Volume 46 — Texas Reports

Tried below before the Hon. M_ D. Ector. Orville Waldroff and James Leary brought suit against 5. T. Scott for $159, with interest, alleging, that in October, 1878, they erected the basement story of a dwelling-house for defendant in Harrison county, on which they used material and bestowed labor, which they specified.

Tried below before the Hon. Z. Horton. Mary Hendrix brought suit in the District Court of Wood county against P. J. Hendrix, executor on the estate of her husband, Larkin Hendrix, deceased.

<p>Appeal from Rusk. Tried below before the Hon. M. H. Bonner.</p>

Tried below before the Hon. James M. Rogers. February 19, 1875, Harrison filed in the District Court of Marion county his petition for an injunction against Vines, the sheriff, to prevent the sale of certain personal property (an iron safe and its contents) to satisfy the tax due on five hundred shares of stock in the Rational Bank of Jefferson. A temporary injunction was granted by the judge.

Error from Rains. Tried below before the Hon. Z. Horton. James Garrett, for the use of Wallace & Co., brought suit against Henry Heath, administrator of the estate of M. H. Heath, deceased, on a promissory note which had been rejected, and to enforce the vendor’s hen on lands described in the petition.

Tried below before the Hon. M. D. Ector. July 11, 1874, Thomas E. Eirsh, as administrator of William M. Mathews, sued A. L. Pinson on several notes described in the petition. Citation issued and was served. Defendant, July 29,1874, answered by demurrer and general denial.

<p>Appeal from Rains. Tried below before the Hon. Z. Horton.</p>

<p>Appeal from Anderson. Tried below before the Hon. M. H. Bonner.</p> <p>The facts will be found carefully stated in the opinion.</p>

Tried below before the Hon. M. H. Bonner. This case can be understood from the opinion. The nature of the controversy does not admit of an abstract of the pleadings, exhibits, evidence, orders, &c., contained in the record of about four hundred pages. The case went to the jury on twenty-six special issues.

Tried below before the Hon. Z„ Horton. James Lynch sued Woosley to recover money paid by Mm for a note on L. Moody, payable to H. A. Birge or bearer. The petition alleged that Woosley represented the note to be for §2,500, when in fact it was only for §25; that petitioner is illiterate and cannot read, and in maldng the purchase of the note on Moody acted on the representations of Woosley; that Woosley guaranteed the note to the amount of §400, the amount paid therefor.

Tried below before the Hon. W. H. Andrews. The facts of the case will be found very fully stated in the opinion of the court, delivered in Ury v. Houston, 36 Tex., 265.

Tried below before the Hon. M. D. Ector. A statement of the complicated pleadings and numerous exceptions which marked the progress of this cause in the lower court will subserve no useful purpose. Everything necessary to a proper understanding of the opinion will be found referred to in it.

<p>1. Uncertainty in description in a deed.—Where the uncertainty of description in a deed does not appear from the face of the deed, but arises from extraneous facts, parol evidence is admissible to remove or explain it.</p> <p>2. Same—Practice.—In such cases the deed should be admitted, together with the parol evidence; the identity of the land is then a mixed question of law and fact.</p> <p>3. Same.—See a description, though vague and uncertain, held admissible, with other evidence to identify the land intended to be conveyed.</p> <p>4. Calls in a description op land.—See a discussion of contradictory calls, with reference to ascertaining the meaning of the conveyance.</p>

<p>Appeal from Marion. Tried below before the Hon. J. H. Eogers.</p>

<p>Error from Anderson. Tried below before the Hon. M. D. Ector.</p> <p>The facts are fully given in the opinion.</p>

<p>1. Foreclosure—Parties.—In a suit to euforce the vendor’s lien, a subsequent vendee, in possession, and claiming under a recorded deed, is a necessary party.</p> <p>2. Same—Sale.—As against a purchaser, of whose claim there is notice, a sale had under a decree of foreclosure against the original vendee alone, is not sufficient to pass title.</p> <p>3. Same.—Nor is it different where such purchaser knew, at his purchase, that the purchase-money, in whole or in part, was unpaid, and knew of the proceedings to enforce the lien.</p> <p>4. Practice.—The pleadings not admitting that the defendant held by purchase prior to the commencement of the suit to foreclose, it was not error to admit the decree and sale made under it, when offered as evidence of title.</p> <p>5. Foreclosure—Pleadings.—Where such purchaser, under decree of foreclosure, brought trespass to try title against a prior purchaser, the equities which the plaintiff had as against the land, by his owning the judgment, by virtue of his purchase of the land and payment of the judgment, cannot be litigated. By proper pleadings, the plaintiff can enforce his equities against the land.</p>

Tried below before the Hon. F. B. Sexton, special district judge.

Tried below before the Hon. M. L. Crawford. This was a suit by Naomi Peters, joined by her husband, to try the title to four hundred and fourteen acres of land, alleged to be the separate property of Naomi Peters. The land in controversy was part of a one-third league patented to Richard Peters. Richard Peters, in 1859, sold the third league, less three hundred and twenty acres, to Thomas M. Peters, who on 14th August, 1860, conveyed the land sold to him to W. F. Connell.

