Volume 48 — Texas Reports

<p>1. School lands—Constitutional law.—Section 8 of article 6 off the Constitution of 1869, (“The public lands heretofore given to counties shall be under the control of the Legislature, and may be sold under such regulations as the Legislature may prescribe; and' in such case the proceeds of the same shall be added to the public-school fund,”) without legislative action, did not divest the counties of the title to school lands which had been granted to them.</p> <p>2. Same.—In a suit brought in the name of the State, by the district attorney, against parties holding school lands under lease from the county holding patents therefor, it was error to instruct the jury, “ that the school lands were a part of the general school fund, and-that the State was entitled to recover, if the lands sued for were county school lands.”</p> <p>3. Discussed and limited.—Galveston County v. Tankersley, 39 Tex., 656, discussed and limited.</p>

' Error from Anderson county. Tried below before the Hon. M. H. Bonner. Schmidt & Zeigler, on the 5th of July, 1873, filed in the District Court of Anderson county a complaint, denominated by their attorneys a motion, against Julius W. Robinson, sheriff of Smith county, and against Ed. Sharp and five others, his sureties on his official bond.

<p>1. Pleading—Practice—Practice in Supreme Court—Trusts. —A brought suit against B and wife on a promissory note secured by deed of trust on land, and, the trustee being dead, prayed the court to appoint a trustee to execute the trust, and for judgment on the note. Defendants, after a general denial, pleaded that the property conveyed in trust was a homestead when their deed was made, and that it still remained such; to which plea the court overruled exceptions filed by plaintiff. A judgment was rendered for plaintiff, for the amount of the note; but neither in it nor in the charge, nor verdict, was any reference made to the trust; and the ease was appealed, without statement of facts or bills of exception. In the judgment, the following recitation occurs: “ And now come the parties by their attorney; and thereupon the court refused to appoint a trustee; to which ruling of the court plaintiff excepts, and gives notice of appeal. Thereupon came a jury,” &c.: Held—</p> <p>1. The record failing to show that an issue had been settled, upon which the rights of the plaintiff to have a trustee appointed depended, there was no error in the court failing to appoint one.</p> <p>2. The plea setting up homestead rights will not he considered by the court, because, whether right or wrong, since it was waived or not relied on by either party at the trial, it became an immaterial issue.</p> <p>3. Facts cannot be regarded as established when not incorporated in the record, so as to enable the court to revise them as substantive parts of it.</p> <p>4. The Supreme Court will not decide upon questions arising upon an issue made by a plea, which plea, upon exceptions, is sustained, when the issue thus made is waived upon the trial, and not passed on by the jury.</p>

Tried below before the Hon. B. S. Walker. This was an action of trespass to try title, instituted on the 13th day of March, A. D. 1871, in the District Court of Cherokee county, by E. J. Ricketts and his wife, Angelina Ricketts, plaintiffs, against Mary A. Woolfolk, defendant, for the. recovery of fourteen acres of land,'east of and adjacent to the town of Rusk.

<p>Error from San Augustine. Tried below before the Hon. George Lane.</p>

Tried below before the Hon. James H. Rogers. July 2,1873, Mary A. Grigg, Richard B. Grigg, and John H. Grigg, by W. C. Batte, their next friend, brought suit in the District Court of Titus county against David Yancy, Sr., W. H. C. Yancy, David Yancy, Jr., and L. W. Yancy, for one half interest in a tract of 1,000 acres of land claimed by the defendants.

Tried below before the Hon. Green J. Clark. Cave J. Hurley, as the heir of Thomas N. Hurley, deceased, brought suit at the December Term, 1872, of the District Court of Hopkins county, against E. H. Barnard and others, to recover a tract of 307 acres of land. The defendant claimed title under a deed from Roane, the administrator of the estate of T. N. Hurley, made, as was claimed, in pursuance of an order of the Probate Court of Hopkins county, at the February Term, 1857.

<p>Appeal from Shelby. Tried below before the Hon. A. J. Booty.</p>

Tried below before the Hon. George Lane. This is a suit instituted by Wm. T. Parker et al., as heirs of Mary Tuttle, deceased, against Amanda Andrews, to remove cloud and try title to 160 acres of land, situated in Panola county, it being a part of Daniel Tuttle’s league.

Error, from Anderson. Tried below before the Hon. E. S. Walker. This was a suit by Davis & Bro. against W. H. Bowen, upon three promissory notes, and to foreclose a mortgage upon a lot in the town of Palestine. Selie E. Bowen, wife of defendant, intervened, claiming the lot as part of the homestead.

Tried below before the Hon. R. S. Walker. B. Hardeman & Son, November 17, 1873, sued, by attachment, defendant Morgan, for balance of $126.30 gold, on a loan of $150 gold, made by plaintiffs to defendant. The attachment was levied on 11,138 pounds seed cotton, the property of defendant. May 25, 1875, defendant denied the indebtedness under oath.

