the administrators of Benjamin S. Grayson.

Action of trespass to try title, by Elizabeth Coe, executrix of P. H. Coe, against Reuben Stramler. The plaintiff gave in evidence a certified copy of a bond for title from James Price to P. H. Coe, dated September 17tht 1835, for the land in controversy.

On. the 4th day of June, 1850, in the county of Fayette, in this State, Sarah Ann Burnham, widow of Alfred Burnham, in consideration of two hundred and fifty dollars, acknowledged to have been received, conveyed by writing under seal, to Sarah Burnham, of the county and State aforesaid, “ all and singular, my right, title, interest, “ claims or demands, in esse or in expectancy, as widow, or sur- “ viving wife, of the said Alfred Burnham, deceased.” On the 22d May, 1852, the…

Appeal and Error from Guadalupe. The marriage bond of Frederick Roe and Sarah Grogan was executed by them before an Alcalde at Gonzales in November, 1832, and was filed by him in his oEce, among the archives of the municipality of Gonzales, and is now on file in the oEce of the Clerk of the County Court of Gonzales county.

Error from Gonzales. The transcript showed that on the 28th of October there was a motion filed by the defendant, to quash the citation, because the names of the plaintiffs were “ not given in said writ the same as in the petition, and are not fully set forth.” On the 31st of same month, the plaintiffs moved that the Clerk be permitted to amend the citation by stating therein the full names of the plaintiffs. The first motion was overruled.

Error from Gonzales. Suit by the defendants in error against the plaintiffs in error, on the promissory note of the former, payable to the latter at a house in “ New Orleans, La.” The note was dated at Philadelphia, and was made part of the petition. The plaintiffs described themselves as merchants and partners, doing business in “ the city of Philadelphia and State of Pennsylvania.” There were no further allegations as to the place where the note was made or payable.

Indictment for betting at a gaming-bank called Faro, in a house in the city of Austin, known as. Bobinson's Grocery, within the county, Ac.

Error from Williamson. Suit by W. H. Wheat and his wife Frances, against W. E. Owen and his wife Eliza, to recover one-half of the licadright of Sherwood J. Dover. The facts were as follows : In the year 1883, Sherwood J. Dover, then a widower with one child, the defendant Eliza, intermarried with the plaintiff Frances, in the State of Kentuckey, and. during the same or the succeeding year, emigrated to Texas, bringing with him his wife and child aforesaid.

Error from Leona. Suit by L. J. Latham against Matthew Taylor and his trusteess in bankruptcy, to set aside a conveyance by the said Taylor to said Trustees, so far as a certain lot of ground in the town of Navarro was concerned, on the ground that the plaintiff had purchased the same under execution against said Taylor, before the proceedings in bankruptcy attached.

Suit for partition, commenced March 31st, 1854, by appellant against appellees. The purchase from Wallace by Wm, R. Redding was in 1839, and the subsequent arrangement whereby the legal title was placed in the name of Robert L. Redding, was made three or four years after-wards. A jury was waived.

Indictment, as overseer of roads, for failure to perform his duty. The indictment alleged that the defendant was duly elected overseer of Road Precinct No. One, of a certain road leading from Austin by certain places to the county line, and took upon himself the discharge of his duties as such, and then charged that he had failed to keep the roads, bridges and causeways, within his said Precint, clear and in good order.

Indictment for playing cards “ at “ a certain outhouse to which people then and there resorted, “ said outhouse being then and there a public place.” The testimony was that witness saw defendant in September, 1854, playing cards for money, in an unoccupied dwelling house, situated in a secluded part of the town of Wheelock ; some six persons were present; this was the only time that witness knew of card playing in that house; witness never was there before; went to see W. H.…

Indictment for playing cards for money “ at a certain out-house in the town of Wheelock, in said county, to which people then and there resorted.” The evidence was: first witness saw defendant playing cards for money, in a house in the town of Wheelock, in the summer of 1854; one room of the house was occupied as a sleeping apartment by A. J. Street; he had frequently been to the house to see Street, and played smut in the house; he had seen persons frequently going there ;…

Indictment for playing cards for money in an out-liouse where people resort. The evidence was the same as in the two preceding cases, except in the particular mentioned in the Opinion, as to the testimony of the owner of the house.