<p>1. Practice in Supreme Court—Motion.—A motion, with reference to a suit pending in the Supreme Court, should, when filed at the instance of an attorney for the party in whose behalf it is made, be signed by him. Mo uniform rule having been established on this subject by the court, a motion not signed is considered, which contains in the body of the motion the name of the counsel and indicates the parties for whom he appears.</p> <p>2. Writ of error—Limitation— Married women.—A motion was made to dismiss a writ of error because the same was sued out more than two years after the date of the judgment. The petition in error alleged that one of the plain tills in error, who was a married woman, had continued a feme covert until the suing out of the writ, and that her co-defendant in the court below died before the date of the judgment, leaving two minor children, who remained minors until married, in less than two years before suing out the writ, which statements were not contested: Meld, 1, That, even had it been shown that those who were alleged to have been minors were not such, the petition in error could be maintained by the feme covert and her husband; the statute of limitation did not run against her during marriage; 2, that one of two or more defendants in a judgment may sue out a writ of error.</p> <p>3. Writ of error may be sued out by heirs.—Though there is no statute qxpressly authorizing the widow and heirs, or an administrator of the estate of a party to a judgment, who dies, to sue out a writ of error, the right exists as resulting from the right of appeal, which is secured by law. In the absence of a statute prescribing an apprqpriate mode of obtaining a review of proceedings on appeal, it is competent for the court to supply the deficiency by adopting proper rules upon the subject.</p> <p>' 4. Practice in Supreme Court—Jurisdiction.—When facts are stated in a petition in error which are contested by answer of the opposite parly, the Supreme Court has power, under sec. 2, art. Y of the Constitution of 1876, to hear affidavits on which it can properly determine the exercise of its own jurisdiction.</p> <p>5. Writ of error—Practice in Supreme Court.—When the widow of one against whom judgment has been rendered in the District Court refuses to join her children and heirs in applying for a writ of error, there is no impropriety in her being made a defendant by the heirs.</p> <p>6. Service of writ of error.—The act of March 15, 1875, entitled “An act prescribing the mode of service in certain cases,” is general in its provisions regarding the mode of making service on non-resident defendants, and applies as well to service of writs of error as to ordinary suits. The person making service and affidavit under the provisions of that act will be presumed to have been a “ competent person,” in the absence of anything to the contrary.</p> <p>7. Judgment.—A judgment rendered by agreement between the plaintiffs and intervener, which undertook to divide between them the land in controversy, to which agreement the defendant was not a party, he having no legal notice of intervenor’s claim, will be reversed for obvious error.</p>

<p>1. Costs, how taxed—Witness.—The amount clue each witness for attendance in a suit, should be separately taxed, and thus carried into the bill of costs accompanying the execution, so as to give the defendant each item of costs he is required to pay.</p> <p>2. Costs—Certificate.—The certificate given by the clerk, on the oath of a witness, showing the amount due him for attendance on a cause, is not an adjudication any more than the taxing of costs in the fee-book would be, but they are botii modes, prescribed by law, for the authentication of a claim, which is prima facie evidence of its correctness, when done, upon which suit may be brought against the party who summoned him, without waiting for the termination of the suit. If the party who procured the witness to be summoned should pay his certificate, the possession of it, receipted, would be evidence of 1ns right to receive the money when collected from the party against whom the judgment for costs is rendered.</p> <p>3. Costs op suit—Taxation of.—At a term of court, after judgment, the court, on motion of the party against whom costs had been adjudged, ordered a retaxation of the costs, excluding certain witness fees for informality of taxation; the costs were immediately paid to the clerk as retaxed; after this, during the same term, the costs were, on motion, again adjudged to be retaxed, so as to include the witness fees, the informality of the first taxation having been cured by the affidavits of the witnesses and tiie clerk’s certificate. There was no effort made to show that the charges of the witnesses were excessive or unfounded: Held, That the payment of the costs under the first order did not preclude the subseqtient judgment, which must be held, in the absence of testimony contradicting the clerk’s certificate and tiie affidavits of the witnesses, to be correct.</p> <p>4. Approved, Plores v. Thorn, 8 Tex., 381.</p> <p>5. Distinguished.—This case distinguished from Hardy v. DeLeon, 7 Tex., 467.</p>

<p>1. Trustee in invttum.—It is a common and familiar application of “their remedial justice ” for courts of equity to force upon the conscience of a party the duty of a trustee in regard to property which has been acquired by artifice or fraud, and where, either from tlie character of the property or the circumstances under which it is acquired or held, it would be against equity to permit such party to hold it’except as trustee.</p> <p>2. Same.—The cases where such relief is granted are, generally, where there has been some breach of duty or want of good faith and fair dealing on the part of the person acquiring the property, or of him from whom or under whom he has obtained it, of which he has actual or-constructive notice; or, where t-be property has been acquired or possession of it taken on the assumption of a trust- character, or under the belief by those with whom the transaction is had, or by reason of which it was acquired or possessed, that it was taken or acquired in trust; or, where it has been obtained by some undue influence.</p> <p>3. Same.—See this case for allegations held insufficient to charge defendant as such trustee.</p> <p>4. Same.—See facts held insufficient to authorize such relief against the defendant.</p> <p>5. Fraud.—Allegations of fraud must specify the acts insisted on as fraudulent.</p>

Error from Gregg. Tried below before the Hon. Z. Horton. April 19, 1873, Burleson sued Durham, in the District Court of Upshur county, for five hundred and twenty acres of land, claimed under a location and survey made by virtue of donation warrant Ho. 100, issued by W. S. Hotchkiss to Simon P. Ford, for six hundred and forty acres. It was alleged that Durham had cut a great quantity of cord wood on the tract, and was about to remove the same.

Tried below before the Hon. George Lane. On the 25th day of May, 1869, the plaintiff in this suit, James Horton, contracted with the defendant, Lipscomb Howell, for the purchase of one thousand acres of land, a part of the headlight league of the said Lipscomb Howell, which was located in the county of Limestone, near Tehuacana Springs.

Tried below before the Hon. Z. Horton. The action of the court below on the motion affecting the verdict, xvhich is set forth in the opinion, is contained in the following entry, viz: “ The motion in arrest of judgment then coming on to be heard, was argued, and it is considered and adjudged that said motion be sustained.

