Volume 245 — South Western Reporter

<p>1. New trial <&wkey;>455 — Motions for new trial to be determined at term at which motion made.</p> <p>Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 2025, court is without authority to determine a motion for new trial at a term subsequent to that during which motion is made.</p> <p>2. Appeal and error <&wkey;387(2) — Bond held not filed in time.</p> <p>Where final judgment was January 8, an appeal bond filed on March 20 was not filed in time to confer jurisdiction upon the appellate court under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2084.</p> <p>&wkey;>For other, cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>Appeal from! District Court, Harris County; W. E. Monteith, Judge.</p> <p>Action by John Weiner, trustee, and others against James Weiner. From! an order granting a temporary injunction, defendant appeals.</p>

<p>1. Homestead <&wkey;l8l (3) — Finding that homestead was abandoned held warranted by evidence.</p> <p>In trespass to .try title, finding that plaintiffs had abandoned their homestead in the land in question held, supported by evidence.</p> <p>2. Homestead <&wkey;129(1) — Innocent purchasers took title freed from claim of homestead.</p> <p>Purchasers from grantee of absolute deed, even if it was intended as a mortgage, took full title, where they had no notice of the arrangement or of homestead claim of the grantor.</p> <p>3. Homestead &wkey;129(1) — Continued residence of grantor in premises held not notice of homestead.</p> <p>Where conveyance expressly renounced homestead claim to the land, held, that grantor’s continued residence on the. land was not notice sufficing to put purchasers on such inquiry as to his homestead claim as would have led to disclosure of such claim if pursued; there being evidence that the grantor informed intending purchasers-that his home was elsewhere, and made no homestead claim.</p> <p>®=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Specific performance <&wkey;19 — Contract to which plaintiff not a party not enforceable.</p> <p>A contract by landowners giving a named person the sale of certain land for 80 days, and providing that, if such person inside of that time procured a buyer, the owners would give 90 days after the signing of the option for inspection and examination, such party to pay the owner $100 as earnest money, which was to be deducted from said purchase price if sale was closed, otherwise to be forfeited, and providing for a commission of 5 per cent, to be paid to such person as broker, could not be specifically enforced by a purchaser thereunder.</p> <p>2. Specific performance &wkey;>29(2)— Description in contract for sale of land held insufficient - to authorize remedy.</p> <p>A contract for the sale of land, dec .-ribing it as “about 300 acres of land on the west side of the Erelsburg road, and said land being in the Zimmerscheidt survey,” held not subject to specific performance because of insufficiency of description; it not disclosing in what county or state the land was located.</p> <p><&wkey;For other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes</p>

<p>1. Master and servant <&wkey;>69 — Federal act does not take away right of individual employee to resort.to courts.</p> <p>In the absence of a request to refer a dispute to the Railroad Board of Labor Adjustment as provided by Transportation Act Feb. 28, 1920, tit. 3, §§ 301-303, 307, the act does not take away the right of individual employee to first resort to the courts to adjudicate his rights.</p> <p>2. Master and servant &wkey;>69 — To abate railroad employee’s suit claim must be within jurisdiction of boards named by federal act.</p> <p>.To abate a suit by an employee against a railroad, it should be alleged and proven that a request to refer the dispute to the Railroad Board of Labor Adjustment was made as provided by Transportation Act Feb. 28, 1929, tit. 3. §§ 301-393, 307, and that the claim was within the jurisdiction of the boards named in the act.</p> <p>3. Arbitration and award i&wkey;>l — Party may waive right to resort to courts.</p> <p>Where a party is to be deprived of his right to resort to the courts, it should appear that i he has by agreement waived that right or conj sented that other instrumentalities shall be used to determine it.</p> <p>4. Master and servant <&wkey;43 — Reasonable timo of hiring question of fact.</p> <p>Where it is alleged that a hiring was entered into for a reasonable time, such time is a question of fact.</p> <p>5. Master and servant <&wkey;>3(I) — Recovery of wages for reasonable time on contract alleged held not authorized.</p> <p>In an action for alleged breach of contract to employ plaintiff as a machinist in defendant’s railway shops, pleadings held not to authorize a recovery for wages for reasonable time; there being no allegation of a consideration paid for the right 'of employment, and the contract as alleged as to time of service being indefinite or determinable by either party.</p> <p><&wkey;For other eases see same topic ana KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

In the matter of the estate of George W. Brackenridge, deceased. Proceedings by M. E. Brackenridge to probate decedent’s will. From an order denying the probate, proponent appeals.