<p>Where there is an affidavit for a continuance purporting to be filed on the eve of trial, but no entry showing that it was called to the attention of the Court, an assignment of error that the Court erred in overruling the application for a continuance, cannot be considered.</p>

<p>Where the plaintiff sues for judgment on a note and a foreclosure of a mortgage made to secure its payment, the defendant may demur to the prayer for foreclosure, on grounds apparent in the petition; and where this was done, and the entry was that the demurrer was overruled, and, the case being submitted without a jury, judgment was rendered in favor of the plaintiff, except in the particular of the foreclosure objected to by the demurrer, it was considered, that the demurrer was, in so far, virtually sustained.</p> <p>The fact that the mortgage embraces a species of property not subject to foreclosure by sale under judicial process, and that all is embraced under the same prayer for foreclosure, is no reason why the property which is not exempted, should not be sold in satisfaction of the decree.</p> <p>The fact that a mortgage contains a power to sell, is no objection to a suit on the note or to a prayer for foreclosure of the mortgage.</p>

<p>Where the plaintiff sued the defendant for trespass in taking a horse, of the value of one hundred dollars, the property of the plaintiff, and converting it to his own use, and the defendant pleaded in abatemeat that the horse was not worth one hundred dollars, that the defendant was not damaged one hundred dollars, but that he had fraudulently laid his damages at that amount to give the Court jurisdiction, there being no demurrer to the plea, the Court caused the same to be submitted to the jury with the plea of general denial, to which the defendant excepted ; Held, there was no error:</p> <p>"Where a party moves for a new trial, on the ground of newly discovered evidence, his affidavit should exclude the supposition that the evidence would have been discovered by due diligence in the preparation of his case for trial.</p>

<p>Where the Court commenced on the 6th of November, 1854, and the petition was filed on the 9th, and the answer was filed on same day, and there was judgment by default, the date of which did not appear, from which the defendant prosecuted this writ of error, the judgment was affirmed, the presumption being that the default was taken after the fourth day of the Term and that the answer was withdrawn at the time of the entry of judgment by default, or that the defendant failed to bring his answer to the attention of the Court, in either of which cases he should have moved the Court during the Term to correct the mistake.</p>

<p>Where the husband and wife emigrated to Texas in January, 1833, and the wife died in July, 1834, leaving two children by her said husband, and title was extended to the husband for a league of land as the head of a family in 1885, and it further appeared that the husband had selected the land before the wife’s death, but that the extension of the title was delayed by the refusal of the Empresario to assent to it, he claiming the land as premium land, it was held that the land was not community property, and that the heirs of the wife were therefore not entitled.</p>

Trial of the right of property in two buggies and five horses, attached as the property of F. M. Chapman at the suit of the appellee, and claimed by the appellant, the wife of the said F. M. Chapman. The Sheriff appraised the property in bulk at $425, and the appellant gave bond, with sureties, in the usual form, without being joined or authorized by her husband.

It appeared from the plaintiff’s petition that he claimed as the assignee of a former wife of Joseph D. Clements, whom he abandoned in Ohio. The petition alleged no divorce, and the second wife had full notice, &c. A demurrer was sustained to the plaintiff’s petition. The other facts appear from the Opinion.

Sequestration— delivery, bond by the defendant; judgment for the plaintiffs against the defendant and his sureties. Appeal by the defendant alone, with the sureties in the delivery bond, as sureties in the appeal bond, and one other. Approved by the Clerk.

Suit by appellee against appellant on a promissory note alleged to have been made by the defendant's intestate, Richard Parr, and to have been lost by the plaintiff.

This was a suit on two promissory notes for about $3,000 with a prayer for the enforcement of a lien to secure the same on a certain steamboat. The defendant pleaded payment, and in reconvention. Verdict for the defendant for $669 59. Motion for a new trial on grounds which appear in the Opinion.

Error from Gonzales. The writ of error bond was payable to “ the said C. S. Brown or his legal representatives,” approved March 12,1855. Letters testamentary were not issued on Brown’s estate, until March 27,1855, as appeared by certificate on file in this Court.