<p>Appeal from Gregg. Tried below before the Hon. Z. Norton.</p>

<p>Appeal from Upshur. Tried helow before the Hon. Z. Horton.</p>

Tried below before the Hon. Z. Horton. June 30,1873, B. H. Gandy & Son brought an action against Thomas F. Purnell, United States marshal for western district of Texas, Clifton Witherspoon, his deputy, Gregg & Ford, Briggs, Payne & Co., and W. D. Simmons, for damages for maliciously and wrongfully breaking open the storehouse of plaintiff, and taking therefrom goods of the value of $4,896.80; both actual and punitory damages were claimed.

<p>Appeal from Titus. Tried below before the Hon. J. H. Rogers.</p>

Error from Delta. Tried below before the Hon. W. B., Andrews. D. T. Bobinson brought suit in the District Court against John B. Favers, B. H. Bennett, and Frederick W. Miner on a promissory note executed by Faver, Bennett, and Miner, to Delta county, and by the county assigned to plaintiff, for lot Ko. 5, in block 17, of the town of Cooper, sold by the county authorities to said John B. Favers.

Tried below before the Hon. M. II. Bonner. This suit was instituted by Cora A. Pool for two purposes: 1st. To set aside a deed of trust executed by appellant and her husband to E. H. Chase & Co., to secure the payment of three promissory notes, payable to Chase & Co., due in two, four, and six months after date, and dated 3d October, 1873, upon the ground that the deed of trust purports to bind the separate property of appellant to pay the debts of her husband; that said…

Error from Hopkins. Tried below before the Hon. W. H. Andrews. This was an action, brought by W. H. Pugh against J. W. Hendon, on two promissory notes, one payable to W. N. Pugh and the other payable to the order of W. N. Pugh, and to enforce a vendor’s lien on the land described in the petition. Judgment by default was rendered against plaintiff in error for the amount of the notes, and enforcing vendor’s lien, from which judgment a writ of error was prosecuted.

<p>Error from Cherokee. Tried below before the Hon. E. S. Walker.</p> <p>The facts are given in the opinion.</p>

<p>Error from Harrison. Tried below before the Hon. M. D. Ector.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. R. S. Walker. Griffeth & Wedge sued Hanks & Collins on nine obligations, for the delivery of lumber, executed to one J. C. Seydel, for the purchase-money of a steam mill and fixtures, which were indorsed by Seydel to plaintiffs.

Error from Harrison. Tried below before the Hon. M. D. Ector. March 6, 1876, petition was filed by Anna McCoy v. J. H. Kennedy, in the District Court of Harrison county, in term time—the term having commenced 17th of January—on a . promissory note, and to foreclose a mortgage upon real estate.

Tried below before the Hon. Green J. Clark. H. M. Truehart, August 23,1872, brought an action of trespass to try title to a tract of 687 acres of land in Hopkins county, against W. 8. McMichael. The defendant pleaded not guilty. The petition, amended, set out, by metes and bounds, the land claimed, and the chain of title. September 5th, 1876, defendant amended, and pleaded ten years’ adverse possession, claiming the land under the 17th section of the Statute of Limitations.

Tried below before tbe Hon. B. T. Estes. This suit was brought by Castleman, for the use of E. G. Goodman, to recover a title to land on a verbal contract, alleging the payment of the purchase-money and valuable improvements made by the purchaser. Castleman, in his petition, alleged that he had, subsequent to his. verbal contract for purchase, sold the land to one Goodman, but there seems to have been no effort to make Goodman a party to the suit.

Tried below before the Hon. Z. Horton. Suit in trespass to try title brought by J. F. Baxter. On the trial the plaintiff sought to introduce a power of attorney, authorizing the attorney “ to transact all business for me, and in my name, in the State of Texas, to sell all the land in said State which I now own, to execute all manner of deeds,” &c., which was excluded from the jury on objection of defendant. On this ruling an exception was taken, and error assigned.

<p>1. Suit by publication—Practice—Amendment.—When by amendment an allegation is made of such a nature that the defendant should be served with notice, and such service was had by publication, there being no appearance, the proceedings will be considered as if in a “suit by publication,” and unless the record contain a statement of facts, such judgment will be reversed.</p> <p>2. Service by publication.—Since the “act of March 15, 1875, prescribing the mode of service in certain cases,” the affidavit of the person making such publication is required in addition to the return of the sheriff showing that the publication had been made.</p>

Tried below before the Hon. Z. Horton. May 8, 1846, Graham located a conditional certificate for six hundred and forty acres of land in part on the two hundred and seventy-three acres in controversy in this suit. September 28, 1853, W. B. Miller, the deceased husband and father of the plaintifis, laid' a Mercer’s colony certificate on the same two hundred and seventy-three acres.

<p>1. Affirmance on certificate—Practice in Supreme Court.— The act to regulate proceedings in the Supreme Court, of April 2, 1874, which provided that when a party is unable to file in the Supreme Court the transcript of a case, in the time limited by the statute, from any unavoidable cause, the court shall, upon satisfactory proof thereof, permit such transcript to be filed at a later period, conferred, in that, no new right, but was in accordance' with the practice of the Supreme Court, founded on a former statute. (See Paschal’s Dig., arts. 1589, 1590.)</p> <p>2. Practice in Supreme Court.—Though the statute nowhere expressly authorizes or requires the appellee to file the transcript of a record at any time, it requires the clerk of the District Court to give to either party who may apply for it an attested copy of the record; and it has been the practice of the court to allow the appellee to file the transcript, when filed on or before the first day of the assignment without his right to do so being questioned; but if he fails to do so, no practice recognizes his right to file it afterwards, on showing good reason for not filing it sooner, as the appellant is authorised to do.</p> <p>3. Cited and approved: Davenport v. Hervey, 30 Tex., 330; Hutchinson v. Owen, 20 Tex., 288; Reynolds v. Dechaumes, 22 Tex., 119.</p> <p>4. Affirmance on certificate—Practice in Supreme Court.— When a complete transcript is filed by appellee, in place and as a substitute for a certificate, and it is found to contain those parts of. a case which are required to be certified to in" a certificate, it may be acted on by the Supreme Court as such; and for that purpose, may be filed without asking leave of the court.</p> <p>5. Same.—Either party has a right to apply for and obtain an attested copy of the record, and file it in the Supreme Court for its adjudication, within the time prescribed, but neither party has a right; > rely on the other party to do it. Neither party is bound to file it after obtaining it, unless it should suit his own wishes to do so.</p>

