Volume 47 — Texas Reports

Tried below before the Hon. Livingston Lindsay. On the 29th of October, 1859, Martin W. Townsend, in Wharton District Court, recovered judgment against M. S. Stith, for the sum of $1,568.83, bearing ten per cent, interest. Stith appealed, with George Quinan and Jackson Bust as sureties on his appeal bond. In 1864, the Supreme Court affirmed the judgment against the appellant Stith, and his sureties, with damages.

Tried below before the Hon. J. E. Burnett. A. B. Dean, April 2d, 1873, brought suit against Anna M. Crenshaw, widow, and Willie and Elizabeth Crenshaw, minor children of W. L. Crenshaw, deceased, for a house and lot in the town of Havasosa.

Error from Harris. Tried below before the Hon. James Masterson.

<p>Appeal from Freestone. Tried below before the Hon. John P. Hector.</p>

<p>Error from Walker. Tried below before the Hon. J. R. Burnett.</p> <p>This suit was commenced on the 21st April, 1868, by the legal representative of Thomas Carothers, deceased, to recover the title and possession of ‘a house and lot in the town of Huntsville. J. M. Rountree and' J. W. Bowden, being in possession, were made defendants.</p> <p>At the November Term, 1868, Rountree and Bowden appeared and disclaimed title in themselves, and at the same term J. W. Bowden, as guardian of Irene Rountree, intervened and claimed title to one half the property sued for, in right of his ward, and averred that her father, J. M. Rountree, paid one half the purchase-money out of funds belonging to her, and that Carothers in his lifetime held it in trust for her.</p> <p>At the November Term, 1869, Bowden, as guardian of Rene, amended his answer, and set up more fully how the fund was derived, which was invested in said house and lot, and that it was derived from the separate estate of her deceased mother; that one half the purchase-money paid for the property, to wit, §2,500, was hers, and was invested in it by her father, for her benefit, and that although the deed to it was taken in the name of Carothers, it was so taken with the express agreement that one half interest in it was held by him in trust for her, the said Irene, and that the testator of defendant in error, acknowleged her right to one half of the property, and signified his willingness to make title to her, and prayed for a decree compelling defendant in error to make title, &c.</p> <p>At the March Term, 1874, Bowden’s death was suggested; T. W. Markham was appointed special guardian of Irene, and amended the answer further, by averring that in right of his ward, she inherited a large sum of money and personal property; that it all went into the possession of her father, J. M. Rountree;. that he held it in trust for her, and appropriated most of it to his own use after the death of her mother; and that to reimburse her for her interest in her mother’s estate, he invested §2,500 of it in the house and lot in controversy, for her use and benefit, in discharge of so much of his obligations to her; that Carothers in his lifetime well knew the facts, and always admitted them, and her right to one half the property; and that if the purchase was not made with her funds, that it was a provision made for her by her father, by way of advancement, of which Carothers in his lifetime had notice, and agreed to hold for her. At the same term, the former administrator of Carothers was removed, and B. Eastham appointed instead, who by replication denied all the allegations of the answers.</p> <p>On the trial, after the plaintiff had closed his evidence in chief, and after the defendant had examined several witnesses in support of the matters pleaded in his answer, it was announced for defendant, “ that he had closed his evidence for the present; ” and thereupon plaintiff, E. D. Thornton, testified in his behalf, and also read the will of Thomas Carothers, in evidence, and other testimony, to show title.to the whole of the house and lot in controversy. The defendant called J. M. Rountree (one of the original defendants) as a witness, who was sworn, for the purpose of disproving the title set up by the plaintiff, and to show that one half interest therein was held by Carothers in trust for said intervenor, when plaintiff objected to the witness being allowed to testify, on the ground “ that the defendant having closed the evidence in said case,” he could not he allowed to examine the witness for the purpose aforesaid, and also because he was not a competent witness; which objections were sustained, for the reason “the evidence offered was not rebuttal evidence, even admitting the witness to be competent.”</p> <p>There was much and conflicting testimony. The court instructed the jury, after stating the case:</p> <p>“ The deed read in. evidence by plaintiff, from L. C. Bountree to Carothers, vested the legal title. to the property in Carothers, but it is competent for the intervenor to show by verbal evidence, that although the deed was taken in the name of Carothers, yet in fact J. M. Bduntree, at the time, furnished half the purchase money, and part of the property was to be paid or given to his daughter (intervenor) in consideration of money or property of hers used by him, or as an advancement to her; and in such case, Carothers would hold half the property in trust for the intervenor. “ But to estabtablish a trust in intervenor’s favor, the law requires that the evidence must be clear and satisfactory, and such as could be reasonably attainable under the circumstances of the case. The legal title being in Carothers’s estate, a verbal trust, to be enforced, must be established with clearness and certainty; for otherwise, men would have no security that contracts would stand after they had been reduced to writing with the greatest consideration and solemnity. (Cuney v. Dupree, 21 Tex., 219.) But if the evidence, with clearness and certainty, shows a trust in intervenor’s favor, she is entitled to have it enforced under the law. By clearness and certainty, as above charged, is not meant absolute certainty, but the trust should be established with clearness and beyond a reasonable doubt.”</p> <p>The court further charged, that if Bountree paid half the purchase-money, but did só to defraud his creditors, &c., the jury should find for plaintiff.</p> <p>The jury returned a verdict for the plaintiff, on which judgment was rendered. The defendant brought the case by writ of error to this court. The additional facts necessary to an understanding of the case are given in the opinion.</p>