<p>, Where papers, part of the records of the same Court, are offered in evidence, their production as such by the Clerk is sufficient prima facie proof of their authentieity.</p> <p>It is not necessary for a party to obtain transcripts of original papers and entries in same Court, but be may introduce the originals in evidence.</p> <p>It is a well established principle, that two deeds or writings, executed at the same time, between the same parties, and in reference to the same subject matter, are to be taken as parts of the same contract, and as forming one entire agreement.</p> <p>Where part of the consideration of the conveyance of certain negroes was, that the vendee should pay all just debts then owing by the vendor, if not barred by the Statute of Limitations at the time said debts or demands might be presented for payment, it was held that a trust was thereby created in favor of all persons to whom the vendor was then indebted, whether the debts were then due or not, which they might enforce against the vendee, so long as they did not permit their claims to become barred by the Statute of Limitations against the vendor; and this too whether they had or Md not notice of the trust at the time 16 was created, at least if not in the intermediate time revoked by the vendor.</p>

<p>Where adjoining proprietors not being able to find the true division line between them, agree verbally upon a certain line, it seems that subsequent purchasers without notice would be bound by such agreement.</p> <p>As between adjoining proprietors possession by one up to a certain line, by improvements, is notice to a purchaser from the-other, of the extent of the claim of the former, and of any verbal agreement of previous owners by which such line was made the division line.</p> <p>A possessor in good faith is one who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested by any person claiming a better right; and it was intimated in Sartain v. Hamilton, (12 Tex. R. 219,) that the rule ought, in a proper case, to be extended further in support of the right to recover compensation for improvements made in good faith.</p>

<p>Appeal from Travis. Indictment for permitting a banking game to be exhibited in the defendant’s house. The proof was that the bank was exhibited in the defendant’s house, where he retailed spiritous liquors, and that the defendant knew the fact and did not attempt to stop it. The Court instructed •the jury fully on the case, and among others, instructed them in the language of the fourth paragraph of the synopsis of this report. The new evidence to be introduced at a new trial was to the effect that at the times stated by the witnesses for the State, the defendant was absent from the county.</p>

After the allegation of the petitioner's belief as to the cause of his mistake, there was a parenthesis as follows : (though he cannot state this point with certainty, said copy being lost.) The petition contained an averment that the account sued on had no existence in justice, equity or law.

<p>Appeal from Gonzales. Indictment for exhibiting a gaming table.</p>

<p>Appeal from Williamson.</p>

<p>Appeal from Travis.</p>

<p>Appeal from Brazos.</p>

The facts of the case, so far as they appear of record, are these: The plaintiff and defendant were candidates for the office of District Clerk of Bexar county at the August election, 1854. Carolan received the certificate of election i McDonald contested within the time prescribed by law. The trial of the contest was postponed until January, 1855.

<p>Appeal from Bexar.</p>

This was a proceeding for partition commenced in the County Court, by the appellant, who claimed, by sundry mesne conveyances from three of the heirs of Daniel Robertson, one-half of said Robertson’s headright league.

<p>Where there was no endorsement on the petition, that the suit was brought as well to try the title as for damages, and the plaintiff alleged combination among the defendants, and prayed that he be quieted in his title, that the clouds imposed by defendants’ pretended titles be removed, &c., and the defendants answered jointly pleading not guilty, and special pleas of title, &c., it was held that the defendants could not afterwards be permitted to sever. Special , Court.</p> <p>Where it is evident from all the facts attending a case, that by the ruling of the Court in the progress of the trial, a party was cut off from trying his cause on the merits, or deprived of any other right, though in strictness the ruling may have been correct, yet, if it is made to appear that the default of the party was not inexcusable, and he presents a prima facie case of merits, he ought to be allowed a new trial. Special Court.</p>

The commission required the garnishee to be caused to come before the officer to answer under oath, as garnishee as aforesaid what he is indebted to J. W* McCown, Sr., or what effects and credits there are of the said J. W. McCown, Sr., in his hands.