Tried below before the Hon. M. IT. Bonner. August 19, 1857, John C. Robertson, William Stedman, James H. Jones, and S. P. Hollingsworth were joint owners of two tracts of land lying contiguous, in Rusk county. On that day, they contracted, by their title bond, jointly to make a deed for said lands to Robert H. Cumby, so soon as he should have paid them $1,500, for which he executed to them his promissory note, due December 25, 1858.

<p>1. Rule for costs.—The letter of the statute (Paschal’s Dig., 1500,) authorizes the dismissal of the ease when a rule has been, regularly entered requiring the plaintiff to give security for costs, if the security is not given on or before the first day of the next term after the rule. By a liberal construction of the statute, it is held that tiie rule may be complied with after the first day, if done before the case is dismissed.</p> <p>2. Same.—It is not error, for which, on appeal, a reversal will be had, to refuse to postpone a case when reached, in which a rule for costs has been entered, for the purpose of enabling the plaintiff to comply .with the rule, or to overrule a motion to reinstate such case after the order of dismissal.</p> <p>3. Same.—If plaintiff and his leading counsel were both sick and unable to attend to business when the case was called, that fact, if presented at the time, might be a reason for postponing the case, and allowing further time for complying with the rule.</p>

<p>1. Land certificates—Administrators’ sale—Land.—A colonist, with his wife, settled in Mercer’s colony, in 1847, soon after which both died. The husband’s estate was alone administered on, and a colony certificate for 640 acres was issued in the name of the husband, and sold by the admininistrator: Held, That if legally sold, in due course of administration, such certificate being community property, the sale passed the legal title to it, and to any land on which it might be located, from the heirs of both the colonist and his wife.</p> <p>2. Land certificate—Administrators’ sale—Land.—Such a certificate was sold, under order of the County Court, by the administrator, on the estate of the deceased colonist in 1851, and the money paid by the purchaser; there was no formal confirmation of sale, but the same was reported by the administrator to the court, in an exhibit showing the condition of the estate, two years after which the court ordered the administrator to make title to the purchaser to a part of the land afterwards covered by the certificate, which had been patented to the heirs of the colonist. Appellees claimed the land under the original purchaser at administrators’ sale: Held, That these facts,- in connection with other undisputed mesne conveyances to appellees, constituted a right in them to the land as against the heirs of the colonist’s wife.</p>

Tried below before the Hon. M. H. Bonner. Suit by Hays against the Houston and Great Horthern Eailroad Company, to recover damages, claimed by him to be fifty thousand dollars, because of his alleged wrongful expulsion by a railroad conductor from one of the passenger trains of said company, on the 7th day of July, 1873, between Zavalla and the city of Tyler. Appellee denied the allegations of said petition, and pleaded legal justification for the act of his agent.

Tried below before the Hon. M. H. Bonner. October 23,1856, Julia Burgett, as administratrix of estate of Sidney A. Sweet, joined by her husband, sued, in trespass to try title, Fincher Jones and others, for land described as follows in the petition: “ One league and one labor of land granted by the State of Texas to John 0.

<p>Appeal from Smith. Tried below before the Hon. M. H. Bonner.</p>

The district judge, having been of counsel, declined to try the cause, and the same was tried before James Turner, esq., special judge, selected by the parties. The facts are sufficiently stated in the opinion of the court.

Tried below before the Hon.John H. Reagan, special judge. The facts necessary to a proper understanding of the opinion will be found contained in it.

Tried below before the Hon. M. D. Ector. The opinion contains a statement of the ease, as acted on by the court. A history of the litigation is given in the briefs of counsel, which are given entire.

Tried below before the Hon. M. D. Ector. December 5, 1873, J. W. Flanagan, as the administrator of George Pierce, brought an action of trespass to try title against Braziel Boggess, for 640 acres- of land, the headlight of David Brown.

Tried below before the Hon. M. D. Ector. This cause was, by appeal, before the Military Supreme Court of Texas, Watt v. White, Smith & Baldwin, 33 Tex., 421, and again White, Smith & Baldwin v. Downs, 40 Tex., 225. An effort was made to remove the case to the United States Circuit Court for the Western District of Texas. The proceedings on this application are shown in the opinion. The facts are few additional to those appearing in the former appeals.

<p>Appeal from Panola. Tried below before the Hon. George Lane.</p> <p>The facts are carefully given in the opinion.</p>

<p>Change of venue.—In October, 1876, an order was made by the district judge in Kaufman county, to transfer a cause which the presiding judge was disqualified from trying, to the county of Van Zandt. Tlie district clerk of Kaufman county refused to make out a t-ran-script of the entries and decrees in the case, and to forward them, together with the original papers in the cause, to Van Zandt count}’, as required by the order. On appeal by the plaintiff from the judgment of the District Court, refusing to award a mandamus against the clerk to compel a transfer of the papers in the cause: Held—</p> <p>1. That the disqualification of the district judge is not, under the present Constitution, a cause for a change of venue.</p> <p>2. When a district judge is disqualified, a special judge must be provided, as required by the act of 187G, (General Laws, sec. 3, p. 141.)</p> <p>3. The act of 1854, which provided for a change, of venue when a district judge was disqualified, cannot be upheld as a law now in force by see. 45, art. 3 of the Constitution of 1876, which provides that “the power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall he provided by law, and the Legislature shall pass laws for that purpose ; ” that section, as well as that part of section 56 in the same article which prohibits a special law changing the venue in civil or criminal cases, is designed as a limitation on the legislative power, and to require that a change of venue shall be a judicial act under a general law prescribed for that purpose.</p> <p>4. That the writ of mandamus was properly refused.</p>

Tried below before the Hon. M. D. Ector. This suit was brought by James Murphy, to recover $20,000 damages, alleged to be due on account of the negligence and gross misconduct of the conductor on a jiassenger train of the Southern Pacific Bailroad Company.