<p>Appeal from Matagorda. Tried below before the Hon. William H. Burkhart.</p>

Tried below before the Hon. J. E. Burnett. This suit was brought by Cyrus Campbell, in trespass to try title, against L. S. Mooring. Campbell alleged a grant to himself, by the then existing Government, of one league of land, the south half of which he still claimed, and that Mooring had trespassed upon it by cutting and carrying away the timber.

<p>Appeal from Victoria. Tried below before the Hon. T. 0. Barden.</p> <p>A statement of the case is given in the opinion.</p>

Tried below before the Hon. H. D. Claiborne. Previous to the 25th of December, 1871, it was agreed between Gustave Schleicher, Fletcher S. Stockdale, and Charles M. Terrill, that they would unite and form the company or corporation afterwards formed and called the “ Cuero Land and Immigration Company,” having its domicile and principal place of business in De Witt county.

Tried below before the Hon. William H. Stewart. Robert F. George, H. J. Larsen, and others, brought suit against Frank Dean, collector of taxes for Galveston county, to enjoin the collection of the following taxes: A tax of one fourth of one per cent., levied by the Legislature in 1873, for the scholastic year ending September 1,1874, for the .purpose of building and repairing school houses; a special tax, levied by the County Court of Galveston county, to pay interest and…

Tried below before the Hon. William H. Stewart. November 27, 1876, Joseph Labadie and twenty-three „ other tax-payers of the county of Galveston filed their petition in the District Court against Frank Dean, the collector of taxes for said county, to enjoin the collection of the following taxes: 1. An ad valorem tax of one fourth of one per cent., levied for general county purposes for the year 1875. 2.

Tried below before the Hon. W. H. Andrews. Ho briefs appear on file in the Supreme Court by counsel for either party. This suit was brought by B. W. & W. M. Campbell, in trespass to try title, against T. C. Everts, to recover land described in an instrument executed by Everts to the Camp-bells.

Tried below before the Hon. I. B. McFarland. TMs suit was brought in trespass to try title, by J. D. Giddings against one Littleton, for a league of land in Burleson county, on the 23d February, 1857, Littleton being a tenant of the appellant, Tacitus Clay. The latter, under the authority of the statute, (Paschal’s Dig., 5296,) averred his ownership and defended the suit; Clay pleaded general denial and not guilty.

Tried below before the Hon. Hardin Hart. On the 7th day of February, A. D. 1854, John Hancock entered into an agreement with J. F. Crosby to perfect title and procure patents to three leagues and two labors of land in El Paso county, Texas. Said Crosby was to have “ a good and perfect title to one fourth of said three leagues and two labors” when patents were obtained for the same.