<p>Appeal from Bexar. The first page of the instrument was written on paper stamped for the year 1821 only; the balance • was stamped for the years 1832 and 1833. The date of the instrument was 1833.</p>

<p>Appeal from Caldwell. TMs suit was for lots in the town of Lockhart, which had been sold at Sheriff sale, under exeeution from a Justice’s Court, against the appellee, and which had been bought by appellant and others under whom he claimed. The appellee was plaintiff below. A jury was waived. The power of attorney from Silvan read thus, “ for me “ and in my name to sell and convey, rent or lease all real “ estate belonging to me in aforesaid county, which will appear “ by the records of said county, also to sue and be sued, plead “ and be impleaded, collect debts, pay demands and receipt for “ the same, hereby ratifying whatever my said attorney shall “ lawfully do in the premises.”</p> <p>The return on the execution-was, “executed by levying on “ nine town lots in the town of Lockhart, on the 3rd day of “ December, 1850, as the property of the said Silvan. G. H. “Steiner, Sheriff. Beturned satisfied, January 25th, 1851, “ G-. H. Steiner, Sheriff, C. C.” “ On the 31st day of May, “ 1851, appeared G-. H. Steiner, and, upon motion to the Court, “ obtained leave to amend his return upon tlie within execution, “ as follows, to-wit: Satisfied the within by selling, as the law “ requires, the within town property in Lockhart, upon the 7th “day of January, 1851, lots No. 3 and 4, in block No. 13, for “ $25, lots No. 4, 5 and 6 in block No. 8, for $15, to W. B. “ Coffee ; lots No. 1, 5 and 6 in block No. 23, for $76, to Pres. “ Maulding and W. B. Coffee. G-. H. Steiner, Sheriff.”</p> <p>“I certify that upon the date above mentioned, in open, “ Court, I granted GL H. Steiner, Sheriff C. C., to amend the “ within fi. fa. as above. Witness my hand officially this 31st “May, 1851, S. B. Gray, J. P. C. C ”</p> <p>There was no evidence as to the terms of the advertisement. The deed recited a levy on the lots, describing them, particularly, and stating that they were the same levied on by virtue of the execution recited, on the day of the date of the levy indorsed, and that they were duly advertised.</p>

<p>Appeal from Ellis.</p>

Suit by the appellants against the appellees to recover a tract of land. Answer setting up title in the defendants by purchase under an order of the Probate Court, obtained for the sale of said land, by the guardian of the plaintiffs. Replication that the order of sale was void, for want of jurisdiction in the Court, for want of service of citation on the plaintiffs, and for fraud on the part of the guardian and the purchaser at the sale.

Error from Fayette. John F. Berry (the father of plaintiff) died in Colorado county, leaving a widow and two children, James and John. He also left a large estate, amongst which was a league of land situated in Fayette county, originally granted to said Berry.

<p>Where the defendant went into the possession of the land, not knowing who was the owner, and, hearing that the plaintiffs were the owners, expressed a willingness to give a dollar an acre for a portion of the land, but subsequently told plaintiffs’ agent that he would not purchase from plaintiffs, but would hold the land as administrator of a third person, it was held that the evidence failed to prove the relation of landlord and tenant between the plaintiffs and defendants.</p> <p>Where an administrator is sued by a stranger for the recovery of land, proof of title in his intestate is a good defence, although the administration should be void.</p>

Action of trespass to try title, by the appellant against the appellee. The case was submitted to the Court, upon the following statement of facts: The plaintiff’s certificates and field notes are as described in his petition; that is to say, the certificates are genuine, and field notes thereof recorded as required by law.

The appellants, who were plaintiffs below, had leased certain premises to the defendant, under mutual stipulations as to rent, service, improvements, &c. A dispute having arisen as to the terms of settlement, they entered into a stipulation to submit the same to two arbitrators named, and handed the papers to the arbitrators, telling them to take the papers and do what was right. Neither party proposed to offer testimony to the arbitrators.

Action of trespass to try title, by appellant against appellee.

These suits were commenced April 27th, 1852. The proceedings which eventuated in the sale to Zambrano, were as follows: Petition by Fernandez Veramendi, Syndic Procurador of San Antonio de Bexar, June 3rd, 1808, (“ in the discharge of one of the sacred duties imposed “ upon him by Ms office, in promoting all that may concern the “ improvement and aspect of the Town, the repairing of the “ public works wMch are fast going to decay, and the finding “ of the means to defray the…

This was a suit for specific performance, commenced August 23rd, 1852.