Tried below before the Hon. George Lane. Suit brought by A. Mayer, the appellant, against Ramsey, in trespass to try title. Ramsey answered “not guilty,” and twelve months’ occupancy of the land in good faith, and that he had made permanent and valuable improvements. It was agreed on the trial, that both parties derived title 1‘rom a common source—one G-.

Tried below before the Hon. I. B„ McFarland. The Patrick Allison quarter-league grant in Fayette county-contained an excess of 74T-¡y acres. October 14,1844, Robert W. Henry and Alfred Moore, then owning the Patrick Allison one-fourth-league grant, sold to Mary Wilson 700 acres off the northern part of said tract, leaving 411 acres off said quarter of a league, and bounded on the south by a bne running east and west, separating the two tracts.

<p>Appeal from Houston. Tried, below before the Hon. L. W. Cooper.</p> <p>The opinion contains a sufficient statement of the case.</p>

<p>Appeal from Colorado. Tried below before the Hon. L. Lindsay.</p> <p>W. J. Hutchins, the appellee, filed Ms suit in the District Court of Colorado county against Sarah B. Mercer, executrix of her late husband, Levi Mercer, deceased, alleging that Mercer owed Mm a note of $3,092.82, with ten per cent, interest, bearing date in October, 1861; that he had made a will, and appointed his wife, the said Sarah B. Mercer, executrix, without security and independent of the Probate Court, according to the statute respecting independent wills, &c. The said executrix failed to give any bond as such executrix, and yet had proceeded to manage the business of the estate in said Probate Court, &c.; that the said executrix had allowed a certain note for about $6,500, secured by a vend- or’s lien upon certain real estate, and by mortgage upon certain other real estate, of said Mercer’s estate, and that the probate' judge had approved the same and granted the application of the executrix to sell the property for the satisfaction of the debt and interest so claimed to be due to said Kerr; that in fact the note had been fully paid off and discharged by Mercer before his death, and was now allowed and approved and ordered to be paid, by collusion and fraud. The petition prayed for and obtained a writ of certiorari, to bring up said cause to the District Court, &c.</p> <p>William J. Hutchins afterwards filed another petition in the same court, against said Sarah B. Mercer, executrix, and A. B. Kerr, in which it was charged that the note, lien, and mortgage claimed by Kerr and allowed by the executrix had been paid and satisfied by Mercer before his death; and that if the same was then in the hands of A. B. Kerr, he only held the same for the use and benefit of Mercer, and had no interest in the same; that the note, lien, and mortgage were only attempted to be kept alive for the fraudulent purpose of defeating the other creditors of said estate, and to enable Kerr to protect the property of Mercer from his creditors, and prayed that the same he canceled and fully discharged as paid. To this petition, Kerr answered by general demurrer and general denial, March, 1867.</p> <p>On the 24th of October, 1870, W. J. Hutchins filed his amended petition, setting forth the allegations in his original petition about the Kerr note and claim, and declaring that on the 15th day of December, 1863, the note of $6,500 was payable to one E. W. Glenn, and was on that day paid off by Mercer, but that Glenn, at the request of Mercer, assigned the same to Kerr; “ and it was the understanding of Mercer and Kerr, at the time of said assignment, that the said Kerr was to hold said note, in order to secure him in the amount which he (Kerr) had paid to Glenn for Mercer on said note,” &c.; that “ when the arrangement aforesaid was made, Levi Mercer was a man of wealth and owned a large number of negroes, but in 1865 (the date of the acknowledgment of the justice of the note by Mercer and the execution of the mortgage to Kerr on his lands to secure its payment) the negroes of Mercer had been freed, and he was largely indebted and unable to pay said debts, which facts •were known to Kerr, and said acknowledgment was made, and said mortgage executed by the said Mercer, for the purpose of delaying, hindering, and defrauding his creditors, and for the purpose of protecting his property from his creditors,” &c. “ Plaintiff relied on all the allegations in his original petition, and prayed that the court may determine from the facts how much of said note Kerr really owns, and only permit him to hold said amount against the estate of said Mercer, and for general relief,” &c.</p> <p>On the 6th of October, 1870, Kerr filed his amended answer, in which he admitted the death of Mercer, his independent will, the allowance by the executrix of his claim upon the note, hen, and mortgage, hut denied all combination, collusion, or fraud, and averred that he was the true, legal owner of the $6,500 note, with its purchase-money hen, and the mortgage for its further security, and that he purchased the same from E. W. Glenn, in good faith, and paid therefor a just, full, and fair consideration; and that Glenn, in 1863, indorsed in writing, transferred, and delivered said note, lien, and mortgage to defendant Kerr, under and by which he claimed and owned the whole as his own property.</p> <p>In 1871, the two cases, Nos. 2163 and 2166, were consolidated and tried, resulting in a judgment in favor of Hutchins for his debt against the estate in the hands of the executrix, and annulling, as fraudulent and void, the claim of Kerr, in case No. 2166, and dismissing the other case, No. 2163, on the ground that the Probate Court had no jurisdiction over the estate under the independent will, and could not, by certiorari, send the cause to be tried de novo in the District Court.</p> <p>The executrix did not appeal from the judgment against her in case 2166, nor did Hutchins appeal from the judgment dismissing the case No. 2163 against the executrix alone.</p> <p>Defendant A. B. Kerr, however, did appeal to this court for a reversal of the judgment against him in said cause No. 2166, annulling and setting aside his note for $6,500, its purchase-money lien, and the mortgage upon other lands given for its further security; and on the 27th day of June, 1872, this court reversed and remanded for a new trial the said judgment against A. B. Kerr, upon the grounds and for the reasons set forth in its opinion. (36 Tex., 452.)</p> <p>When the cause was tried in the District Court, it was upon the same pleadings, except an amendment of the petition, declaring the estate of Levi Mercer insolvent at the time of his death and ever since.</p> <p>The court below, amongst the charges asked by the plaintiff, gave the following, viz: “ Any person who is largely indebted to various creditors, if he mortgage the whole to one creditor, (which was greatly more than sufficient to secure the debt of said creditor, said creditor knowing such indebtedness,) or the great mass of his property, leaving not enough to satisfy the demands of the other creditors, it is fraud in law, as to such other creditors, because it operates to hinder or delay such other creditors, although the purpose of the parties might not have been directly for the purpose of defrauding the other creditors.”</p> <p>•The evidence is voluminous, and its statement is not rendered necessary by the opinion.</p> <p>The jury returned the following verdict: “We, the jury, believe thereto be a combination between Mercer and defendant Kerr to hold the property against the other creditors, and we find a verdict in favor of - the plaintiff Hutchins for the principal and interest at-eight per cent.”</p> <p>Upon this verdict the court proceeded to render judgment, annulling the note of $6,500, and discharging the hen in its favor for pm’chase-money on the land for which it was given, as well as the mortgage on other lands for its further security.</p> <p>From this judgment the appeal was taken.</p>