Tried below before the Hon. John P. Osterhout. Salado College, a corporation, sued Davis for -damages, for overflowing certain springs upon the grounds of the college. On the twenty-eighth day of August, 1863, E. 8.

Tried below before the Hon. J. W. Oliver. A detail of the facts testified to in this case would serve no useful purpose, and would only add another chapter to the curiosities of the law. Over fifty witnesses were examined, most of whom assumed to be familiar with the same facts about which they testified, and one half of them were contradicted by the other. The opinion contains all that is necessary to be stated regarding the facts of the case.

<p>Appeal from Milam. Tried below before the Hon. J. H. Onins.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. John B. Rector. P. J. Willis et al. brought suit against William Davis and James S.. Hanna, upon two promissory notes; one for the sum of $250, bearing date the 6th of November, A. D. 1860, and the other for $2,150, dated June 6, 1861. Bach of said notes was signed by the firm name of Davis, Calvert, Hanna & Hardy.

Error from Austin. ' Tried below before the Hon. Livingston Lindsay. . . This suit was brought in trespass to try title by J.'H. Gatlin against parties in possession. Bennatt, who claimed that the defendants were his tenants, was made a party defendant, a,nd pleaded not guilty, the statute of limitations, and suggested improvements made in good faith.

<p>In 1858 L sold to D, lots, which were the community property of L and his wife, who was then living. D paid part of the purchase-money, and received a bond for title, to be made when the rest was paid. After tiie death of L’s wife, D, who had gone into possession, sold to W, to whom he assigned the bond for title. AY gave Ills note to L for the amount of purchase-money unpaid, and D’s note was delivered up and canceled. Afterwards, in 1863, AY paid the purchase-money note in Confederate treasury notes, to L, who, a few days before, had deposited in the county clerk’s office an unsigned inventory and appraisement of community property, which was approved and recorded. In a suit by the heirs of L’s wife against AAr, to recover half the property, or its equivalent, as their interest in the estate of their mother: Held—</p> <p>1. AYliilc the inventory and appraisement may not have been full, yet from the facts above stated, in connection with the fact that it was indorsed as having been sworn to, by the cleric, and was indorsed, “approved and ordered to be recorded” by the Chief Justice, it may be inferred, that it was returned into court by L, as an inventory and appraisement of the community property, and that it was recognized by the Chief Justice as done by him in compliance with the statute. (Paschal’s Dig., art 4648.)</p> <p>2. Even if L had not filed an inventory and appraisement, still, having sold the lots in the lifetime of his wife, and given a bond for title, and having received part of the purchase-money, and a note for the balance, he had the right after the deatli of his wife to execute a deed in pursuance of his obligation in the bond, and receive the payment of the note executed to him for the rest of the purchase-money.</p> <p>3. The note being payable to L, he could have collected it by a suit at law, and had the land sold in discharge of it.</p> <p>4. There is nothing in our laws which requires a debtor, under such circumstances, to suffer himself to be sued to interpose a defense to the note, and maintain an expensive and uncertain litigation, in order to protect the possible rights of the children of the marriage, against the possible waste of the community effects by the surviving parent.</p> <p>5. A rule which would require the maker of a note to act after its maturity, and before payment, with reference to the equitable rights attaching to it in the hands of every one who may have had it by assignment, would be destructive of the negotiability of such instruments.</p> <p>6. The fact that the payment, of the note was in Confederate . States treasury notes did not prevent it from being a valid payment when made.</p>

<p>Error from Navarro. Tried below before the Hon. T. P. Wood.</p>

Tried below before the Hon. J. M. Lindsay. This suit was brought by M. G. Bush, to the August Term of the Grayson District Court, 1868, against C. H. McCormick & Bros., for an amount of money, which he claimed he was entitled to under and by virtue of a written contract, made in 1859, with C. II. McCormick, executed by McKay, as McCormiek’s agent, for the sale of reapers, and reapers and mowers, to be furnished by McCormick.

. Tried below before the Hon. Robert Taylor. This suit was brought at the Fall Term, 1868, of the District Court of Lamar county, by Peterson, against James Walker and John Finch, to try title to'a tract of 575 acres of land. Walker and Finch were tenants under Cavanaugh, (appellant’s intestate,) and at the October Term, 1868, on a suggestion of that fact, Cavanaugh was permitted to appear and defend.