The nature of this suit, and the points made are sufficiently apparent from the Opinion. A full statement would exceed the limit assignable to any one ease. The transcript contained two hundred and forty-five pages of foolscap, ninety-three of which were made up of the statement of facts. From the manner in which the case is disposed of, a partial statement would be improper.

<p>Appeal from Bexar.</p>

It appeared from the statement of facts that a witness for the defendant testified, without apparent objection, that Joseph Jones kept possession of the property until he sold it to Thomas Glascock; that Glascock sold it to H. Y. Allen; that Allen died in 1841 or 1842, and Mark M. Rogers, as his administrator, sold the property to William S. Holton, who took possession in 1842.

<p>Appeal from Williamson. A statement of tMs case will be found in 11 Tex. R. 2.</p>

In the year 1838 Walker Wilson, the plaintiff in the Court below, conveyed the land in controversy in this suit, to W. B. Goodman. On the 8th of September, 1846, Goodman executed a mortgage upon the land, to Isaac Applewhite, to secure the payment of said Goodman’s note for $100, payable to Applewhite, at six months. At January-Term, 1850, of the Probate Court of Travis county, Josiah Fisk obtained letters of administration on the estate of said Goodman.

The attachment had been quashed on account of a defect in the affidavit. That was stated by the counsel of the appellant, to be the ground on which the demurrer to the plea in reconvention was sustained.

<p>Where the plaintiff sued as assignee of an account, by virtue of an assignment of a schedule of debts in which the amount sued for was stated as a single item, it was held that the plaintiff might show that the amount was a balance after credits claimed by defendant, in order to identify it with the account sued on.</p> <p>The recording of instruments which are not required or affirmatively permitted by law to be recorded, is not notice.</p> <p>See this case for what is said about the manner of availing oneself of certain defences.</p> <p>Where a witness testified that he had been salesman and book-keeper of the party for a certain time during the currency of the account; that he sold many of the articles charged during that time, and saw them delivered; that he believed the mercantile books of the party to have been kept correctly during said time; that he posted the books from the time he commenced until the party quit business, or had them posted under his supervision ; that he knew nothing of the correctness of the charges in the day-book after he left; that the books produced in Court are the books of the party, referred to by witness, it was held that the books were sufficiently proved for the time witness was book-keeper and salesman, but that for the subsequent time they were not sufficiently proved.</p>

<p>See this case for circumstances under which it was held that a note, which had been indorsed as collateral security for precedent indebtedness by the payee to the indorsee, after it fell due, was not subject to a plea of failure of consideration by the maker.</p>

<p>Error from Washington.</p>

<p>Appeal from Guadalupe.</p>

Suit by appellee against appellant for damages, for wrongfully castrating a stallion, the property of the plaintiff, by reason whereof the stallion died, &c. Answer, denying that the castration caused the stalliou’s death, and alleging that he was very vicious and mischievous, that the plaintiff knowing the fact, permitted him to run at large, doing great injury to the stock of the defendant and other persons, off the premises of the plaintiff, by kicking, biting and…

The notes sued on were dated May 6th, 1839, payable four months after date. The defendant's testator, William Milliean, left a will, which was probated January 3rd, 1844, in which he ordered his executrix to sell certain lands, without order of Court, and pay all his just debts. The notes were presented to the executrix and allowed on the 12th of June, 1844.

Error from Fayette. Suit by the plaintiff in error against the defendants in error on a judgment of the Circuit Court of' Washington county, in the State of Missouri.

The conveyance from Gillon to Bateman, recited that the bond of the former, to Mathews and McKean, was dated in 1831, and was for all of the league except 1300 acres, and was in consideration of their paying all the fees and expenses on said league. In 1842, Bateman conveyed the lower half of the league to Mathews and McKean. One of the plaintiffs was the daughter of Gillon by Barbara, who was his wife at the date of the grant, and who was the mother of the other plaintiffs.