<p>Factor—Purchaser.—Ordinarily, the possession of cotton by a cotton factor, who is a factor only, not engaged in buying and selling on his own account, raises a presumption that the cotton does not belong to him, but is held on commission for another; but this presumption may be rebutted by the real-owner permitting his ownership to be concealed, and the property to be so acquired, managed, and possessed, by the factor, as to indicate to third persons that the factor is the real owner. Under such circumstances, the factor, so held out as the real owner, may sell the property, in discharge of his previous debt, to one who had no notice, actual or constructive, of the defects in his title, and the sale will be valid.</p>

Tried below before the Hon. James B. Burnett. C. J. Borden sued Frank Tillman, in the District Court of Brazoria county. Service was had by publication, but at the ¡November Term, 1869, of that court, Tillman appeared by attorney, and on ¡November 10,1869, judgment was rendered for plaintiff, for $1,056.76 and costs of suit.

<p>Appeal from Brazoria. Tried below before the Hon. A. P. McCormick.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Harris. Tried below before the Hon. J ames Masterson.</p> <p>This suit was brought by Matilda J. Bacon, against A. J. Hutchins, T. B. Holder, Isam Gr. Searcey, and others, in trespass to try title. The petition alleged that “ she is the owner, and entitled to possession,” of the land in controversy; “that she holds said land by regular chain of title from Jesse Den-son, which she will show to the court and jury on the trial hereof.” Attached to the petition, and made a part thereof, was a notice of the filing of certain deeds, among which was a deed by Thomas S. Bacon to Matilda J. Bacon, dated 10th May, 1870, which was read in evidence. This deed was made to plaintiff while she was a married woman, the wife of A. B. Bacon, and recited a conveyance of the land to her, in. consideration of the sum of one hundred dollars paid the grantor by her. The plaintiff amended, alleging, that since she instituted the suit, she had married one Dinsmore, who appeared and made himself a co-plaintiff.</p> <p>The defendants, Robert Singleton and T. B. Holder, alleged that they were the owners of the land; that they had purchased the same for a valuable consideration, in good faith, and without notice, &c., and made suggestion of improvements, in good faith, in accordance with the statute.</p> <p>A general demurrer was filed by all the defendants, and a plea of “not guilty.”</p> <p>On the trial, the -following charge was asked by the defendants, upon the legal effect of the conveyance to Matilda J. Bacon.</p> <p>“If the jury believe, that at the time that the deed to the land in question w.as made by Thomas S. Bacon to Matilda Bacon, the said Matilda was a married woman, the said land became the community property of herself and husband, and her said husband has since died, then she cannot legally maintain a suit for it in her own name as her separate property—the presumption of law being that property acquired during marriage by onerous title is community property, and it devolves upon the party claiming it as separate property to show it.”</p> <p>The refusal of this charge by the court below was assigned as error.</p> <p>Plaintiff claimed title under conveyances from one Jesse Denson, grantee of the land in controversy, and read a copy of a conveyance, certified by the clerk of the District Court of San Augustine county, on the 13th of April, 1871, as a “ true and correct copy of the original now on file in my (his) office.” The instrument was dated October 31, 1834. It was' signed by the grantor, and Benjamin Lindsay, alcalde, and two instrumental witnesses. Defendants objected to its being read, on the ground that it was not properly authenticated for record. The objection was overruled, and this ruling was assigned as error.</p> <p>A witness, Roberts, the executor of Elisha Roberts, was? over the objection of defendants, permitted to testify as to the contents of a certain order and letters of Jesse Denson to Elisha Roberts, recognizing the title to Hutchins, under whom plaintiff claimed. The evidence was admitted upon the affidavit of plaintiff’s attorney, that “plaintiff and affiant had made diligent search for the orders and letters of Jesse Den-son to Elisha Roberts among the papers of plaintiff, where said papers ought to be, and where plaintiff and affiant believe they ought to be, and they have not found them, and affiant states that they are lost or mislaid.” Roberts testified to the former existence and loss of the papers. To this ruling of the court, also, exception was taken, and the ruling assigned as error.</p> <p>The verdict, and the action of the court below in rendering judgment upon it, are referred to in the opinion, in which the verdict is set forth at length.</p>