Tried below before the Hon. John P. White. This was a proceeding instituted on the 3d day of July, 1875, by the district attorney for the county of Guadalupe, to remove John F. Gordon from the office of sheriff, for official misconduct and neglect of official duty.

Tried below before the Hon. E. B. Turner. This was a suit to compel, by mandamus, the defendant J. L. Moore, district clerk, to issue an order of sale upon a judgment rendered in the District Court of Washington county, February 5, A. D. 1875, in favor of one Muse et al. v. Burke, for $1,811.90, gold, with foreclosure of vendors’ lien upon two hundred and eighty-nine and two tenths acres of land. Upon said judgment, an order of sale was issued Ho vein-her 6, 1875.

Tried below before the Hon. J. P. Richardson. The opinion states the case. A number of questions were raised on exception, and presented in the assignment of errors in this case, which were argued at some length on both sides; but since the decision turned on a single point, reference to them is omitted.

Tried below before the Hon. Everett Lewis. In this suit, Mary Jenks, the appellant, after judgment in the court below, attempted an appeal.

Motion to vacate a judgment of the Supreme Court. The judgment sought to be vacated was rendered seven years ago, a,nd in a suit instituted by Milam county, to recover certain school lands. The record discloses the following facts: 1.

Tried below before the Hon. J. P. Osterhout. This ease was before the Supreme Court at a former term, under the title of Flemming v. Eeed, 87 Tex., 152. The administrator of Michael Eeed’s estate sued for title and partition, claiming one half of a quarter of a league of land patented in the name of Joseph West. The defendant, A. J. West, was sole heir of Joseph West, and Flemming and others were purchasers, and claiming under conveyance from A. J. West.

Tried below before the Hon. J„ P. Richardson. This is one of a large number of suits brought under “An act to ascertain and adjudicate certain claims for land against the State, situated between the Nueces and Rio Grande rivers,” approved August 15, 1870, (Paschal’s Dig., art. 7068.) The first section of the act will be found in the statement of the succeeding case. (State v. Cuellar, post, 295.) Sections 2 and 6 of the same act are as follows, viz: “ Seo. 2.

Tried below before the Hon. J. P. Bichar dson. The facts are given in the opinion. This was one of a number of suits involving land, brought under “An act to ascertain and adjudicate certain claims for land against the State, situated between the Nueces and Eio Grande rivers,” approved August 15,1870. (General Laws, Called Session, 1870, p. 201; Paschal’s Dig., art. 7068.) Section one of said act is as follows : “ Seo. 1.

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p>

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p>

<p>1. Grant void for want of jurisdiction over the territory. —The Governor of Tamaulipas had no authority to extend final title to land east of the Eio Grande, January 2, 1848, under the treaty of Guadalupe Hidalgo.</p> <p>2. Same.—The grant o£ such title by the Governor had no effect upon the rights of the grantee.</p> <p>3. Want op evidence op date op title, &c.—Evidence of a survey and such void grant, affords no evidence of title. There being no evidence showing that the title had its origin anterior to December 19, 1836, nor showing the right of claimant to the land, the evidence is insufficient under the act.</p> <p>4. Secondary evidence.—Verbal evidence of the contents of the archives of the proper alcalde, to the existence and contents of xxdiich the alcalde having custody of the original archives should certify, is incompetent evidence of title founded on such record.</p>

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p>

<p>1. Grant.—A certificate of the Secretary of State, in the State of Tamaulipas, on May 11,1831, that in a list of names of persons who had denounced lauds as recognized by the Government there was one as follows: “Without survey on the other side of the Rio Grande. Sitios 4. The citizen Santiago Vela, in the estancia of said Ygnacio. City of Guerrero, 14th February, 1831,” is of itself no part of the proceedings in a title to land.</p> <p>2. Grant—Expediente—Evidence.—Verbal testimony of the existence and contents of an expediente as part of a title to land claimed in proceedings under act of August 15, 1870, held incompetent.</p>

Tried below before the Hon. Hardin Hart. This is an action of trespass to try title to 160 acres of land in Tarrant county. G-. W. Nichols et al., who were plaintiffs in the court below, claimed as the children and heirs at law of Gyrene Cockrell, the patentee. H. Calloway et al., who were defendants below, claimed as vendees of Nichols et al., when minors, at a guardian’s sale of their property, for a full consideration paid the guardian.