<p>1. Vendor’s lien—Practice.—A remote purchaser, in possession of land against which it is sought to enforce the vendor’s lien, is properly joined as defendant with the maker of the note sued on and secured by the lien. Being a party, he can defend by showing, if he can, that he is a purchaser without notice of the lien, and by urging whatever defense of law or fact the maker of the note could. He can also appeal or prosecute a writ of error, regardless of the acts of the maker of the note.</p> <p>2. Note payable on contingency.—A note payable on contingency, that lands, for which it is in part payment, should be recovered by the payee of the note, becomes payable upon the surrender of the land by the adverse claimant; and it does not affect the note, either as to its validity or its securities, that it was assigned to the adverse claimant in consideration of its release.</p> <p>3. General exceptions—Pleading.—In passing upon the sufficiency of the-petition, under general exceptions, it must be held by the court that everything is alleged properly which is embraced in the allegations made, upon a reasonable construction of their import, as aided or explained by that which appears in exhibits pertinent to the issues made.</p> <p>4. Exhibits.—The use and purpose of an exhibit is to set forth, in detail, that which is alleged in more general terms, or to embody in the record such facts as will, in legal effect, amount to the facts as alleged in the petition, or to aid the allegations in fixing more accurately and definitely their import; but not to supply the omission or allegations necessary to present a good cause of action.</p> <p>5. Vendor’s lien.—That an obligation for balance of purchase-money for land, payable on condition of the establishment of title against an adverse claimant, has been assigned to such adverse claimant in satisfaction of his claim, does not affect the lien, as upon the entire -interest in the land sold.</p> <p>6. Practice.—Where an agent conveyed land of his constituents, in a suit to enforce the vendor’s lien for the purchase-money in such sale, the admission of a deed by said constituents ratifying the act of the agent, not recorded without proof of execution, while erroneous, still, being immaterial, the admission is not cause for reversal.</p> <p>7. Evidence of pendency of suit.—Where it is in issue, whether a suit be pending for the recovery of land, to negative the existence of such suit, the record of it, with order of dismissal, is evidence, but not of any fact appearing in the record.</p>