<p>Appeal from De Witt. Tried below before the Hon. D. D. Claiborne..</p> <p>S. F. Grimes brought suit, August 21,1871, against hi. Hobson, in the District Court of De Witt county. The petition set out that, October 5, 1855, in the District Court of Jackson county, a judgment was obtained for §1,132.49, by Joseph IT. Raymond, against William G. Hill, Benjamin F. Hill, and D. M. Stapp; that under said judgment, an alias execution was issued, October 4, 1858, to the sheriff of DeWitt county, which execution came to the hands of the sheriff of De Witt county, October 12,1858, and was, on the same-day, levied on a tract of 1,000 acres, being the interest of defendant William G. Hill in a league of land patented to him in 1852; that under said execution, the sheriff sold said land on the first Tuesday in February, 1859, when James E. Sutton became the purchaser, for fifty dollars, the highest bid offered; and the sheriff executed a deed therefor. That said William G. Hill, on Novemher 30, 1858, executed to defendant Hobson a deed for said land, under which he sets up claim; that the claim of Hobson, as against plaintiff, is void; but is a cloud on the title of plaintiff, and embarrasses him in the sale thereof. He asked judgment quieting his title to the land against defendant, declaring such claim void, and for general relief.</p> <p>The defendant pleaded his purchase of W. G. Hill, alleging that the judgment was dormant at the time of the issuance of the alias execution under which the sale was made, through which the plaintiff claimed title.</p> <p>A jury was waived, and judgment was rendered for the defendant, and annulling the sheriff’s deed, &c., from which the plaintiff appealed.</p> <p>The facts, as to the title, as alleged in the pleadings, were proven. It was also admitted that the purchase by Sutton was made for D. M. Stapp, one of the defendants in execution, and that Sutton conveyed to Grimes, the plaintiff in trust for Stapp, who furnished the money to pay the bid at the sheriff’s sale.</p>

Tried below before the Hon. A. P. McCormick. This was a suit for the league of land on which the city of Galveston is situated. A first suit by the same party was before this court; and the judgment of the court below, sustaining a demurrer to the petition, was affirmed by this court.

<p>Appeal from. Grimes. Tried below before the Hon. James R, Burnett.</p>

Tried below before the Hon. A. P. McCormick. The city of Galveston, on the 24th day of May, 1866, made a written contract with certain parties named therein and their successors, under which the Galveston City Eailroad Company was organized and operated. An act of the Legislature was passed, approved October 8, 1866, by which the company was duly incorporated, in accordance with the provisions of said contract.

<p>Appeal from Montgomery. Tried below before the Hon. James Masterson.</p>

Tried below before the Hon. Livingston Lindsay. In addition to the facts contained in the opinion, the papers in the cause contain the following correspondence between the attorney for the appellees, and comptroller of the State, with indorsements: “Austin, Texas, 16th May, 1871. “ Comptroller of the State of Texas : “ Tour applicants, Joseph B. Wygall, Thomas B. Wygall, James S. Wygall, John W. Vermillion, Córela S. Hooper, Henry Hooper, William G. Hagerman, and Sarah…

<p>Appeal from Colorado. Tried below before the Hon. Livingston Lindsay.</p> <p>The facts are sufficiently given in the opinion.</p>

<p>Error from Houston. Tried below before the Hon. L. W. Cooper.</p>

<p>Appeal from Montgomery. Tried below before the Hon. James Masterson.</p> <p>The opinion states the case.</p>

Tried below before the Hon. John B. Rector. Robert Adams executed his note to George Roller, the appellant, for the sum of $7,000, due one day after date, with six per cent, interest from date, dated in July, 1862. In 1865, a credit of $1,400 was entered on the note, and on October 15, 1866, Roller brought suit on it, against Adams, in the District Court of Freestone county, for the balance due.

<p>Appeal from Montgomery. Tried below before the Hon. James Masterson.</p> <p>The opinion states the case.</p>

<p>Appeal from Gonzales. Tried below before the Hon. John P. White,</p> <p>The opinion states the case.</p>

<p>1. Trespass to try title—Purchaser—Vendor and vendee.— A purchaser of land at a trust sale, made under a deed of trust, which was executed by one, the recorded deed to whom retained in terms a lien for the purchase-money notes, which were never paid, does not, acquire such a right as will enable him to maintain trespass to try title against one, who is in possession for a valuable consideration, under the administrator of the original vendor.</p> <p>2. Approved.—Dunlap v. Wright, 11 Tex., 603, approved.</p> <p>3. Vendor and vendee—Land.—When a deed is made reserving in terms alien for the purchase-money, to be paid as specified, in notes given for the land, the vendor has the superior right to the land and to its possession, on default made by the vendee in payment of the notes.</p> <p>4. Land—Purchaser—Vendor and vendee—Subrogation.—B sold land to 0, reserving, in the deed made by him, a lien for the purchase-money, to be paid, as specified, in notes given therefor. The notes were never paid; B died, and 0 conveyed the land to K, who was B’s administrator, receiving in payment his own notes, given to B, and making a deed to K : Held,</p> <p>1. The conveyance from C to K, and the delivery to 0 of the notes for the purchase-money, conferred upon 0 no greater estate than he originally acquired by his deed, nor did it diminish the right of the estate, or of any one legally holding under it.</p> <p>2. Though the notes were delivered up and canceled, the consideration of the deed to C, the payment of which could alone pass the legal title by virtue of said deed, was not, in fact, paid to the estate.</p> <p>3. A sale under a deed of trust, executed by C, before his surrender of the notes, was not affected by said surrender, and the deed made by C to the administrator; but the purchaser at the trust sale, upon paying the original purchase-money due from C, would be entitled to recover the land.</p> <p>5. Although the vendor's lien may be absolute, yet if a mortgage for the purchase-money be given back at the same time, the fee will substantially remain in the vendor.</p>