<p>Appeal from Blanco. Tried below before the Hon. J. H. Everett.</p>

Tried before the Hon. R E. Gaines. This case is one in which both parties appealed; and though with much force and ability each argued against the enforcement of a judgment, it was affirmed notwithstanding.

Tried below before the Hon. J. P. Richardson. On the 23d of January, 1872, H. Olay Pleasants, as administrator of the estate of John York, deceased, brought suit against Matthew Dimkin et al. and the heirs of said York, deceased, to obtain possession of 1476 acres of land in Bastrop county, patented to the heirs of George W. Davis, deceased. The petition alleged disseizen, use, and occupation by the defendants, and prayed for judgment for the land, for rent, and damages.

Tried below before the Hon. X. B. Saunders. J. W. Oliver owed appellant $751, and, on August 7,1874, Mayman sued out an attachment in Falls county, and had the same levied upon twelve barrels whisky, three barrels molasses, and three boxes tobacco, the property of J. W. Oliver. After the levy of this attachment, Oliver died.

Tried below before the Hon. Henry Maney. J. B. Rector, as administrator of R. H. Grimes, deceased, in his annual report of 1873, asked directions of the court below as to the manner of the distribution of the estate among the creditors.

Tried below before the Hon. George H. Eoonan. On the 22d of April, 1859,1. A. & G. W. Paschal executed their joint and several promissory note to William McLane, for $7,000, due in twelve months, with twelve, per cent, interest. On the same day, the Paschals, with the appellee, Mary 0. Paschal, wife of the said I. A. Paschal, to secure the payment of the indebtedness, executed and delivered a trust deed.

Tried below before the Hon. George H. Hoonan. This was a suit brought by A. C. Meyers, against the estate of E. Abat, to recover the amount of a note for $3,000, dated May 8,1862, and payable.in three years. After Abat gave the note, he made a will, and died, leaving his wife executrix, independent of the control of the Probate Court. She had the will probated, filed the inventory, and did what was necessary to administer the estate without regard to the Probate Court.

Tried below before the Hon. Spencer Ford. This case was submitted upon an agreed statement, under the rules adopted January 18,1877, at Galveston. The facts are given in the opinion.

<p>Taxation—Constitutional law.—The general tax law of 1S73 provided, among other things, “that there shall be levied and collected from every person, firm, or association, pursuing any of the following-named occupations, an annual tax (except when herein otherwise provided) on every such occnpatiomor separate establishment, as follows, viz: For selling spirituous, vinous, malt, and other intoxicating liquors, in quantities less than one quart, two hundred dollars: Provided, That this section shall not be so construed as to include wines or beer manufactured in this State, or when sold by druggists for medicinal purposes: And provided further, That this section shall not be so construed as to authorize druggists to sell spirituous or intoxicating liquors, except alcohol.” Appellants procured an injunction to restrain the tax collector from collecting an occupation tax levied on them for selling spirituous, vinous, malt, and other intoxicating liquors in quantities less than a quart, alleging that the wines and malt liquors sold hy them were not of Texas manufacture.</p> <p>1. That the statute is repugnant to the fourth paragraph of the eighth section of the first article of the Federal Constitution and to the second paragraph of the tenth section of the same article.</p> <p>2. Discussed.—The case of Welton y. The State of Missouri, 1 Otto, U. S. Rep. S. C., 275, discussed, and the conclusion arrived at, that if there be any difference in the statute of the State of Missouri, which gave rise to that decision, and the statutes of Texas under which the taxes complained of were levied, it is in degree and not in principle.</p> <p>3. The fact that appellants were engaged in selling spirituous liquors, as well as vinous, malt, and other intoxicating liquors not the product of the State, and that there is no pretense that the law makes any distinction as to spirituous liquors, cannot affect, the question involved. It would be otherwise if the court could separate the constitutional from the unconstitutional part of the statute, so as to give effect to the former without doing violence to the intention of the Legislature; but the tax for the license is indivisible. The license is for the exercise of a single and individual occupation, though different articles may be sold by those to whom license is granted, and the courts cannot, without exercising legislative powers, say that the same amount should be paid for selling spirituous liquors as for selling" spirituous, vinous, and malt liquors.</p>