It did not appear that a new bond was either ordered or filed at the extension of Feb. 25th, 1839. In the deed from Oliver Jones to McFaddin, the date of the petition for an order of sale was described as the 22nd of Oct., 1840, but the petition was copied at length and purported to conclude with a date in figures, as follows ; “ Washington, Oct. 22nd, 1842.” The deed recited that the sale was made in pursuance of said order, on the 3rd of Dec., 1840.

Suit, March 25th, 1854, by the •appellee against the appellant on the following state of facts : Evans being a land locator, undertook to locate Hardeman’s headright for a league and labor and procure patent therefor, in consideration whereof Hardeman was to convey Evans one half of the league. Evans selected the location on the Yegua in Washington county. Hardeman was present when the surveys were made. Two surveys were made. This was in 1848.

<p>Where the wife refused to join in the sale of the homestead, whereupon the husband agreed that she should have one of the notes for the purchase money if she would join in the sale, and one of the notes was made payable to the wife and delivered to her, and the husband afterwards acquired another homestead, and occupied it for more than a year, although the wife did not,—the purchaser, the promissor in the note, being garnisheed at the suit of a creditor of the husband on a community debt, and all the parties being before the Court, it was held that the proceeds or the note made as aforesaid to the wife, were liable to the claim of the creditor. It seems that if a new homestead had not been acquired, the decision might have been otherwise.</p>

This was a case of trespass to try title, brought by appellee against appellants, to recover the possession of certain land on the Medina River. Appellee had located said land with his own certificate in 1838 ; (said certificate was a donation for a wound received at Goliad,) and procured a patent on the 14th December, 1850. Appellants claimed the land by virtue of Sheriff’s deed upon a judgment rendered in Jackson County against Samuel McCulloch, Sr., appellee’s father.

The agreement to run the race was as follows: We the undersigned, subscribers, agree to run a match race, for one thousand dollars aside, mile heats: that is, five hundred cash, and five hundred in American horses ; to come off on the 29th of July, 1850, over the Bastrop course, Texas, between Messrs. Samuel Wilson and Thomas A Moore's bay horse, Albert Gallatin, and Mr. J. A. Lorane’s brown mare, Promise, by Red Bill, dam Ann Harper by Imp Lasborough, with light weights.

<p>Appeal from Bexar.</p>

<p>Appeal from Gonzales.</p>

This was a suit by the appellant against the appellee, for a half lot in Austin City, and to cancel defendant’s title to the same.

Motion to strike from the bill of costs an item of §45, “ for final record.” No final record had been made. There was an order of Court requiring a final record to be kept in all cases, and allowing the Clerk fifteen cents for every hundred words. The motion was overruled.

Error from Navarro. The citation against Bartlett was returned : “ Received 18th January, 1854, and executed, Feb. 1st, 1854, by a certified of this writ and copy of petition, Nat. Henderson, Shff. N. 0. by Geo. L. Williams Deputy. Judgment by default.

It appeared from the testimony that Meyer and his wife were living together at the date of the suit and trial, in the house which fell to Meyer in the division between him and the defendant; and the property in controversy in this suit was the house which fell to the defendant, in said division.

<p>Appeal from Gonzales.</p>

<p>Appeal from Gonzales,, It appeared from a bill of exceptions, that the Court ruled out the bond, when offered in evidence by the plaintiff, on the ground that it was necessary for him first to prove that the alteration had not been made, as alleged by the defendants.</p>

This was a suit by the appellee, as administrator of the estate of William Pettus, deceased, against the appellant, on á promissory note and'mortgage given to secure the purchase money for land sold the defendant by the plaintiff at administrator’s sale. The defence was failure of consideration and fraud in the sale.

This suit was commenced August 20th, 1854, and was tried Oct. 20th, 1854; Johns was made a dedendant. The persons entitled under the Clark certificate were not made parties. The plaintiff’s location was made Sept. 1st, 1853.

<p>Appeal from Bexar.</p>

<p>Appeal from Bexar.</p>

Suit by tbe appellants, as trustees of the Texas Emigration and Land Company, praying an injunction against Stephen Crosby, Commissioner of the General Land Office, to restrain him from issuing patents to persons generally, who had made locations within the limits of the colony of said company, and particularly from patenting the locations of Catlett and Johnson, who were also made defendants.— They also prayed for a mandamus to compel the Commissioner to issue patents to…

There was no allusion to his power of attorney from the heirs, by Flores, either in his petition for letters or in the proceedings for sale, or in the deed.