<p>Appeal from County Court, Grimes County; R. M. West, Judge.</p> <p>Action by H. A. Jacobs against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

A. McDowell, Judge. Action by the Devers Mercantile Company against J. W. Gray and the independent executors of the estate of Ed Paggi, deceased. Judgment for plaintiff, and the independent executors appeal.

<p>Appeal from Angelina County Court; Jno. E. Robinson, Judge.</p> <p>Suit by S. J. Whisenant against the Springfield Eire & Marine Insurance Company. Erom a judgment for plaintiff, defendant appeals.</p>

L.' Manry, Judge. Trespass to try title by the Southwestern Settlement & Development Company and others against the Village Mills Company and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Trusts <&wkey;135 — Grantee in trust to convey to third person takes title for such purpose as completely as if holding in own right.</p> <p>Where a deed was made in trust to convey to a third person, the grantee took title as fully and completely for such purpose as though holding in his own right, and not as trustee.</p> <p>2. Trusts <&wkey;203 — -Grantee in deed by trustee held to have acquired record title free from trust limitations.</p> <p>Where timber lands were conyeyed in trust to convey the timber and the land, and the grantee, in executing the trust, conveyed the iegai and equitable title to the timber, subject to the conditions of the deed, the purchaser therein received all of the grantor’s record title, free from all trust limitations.</p> <p>3. Trusts &wkey;>43(3) — Parol evidence of trust limitations in deed inadmissible.</p> <p>Where a deed was made in execution of a trust to convey both the timber and the lands, parol evidence of trust in the grantee was inadmissible.</p> <p>4. Deeds &wkey;>42l — Quitclaim deed conveys title as effectually as full warranty deed.</p> <p>A quitclaim deed is as potent to convey the title of grantor as a general warranty deed.</p> <p>5. Estoppel &wkey;>74(2) — Grantors in deed in trust to convey estopped from questioning validity of trustee’s deed.</p> <p>Where a deed was made in trust to convey the lands and the timber the^eqn, and the true title was vested in the trustee for the purpose of conveying it, the grantors in the trust deed were estopped to question the legal effect of the trustee’s deed.</p> <p>other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes</p>

<p>Appeal from District Court, Orange County; J. B. Eorse, Special Judge.</p> <p>Suit by E. J. Boudreaux and others against the Millers’ Indemnity Underwriters. Judg-' ment for plaintiffs, and defendant appeals.</p>

<p>Railroads &wkey;400( 10)— Contributory negligence of pedestrian struck by motorcar held for jury.</p> <p>In an action for the death of one walking on a passing track connecting with a main line track when he was struck by a ¡motorcar racing with a passenger train, moving over the main line track after stopping at the depot, where there was no testimony that he looked back as the car approached, and no proof that he did not see the car standing at the depot when he went on the track, held that the question of contributory negligence was for the jury.</p> <p><£=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes</p>