<p>Appeal from Galveston. Tried below before the .Hon. W. H. Stewart.</p>

<p>Appeal from Galveston. Tried below before the Hon. A. P. McCormick.</p>

Tried below before the Hon. O. C. Binckley. H. 0. Ferguson brought an action in trespass to try title for one town lot, in the town of Decatur, against Halsell.

Tried below before the Hon. Joah H. Banton. On the 23d day of November, 1865, William Jackson recovered judgment against John B. & I. H. Earle, for the sum of $6,752.55. On the 30th day of November, 1865, a certified transcript of this judgment was filed for record in the office of the county clerk, and recorded the 16th of March, 1866. JohnB. Earle departed this life; but before and at the time of his death, he and his co-defendant, I. H. Earle, were both insolvent.

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

Tried below before the Hon. E. B. Turner. September 19, 1876, Whitfield Chalk brought suit in the Travis District Court against S. H. Darden, Comptroller of the State of Texas, asking for a writ of peremptory mandamus, to compel that officer to issue to plaintiff a pension certificate as a Mier prisoner, under an act granting pensions to the Santa Fe and Mier prisoners, &e., approved April 21,1874.

Tried below before the Hon. George H. Hoonan. Adele Le Compte, December 11,1860, brought trespass to try title against Jacob Linn, for a lot in the city of San Antonio. Pending the suit, plaintiff sold to her sister, Maria Le Compte, who thereafter prosecuted the suit as plaintiff.

Tried below before the Hon. George H. ifoonan. June 7, 1867-, Vicenta Edmonds, joined with her husband and Manuel Ytuni Castille, brought suit against William B. Jaques, alleging that on December 18,1852, Ira L. Hewitt, for use, &c., obtained a judgment in the District Court of Bexar county, against the administratrix of the ancestor of plaintiffs and said Jaques, for §1,773 and interest, costs, &c., as sureties, and that on October 24,1862, plaintiffs being sole heirs, &c.,…

(Associate-Justices Moore and GouLd, having been of counsel, were disqualified. This fact was certified to the Governor, who appointed Charles S. West and William M. Walton special justices for the trial and determination of this cause.) Special Court: Roberts, Chief Justice ; West and Walton, Associate Justices. Appeal from Eavarro. Tried below before the Hon. F. B. Wood. The facts are given in the opinion. Ho brief for appellants came to the reporters.

Error from Medina. Tried below before the Hon. J. J. Thornton.

Error from Collin. Tried below beforé the Hon. W. H. Andrews. This was an action of trespass to try title, brought by W. F. Harrison against Few ton Taylor and Peter It. Wallis, for 500 acres of land, part of the H. E. survey of Thomas Jouett, in Collin county.

<p>Appeal from Hamilton. Tried below before the Hon. John P. Osterhout.</p> <p>The facts are given in the opinion.</p>

<p>Error from Erath. Tried below before the Hon. J. P. Osterhout.</p>

Justices Moore ancl Gould, having been of counsel, were disqualified. This was certified to the Governor, who appointed Charles S. West and Alexander S. Walker special justices for the trial and determination of this cause. Special court. Egberts, Chief Justice; West and Walker, Associate Justices. Error from Bobertson. Tried below before the Hon. John B. Bector. The facts are given in the opinion.

Tried below before the Hon. W. H. Andrews. This suit was commenced by Charles Lewis, appellee, on the 24th of October, 1866, against Mary A. Alexander, executrix, and Simon B. Allen, Samuel A. Roberts, and'John W. Fraley, executors of the last will and testament of C. C. Alexander, deceased, and Josephine Alexander, executrix of A. M. Alexander, deceased, late partners, doing business under the name and style of A. M. & C. 0.