Glasscock sold part of a lot to Moore, who gave his note for five hundred dollars as part payment. Glasscock indorsed this note to Raymond in blank. Before any part of it was paid, Moore reconveyed the lot to Glass-cock and Blakey in April, 1854. Shortly after this Glasscock paid three- hundred dollars on the note. Baymand brought suit for the balance, praying the foreclosure of the vendor’s lien in his behalf and for judgment against Glasscock and Moore for his debt.

<p>Appeal from Fayette.</p>

<p>Appeal from Guadalupe.</p>

<p>In a salt on promissory notes an.l an account, an affidavit that the áefendanb is indebted to the plaintiff, “ in the several sums of money mentioned in the petition,” is a substantial compliance with the Statute which requires'the affidavit for attachment to state the sura due, and with the Statute which provides that no writ of quia timet, attachment &o., shall be issued, unless the party applying for such writ shall first make affidavit, in writing, of the truth of the matter set forth in his or her petition.</p> <p>A return of attachment, executed “ by levying the within attachment in presence “ of-John B. Costa and A. B. McGill on lots No. 3,” <&o., is sufficient, under the Statute, which requires the officer to declare in the presence of ode or more oredible witnesses, that he attaches the property.</p>

<p>The testimony of the beneficiary of a resulting trust in lands* who has conveyed his interest by quit claim only, is competent evidence for the plaintiff in a suit by the vendee against the trustee, or his representatives, to establish the trust.</p> <p>The Statute of 1840 concerning frauds and fraudulent conveyances has 10 application to contracts made before its passage.</p> <p>Where A took a transfer of a land certificate to B in 1887, upon agreement with the latter that he should have the same located and patented and then re-oonvey one half the land to A ; and the patent was not obtained until ^.847 ; and B acknowledged the trust in 1848, and the first adverse act denoting Ijostility to the claim of A, which appeared in the record, was the sale of the land by B’s administrator on the 5th of September, 1852, and this suit was brought, to enforce the trnst, on the 2nd of December, thereafter, before the paymjent of the purchase money, it was held that this was not a proper case for the application . of the doctrine that Courts of equity will not give their aid to enforce stale claims or demands. |</p> <p>It seems that mere lapse of time, without proof of adverse claim, will 'not bar a . suit to enforce a parol or resulting trust, short of ten years, to be computed from the earliest date at which it could have been enforced by suit. |</p>

Indictment for an assault with intent to kill. The language of the indictment will be found in the synopsis. The defendant moved to quash on the ground, 1st, That the said indictment does not set forth the manner im which the pistol in said indictment mentioned, was used or attempted to be used. 2nd, That in said indictment the intent to kill is vaguely alleged. Motion sustained.

Error from Travis. This was an application for mandamus to compel the Auditor and Comptroller to audit and adjust the claim of Anson Jones for about $10,000 ; the same being his salary for that portion of his term of office, as President of the late Republic of Texas, which had not expired at the date of the inauguration of the first Governor of the now State of Texas.

<p>Appeal from Travis.</p>

The indictment was in the language of the Statute, but did not contain any averment of the ownership of the animal, or that the owner was unknown. Motion to quash ; sustained.

<p>Appeal from Milam.</p>

After the decree of the Supreme Court of April 8th, 1848, in the suit of the administrator of Empresario S. C. Robertson against Sam Houston, President, which will be found in 2 Texas, 35, and 3 Id. 374, John H. Herndon located a block of five leagues on the Brazos River, which was included in the list of premium lands claimed by Robertson’s administrator in that suit.

Action of trespass to try title, brought by Edward A. Pearson, administrator de bonis non of Albert Silsbee, against the appellant, for one third of a league of land,, situated in Travis county. Petition filed May 2nd, 1853. Defendant, besides claiming the land as his own property, pleaded: the Statute of limitations of three years, and suggested valuable improvements in good faith. Intervention hy the heirs of Silsbee ; jury waived. Judgment for plaintiff.