Tried below before the Hon. J. R. Burnett. January 27, 1873, B. W. Pearce sued the city of Havasota . for damage, alleging the failure of the authorities of the city to keep the streets, &e., in safe condition for traveling, and that, from such negligence, injury had been occasioned to plaintiff; in that, on October 29,1872, while driving his horse and buggy in one of the public streets of said city, his horse slipped and fell, and, while scrambling, rolled into a ditch,…

Tried below before the Hon. James Masterson. The steamboat Henry A. Jones, owned by the defendant, (a corporation, created by the laws of Texas,) loaded at Houston on the 13th February, 1873. The load was chiefly cotton, in bales, and whilst in Galveston Bay, from some reason, fire was communicated to the cotton, or to the vessel. The fire was first discovered about five o’clock in the morning. When first seen, it seems to have been well under way.

Tiled below before the Hon. James Masterson. February 15, 1873, Robinson sued the railway company for damages, for an injury to his foot, caused by the wheel of one of the cars of the defendant running over it, while ho was acting as brakeman, in employ of defendant, on a freight train. The defendant pleaded a general denial, and contributory negligence on the part of plaintiff.

Tried below before the Hon. A. S. Lathrop, special judge. January 8, 1872, D. Gr. Mills brought suit against W. J. Hutchins, for the recovery of a sugar-mill, alleged to be of the value of §3,000, or its value, damages, &c. Mills going into bankruptcy, his assignees, Masterson & Street, were made parties. Plaintiff claimed title to the mill, by purchase of one Brown, who bought from McNeel, who bought of Asa Watt Thompson, on the — day of September, 1867.

Tried below before the Hon. William H. Burkhart. By an act of the Legislature of the State of Texas, approved January 16th, 1858, and taking effect from its passage, the county of Wharton was given power to levy, upon all persons and property in the county, a special tax to aid in the construction of a railroad from Brazoria county to some point in the county of Wharton; and it was provided, (sec. 4,) that if the County Court should fail to levy and collect said tax, the act…

<p>Appeal from Leon. Tried "below before the Hon. John D. Rector.</p>

Tried below before the Hon. A. T. McKenney, special judge. This suit was brought in 1869 by Daniel Daily, against J. y. Bodgers, to recover the value of nine thousand pounds of seed cotton, which Bodgers, by Ms obligation of date October 24,1868, promised to deliver “in good condition at the gin-house of said Daily, in Houston county, on or before the 1st clay of December, A. D. 1869, in part payment of three hundred and seventeen acres of land, part of the headlight of…

Error from Washington. Tried below before Hon.T. B. McFarland. August 24, 1866, Emily Toland, administratrix of the estate of Joseph Toland, brought suit against J. L. Tompkins and his sureties on a sequestration bond, for wrongfully and maliciously suing out a writ of sequestration, under which fifty-two bales of cotton, the property of said estate, had been seized, on November 10, 1865, which was released April 4, 1866. Damages, actual and punitory, claimed at $10,000.

Tried below before the Hon, A. P. McCormick. Boykin brought suit, on the 25th of May, 1873, against Tinsley, on three notes: one for $145, upon which he asked a judgment in personam; one for $291.23, dated August 1, 1872, due one day after date; and one for $497.42, dated August 1,1872, and due February 1, 1874. The two last notes, he alleged, were secured by a mechanics’ lien on the homestead of Tinsley, embracing fifty acres of land.

Tried below before the Hon. JohnB. Eector. The former report of this case, with the opinion in 37 Tex., 146, with the opinion here published, will convey to the professional reader a proper understanding of the case.

Tried below before the Hon. I. B. McFarland. This suit, brought in 1862 by W. W. Browning, was before the Supreme Court at a former term. (37 Tex., 633.) A fall statement of the pleadings and testimony is not deemed material to an understanding of the opinion. In 1834, one Stephens sold to Elisha Roberts one third of a league of land, a portion of which is the land claimed by plaintiff. Afterwards, Stephens conveyed to different parties the rest of the league.

Error from Galveston county, upon a certificate. The character of the motion to set aside the judgment rendered in this ease is stated in the opinion.

Tried below before the Hon. I. B. McFarland. On September 6,1854, G. T. Holman and others conveyed to Thomas S. Foster, by deed, seven hundred acres of land in Fayette county, Texas, and on October 3, 1854, Foster executed to Fred Tate a power of attorney to sell the land. By virtue of this power, Tate executed to Bobert A. Ishe and J. H. Simpson a bond for title to said land, on February 4, 1860.

<p>1. Sheriff’s sale.—A sale of Land made by sheriff, under writ of execution after return-day of the writ, is void, and conveys no title to the purchaser.</p> <p>2. Approved : Towns v. Harris, 13 Tex., 507; and Young «. Smith, 23 Tex-., 600.</p>

Tried below before the Hon. Livingston Lindsay. In 1860, Drury B. Bohanon became the owner of a tract of 328 acres of land in Fort Bend county. He inclosed a field of twenty-five acres; erected four or five cabins thereon; was a single man, and resided with his negroes on the place, cultivating it until September, 1861, when he joined the Confederate army. When he left, he empowered his brother-in-law, Dr. Prince, to sell the land, and to manage his business in Texas.

Tried below before the Hon. A. P. McCormick. The Galveston Hotel Company brought suit against C. L. Bolton, to recover upon the subscription of said Bolton for five shares of its stock, valued at $500 per share. Bolton subscribed for the five shares before the organization of the company. About a month after the date of the subscription, he was called upon to pay the first installment, and promised to do so, but asked indulgence for a short time.