Tried below before the Hon. George H. Hoonan. On the 4th of June, 1857, Asa Mitchell executed a promissory note for $3,000, payable to William McLane, due on the 4th day of January, 1859, with twelve per cent, interest, payable annually, secured by deed of trust on certain lands in Bexar.

<p>Appeal from Travis. Tried below before the Hon. J. P. Bichardson.</p> <p>The opinion states the case.</p>

<p>Appeal from Bell. Tried below before Hon. J. P. Osterhout.</p> <p>This was a suit brought by Sabrina Harris and her husband, Mrs. Lucy M. Hendricks and husband, Charles L. Hendricks, Edward T. Beed, and Elizabeth Berry and husband, Thomas B. Berry, and the widow and children of Michael Beed, deceased, against Elizabeth Beed, widow, and ■ John M., Francis B., Mollie, Sallie Lee, Davis B., and Lilly Beed, children of said Elizabeth Beed, for partition of the estate of John B. Beed, deceased. The plaintiff's were children of a former marriage, and claimed partition against the children of the second marriage "and their mother, of “ a large estate of community, real, and personal property,” consisting of a tract of 1,137 acres land, money, horses, cattle, hogs, &c.</p> <p>The testimony showed that John B. Beed married in Tennessee, Elizabeth Truit, the ancestor of plaintiff's, and removed to Mississippi, where she died in 1849, leaving plaintiffs, Mrs. Harris, Hendricks, Berry, Michael, (whose descendants are plaintiff's,) and E. T. Beed, her heirs. Elizabeth Truit Beed received from her father and his éstate several valuable slaves and some money. Her husband was poor at their marriage. About six months after the death of Elizabeth Truit Beed, John B. Beed intermarried with the defendant Elizabeth Harris, and soon thereafter the family moved to Texas, bringing with them fifteen or twenty negroes, the same and descendants of those received from the father of the first Mrs. Elizabeth Reed, and several thousand dollars money, the proceeds of the labor of the slaves so received by the first wife from her father’s estate.</p> <p>On their arrival they settled on a tract of about 2,000 acres in Bell county, which the father of John B. Reed, supposing himself to own, had given his son. From time to time, and as early as in 1850, John B. Reed gave to his children by his first wife, by parol, each about 200 acres of this tract so received from his father. The value, at the date the possession of the several advancements was taken, of the land was but nominal, the country being on the frontier of Texas. The entire tract, however, conflicted with the eleven-league grant in name of Maximo Morino, which finally was adjudged superior to the Reed title; and in 1865, John B. Reed bought in the Maximo Morino title for the entire tract, at five dollars per acre. On perfecting his title, he either deeded or caused deeds to be executed to his children for the lands he had theretofore allowed to them; the lands in 1865 costing him about §2,000 for each of the children to whom he deeded land.</p> <p>There was much conflict of testimony as to the value of the home tract of land, of about 1,137 acres, sought to be partitioned, the witnesses for plaintiffs placing it at twenty-five dollars per acre, and witnesses for defendants at ten dollars.</p> <p>The plaintiffs’ witnesses also testified to facts showing that the deceased left from §20,000 to §25,000 in money, principally gold coin, at his death: the defendants allowed only a small sum—between two and three thousand dollars—which they also established by testimony.</p> <p>The other proceedings had in the court below are sufficiently shown in the opinion. The jury found a verdict for defendants. A motion for new trial was overruled, and defendants appealed. Before the trial below, two of the plaintiffs withdrew from the suit.</p>

<p>Appeal from McLennan. Tried below before the Hon. Joab H. Banton.</p> <p>The facts are given in the opinion. '</p>