<p>I.Fraud &wkey;>3 — “Actionable fraud,” within statute, defined.</p> <p>Under Vernon’s Ann. Civ. St. Supp. 1922, arts. 3973a-3973c, defining actionable fraud with respect to real estate transactions, as a “false representation of any past or existing material fact, or false promise in the future, which is made as a material inducement to another party to enter into a contract, and but for which promise said party would not have entered into said contract,” the false representation or promise must have been made with knowledge of its falsity, or without knowledge as to whether it is true or false, and must have induced another person, acting with reasonable prudence, to rely on it to his pecuniary injury.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fraud.]</p> <p>2. Fraud <&wkey;l2 — False promise actionable under statute.</p> <p>In purchaser’s action against vendor for fraud, under Vernon’s Ann. Civ. St. Sppp. 1922, arts. 3973a-3973e, defining actionable fraud as a false promise to do some act in the future made as a material inducement to another party to enter into a contract, it must be alleged and shown that the promise was made with the fraudulent intent on the part of the vendor not to perform.</p> <p>3. Fraud <&wkey;l2 — Pointing out one tract and conveying another held actionable fraud.</p> <p>The mere fact that vendor’s agent showed purchaser one tract of land as the land he was selling him, and conveyed another tract, did not entitle purchaser, who went into possession of land actually conveyed and made valuable improvements thereon, to recover for fraud under Vernon’s Ann;. Civ. St. Supp. 1922, arts. 3973a-3973e, defining “actionable fraud” as a false and fraudulent representation of a past or existing material fact, or false promise to do some act in the future, made as a material inducement to another party to enter into a contract, and but for such promise such party would not have entered into such contract, in absence of showing that vendor’s agent made promises to purchaser with intent to defraud and deceive him.</p> <p>4. Fraud &wkey;>3l — Remedy under general laws and rules of equitable jurisprudence available.</p> <p>The mere fact that purchaser could not recover for fraud of' vendor, under Vernon’s Ann. Civ. St.' Supp. 1922, arts. 3973a-3973c, defining actionable fraud, did not prevent a recovery under the general laws and rules of equitable jurisprudence against the actual perpetrators of the alleged fraud.</p> <p>5. Trusts &wkey;»232v-Trustee, who did not participate in or benefit by fraud, not personally liable therefor.</p> <p>A trustee, who did not participate in or receive any benefit from fraud inducing sale of land, was not personally liable for the fraud.</p> <p>6. Fraud <&wkey;>30 — Holder of purchase money notes not liable.</p> <p>Holder of purchase-money notes, constituting a lien on certain land, who did not participate in or profit by fraud inducing the sale of the land, was not personally liable therefor.</p> <p>7. Fraud <&wkey;3l — Defrauded party may rescind or sue for damages.</p> <p>A defrauded party, in a case of a fraudulent sale of land, has his remedy to move to rescind, or to stand on his right to sue for damages, but he must act promptly.</p> <p>©=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p> <p>8. Contracts <&wkey;266 (2) — Defrauded party, to rescind, must disaffirm on discovery of fraud and offer to return the consideration.</p> <p>Generally a defrauded party, in order to rescind,-must disaffirm the contract on the discovery of the fraud,-and return or offer to return what he has received from the other party.</p> <p>9. Vendor and purchaser <&wkey;l 17 — Defrauded purchaser, to re-scin.d, need not tender back property as condition precedent to suit.</p> <p>A defrauded purchaser, in order to rescind contract solely on the ground of fraud, need not tender back the property as a condition precedent to Ms suit..</p> <p>10. Fraud <&wkey;31 — Failure to promptly rescind does not affect right of action.</p> <p>Defrauded purchaser’s failure to promptly move to rescind contract does not affect his alternative right to proceed with the common-law remedy for the alleged fraud committed.</p> <p>11. Vendor and purchaser <&wkey;337 — Rights of purchaser, to whom vendor’s agent fraudulently conveyed one tract of land after pointing out another, stated.</p> <p>Where vendor’s agent fraudulently, pointed out one tract of land as the tract the vendor was selling, and thereafter conveyed a different tract, purchaser, who took possession and made improvements on the tract actually conveyed, was entitled to the iand he bargained for, and to the actual and consequent damages resulting from the fraud, and to an equitable lien on the land improved to secure a return of the money paid, superior to any note outstanding against him executed for the purchase price of the land.</p> <p><S&wkey;For other cases see same topic and KEY-NOMBEIt'in all Key-Numbered Digests and Indexes</p>