<p>Appeal from McLennan. Tried below before the Hon. J'. H. Banton.</p>

<p>1. Constitutional law—Construction op statute.—The act of Legislature, approved September 5, 1850, entitled “An act to incorporate the San Antonio and Mexican Gulf Railroad,” is unconstitutional, in so far as in its 12th section it provides that the city of San Antonio, and the towns upon the line and at the terminus of the road on tire Gulf, may issue bonds to aid in the construction of said railroad, because it embraces a distinct object not expressed in the title to the act.</p> <p>2. Same.—The authority sought to be given in the 12th section of said act, upon certain cities named, (to issue bonds, &c.,) is not included in the caption of said act, and, therefore, conflicts with section 24, article 5, of the Constitution, prescribing that “every law enacted by the Legislature shall embrace but one object, and that shall be expressed in its title.”</p> <p>3. Same.—History and discussion of the said section 24, article 5, of the Constitution of 1845.</p> <p>4. Same.—This article of the Constitution is mandatory. While this has been regarded as the settled rule of construction, in this State, ' in its application the most liberal construction has been given, to make the whole law constitutional, where the part objected to as infringing this provision of the Constitution could be considered as appropriately connected with, or subsidiary to the main object of the act, as expressed in its title.</p> <p>5. Approved.—City of San Antonio v. Gould, 34 Tex., 49, approved.</p> <p>6. Pleading.—A petition, seeking to recover on bonds and interest thereon, issued by the city of San Antonio, under the 12th section of the said act of September 5, 1850, is subject to demurrer; and the action of the court below, sustaining such demurrer and dismissing the suit, is affirmed.</p>

<p>Appeal from Nueces. Tried below before the Hon. T. C. Barden.</p> <p>The facts are carefully stated in the opinion.</p>

Tried below before the Hon. George H. Noonan. Asa Mitchell’s executors had recovered a judgment against I. P. Simpson, as guardian of the Post minors, and had, on May 6, 1873, obtained an order from the District Court, sitting in matters of probate, directing the guardian to pay the same. On May 31, 1873, the executors filed their petition in the District Court, praying that certain real property described in their petition be sold to pay their judgment.

Error from El Paso county. Tried below before the Hon. S. B. Newcomb. This is an action of trespass to try title, brought by Schütz, for two small lots of land, claimed under transfers from Juan Ponce de Leon, who held under a conveyance, made in 1827, by the municipal authorities of El Paso.

<p>Appeal from. Travis. Tried below before the Hon. J. P. 'Richardson.</p> <p>July 23,-1873, the State brought suit, in the-Travis District ■Court, against W. H. Morris, as sheriff and collector of McLennan county, and his sureties on his official bond, for certain balances alleged to be due from said Morris, as collector of taxes.</p> <p>The breaches of the bond, as alleged in the petition, were as follows:</p> <p>“ 1st. That after the execution thereof, as aforesaid, the said defendant Morris, as such sheriff, as aforesaid, became chargeable with, and received and collected of money due the plaintiff for the year 1870, the sum of $7,769.66, and has failed, refused, and neglected to pay over and account for a large sum thereof, to wit, the sum of $1,487.66, which last sum, with interest and ten per cent, damages, is due plaintiff" from .defendants.</p> <p>“2d. That after the execution of said bond,.as aforesaid, the said defendant Morris, as such sheriff" became chargeable with, received, and collected of money due the plaintiff for the year 1871, the sum of §36,013.95, and has wholly failed, neglected, and refused to pay over and account.for a large amount thereof, to wit, the sum of §14,384.85, which last-named . sum, with interest and ten per cent, damages, is due from plaintiff to defendant.”</p> <p>The defendants demurred, and, by amendment, plaintiff filed, as part of petition, a certified copy of the bond of the defendants, and corrected the statement of the amounts due for each year in which the alleged default occurred, and claimed §2,000, on account of taxes collected by Morris, for the year 1872.</p> <p>The defendants pleaded payment, and insisted that so much of the account charged on account of frontier bond tax for 1870, being an illegal tax, could not be collected, and that as to so much as was charged on account of fees and commissions for justices for 1871, the tax having been repealed, the collector was relieved from its collection, and urged various objections to other items appearing on the comptroller’s account.</p> <p>The defendants proved payment of §4,309, after suit had hecn instituted. A delinquent list was allowed.</p> <p>The jury found a verdict for the State, and the court rendered judgment for ten per cent, additional, as damages. The defendants appealed.</p> <p>The discussion of the case and the opinion show all necessary facts.</p>