<p>Appeal from Anderson. Tried below before the Hon. E. 5. Walker.</p> <p>This suit was brought in April, 1873, in the District Court of Anderson county, against George D. Kelley, George W. Whitmore, and others, as sureties on Kelley’s official bond.</p> <p>The case seems not to have been managed in the court below by the counsel who conducted it in the Supreme Court. Indeed, the amended answers of Whitmore and his co-sureties are signed by the parties themselves “by attorney,” the name of the attorney not being given; and they well sustain, in the number of pleas filed, the defendant’s side of the “ mutual altercations ” between the parties.</p> <p>1. The petition alleged, that George Kelley was elected sheriff on the 1st, 2d, and 3d days of December, 1869, (and had left the State,) and that he gave the bond sued on on the 26th of October, 1870, with Taylor, Hunt, and Whitmore as his sureties. Attached, as an exhibit, was a specification by Whitmore, of the property owned by him, and an affidavit by him that he was worth, above all liabilities, in property subject to execution, the amount for which he was liable on the bond.</p> <p>The bond is conditioned, that Kelley will perform all the duties imposed on him bylaw (while in office) and by the instructions of the comptroller for the collection of taxes, and “ shall collect, account for, and pay over at the State treasury all moneys collected by him, due the State on account of State taxes.”</p> <p>A copy of the bond was made an exhibit, showing it to be recorded, by the district clerk of Anderson county, 1st of November, 1870. The copy of the bond was certified to by the comptroller on the 27th of March, 1873.</p> <p>2. The petition charges, that Kelley, as sheriff, during the years 1871-2, collected of the school taxes assessed for those years, on the taxable property of the county of Anderson, $15,208.11.</p> <p>3. That Kelley had paid John 8. Shuttuck of that amount $9,208.11.</p> <p>4. That John 8. Shuttuck was and is the treasurer of the board of school commissioners (altered by amendment to “directors”) for the county of Anderson.</p> <p>5. That said treasurer, as such, had the right to demand and receive and receipt to said sheriff for all said taxes collected by him.</p> <p>6. That it was the duty of said sheriff, made so by law, to pay the school taxes to said treasurer.</p> <p>7. That said Kelley was so instructed by the comptroller and by the superintendent of public instruction, He Gress.</p> <p>8. That though Kelley was often requested to pay said treasurer said money collected during said years, he had failed to pay the same, except $9,208.11, and refused, &e. .</p> <p>9. To damage of plaintiff $10,000.</p> <p>10. That Kelley had appropriated to his own use, and embezzled, in Anderson county, in 1872, $6,000 of said money collected, and had left the State.</p> <p>11. That said sureties have failed to pay said $6,000 so appropriated by Kelley.</p> <p>All of the defendants’ sureties were served with process. The answer of Whitmore and Hunt, filed August 6,1873, pleaded—</p> <p>1. General exceptions.</p> <p>2. Special exceptions: 1st That Kelley was not made a party defendant. 2d. That the petition shows a larger amount collected on the bond than sureties were liable for.</p> <p>3. A general denial, &c.</p> <p>Special pleas: 1st That at the date of the bond there was no school law. 2d. That the $9,208.11 was paid to avoid suit.</p> <p>An amended petition of March 31,1874, contained—</p> <p>1. A statement that the admission of payment of $9,208.11 made in original petition was a mistake.</p> <p>2. A prayer for judgment for $8,000.</p> <p>In February, 1877, it was suggested that Whitmore had died in October, 1876, and Swan, his administrator, was made a party.</p> <p>At this stage of the proceedings, the court sustained defendants’ exceptions; the State appealed; and in 1875, at Tyler, this judgment was reversed and remanded. (43 Tex., 667.)</p> <p>Justice Ireland, on that appeal, held, in substance: 1st. That the taxes collected-were not county taxes proper, for which a bond to the county should be given, but State taxes covered by this bond. 2d. Their being increased, or additional taxes, by a law enacted after bond was given, is no defense to this action.</p> <p>A “supplemental” petition, filed February 7, 1876, alleged—</p> <p>1. That when suit was brought, Kelley was out of the State; that he returned on the 26th of January, Í876; that he was residing in Anderson county. It asked that Kelley be made a party, and that process issue for him, and for judgment against him as well as the other parties, as prayed for in original and amended petitions.</p> <p>Kelley’s answer, filed May 22, 1876, contained—1st. A general exception. 2d. General denial. 3d. Adopted the answers of his co-defendants in every respect.</p> <p>Scire facias was issued, and served on Swan, administrator of Whitmore.</p> <p>Another answer of Kelley, filed May 31,1877, pleaded—</p> <p>1. That he had paid all the tax-money collected as sheriff, and exhibited: 1st. Receipt of W. FT. Smith, justice of the peace of Precinct No. 1, for $266.71, dated February 2, 1872, tor assessing in 1871. 2d. Receipt of Shuttuck, for $6,500, part of school tax, January 2, 1872. 3d. Receipt of Wood & Williams, approved accounts, &c., $112.64.</p> <p>2. And that the balance collected by him had been paid to the proper officers.</p> <p>A denial and exceptions of plaintiff to the plea of payment, filed May 31, 1877, contained—</p> <p>1. General exceptions.</p> <p>2. Special exceptions, which were: 1st. That the persons and items were not shown. 2d. That the items in Wood & Williams’ receipts were not valid offsets.</p> <p>3. A general denial of facts in the plea of payment.</p> <p>The exceptions and plea of Taylor, Hunt, and Swan, administrator of Whitmore, filed May 31, 1877, contained—</p> <p>1. A plea that the court had no jurisdiction, and that suit should have been brought in Travis county.</p> <p>2. Special exceptions, which were: 1st. That the sheriff had no authority to collect the school tax; that he was not the collector of them. 2d. That the law for the collecting of the school tax was unconstitutional. 3d. That said tax was a new and distinct burden on the sheriff, after the contract of suretyship was made. 4th. That said collection was not a duty upon the sheriff by law, according to the condition of the bond.</p> <p>3. Exceptions general: That the petition did not charge any breach of said bond, in this: that the bond required him to pay to the State treasurer, which breach was not alleged.</p> <p>4. Exceptions special again, which were: 1st. That the petition did not state amounts collected in 1871, and the same plea as to 1872. 2d. That the petition did not state what school tax was collected; by whom assessed; and the amount per cent, of said tax. 3d. That it did not state the items of tax collected; from whom collected, or what time collected; and that it was vague, indefinite, and not sufficient.</p> <p>At this stage the court ruled on the exceptions of the 31st of May, 1877; overruled exception to. jurisdiction, and third exception, last above, as to items, &c.; sustained as to first and second exceptions, last above, as to amounts in 1871 and 1872.</p> <p>Plaintiff had leave to amend, and after amendment the petition was sustained.</p> <p>June 1, 1877, other counsel came in, and a new start was made in pleading over.</p> <p>Defendants presented a plea of the statute of limitations, claiming that the suit was not brought within four years from the time Kelley failed to pay over the money.</p> <p>An amended petition, of June 1,1877, averred that Kelley, the sheriff, collected the one per cent, school tax, as alleged in original petition; that he had failed to pay the same to Shuttuck as charged, and had failed to pay the same over at the State treasury, as it was his duty by law, &c., under the rules prescribed by the regulations of the board of education for the government of public schools, to pay it to Shuttuck, the treasurer of the board of school directors of Anderson county; and that said regulations were the law, and binding on the sheriff".</p> <p>Exceptions of defendants were filed 1st of June, 1877, containing—</p> <p>1. A general exception to the amended petition, filed 1st of June, 1877.</p> <p>2. Special exceptions, as follows: 1st. That the regulations of the board of education did not require or bind the sheriff to pay to Shuttuck. 2d. That they were not the law of the land. 3d. That they could not change the terms of bond requiring him to pay it to State treasury.</p> <p>Another amended petition set forth—</p> <p>1. That Kelley never made any report or return of the school tax so collected, as charged.</p> <p>2. That if made, it was lost by Shuttuck, the treasurer, and also secretary of the board of school directors of Anderson county.</p> <p>3. That said tax was assessed, as charged in the original petition, by the board of school directors of Anderson county, according to law and directions of State board of education.</p> <p>4. That the book or memorandum of said" assessment of said tax by Shuttuck, treasurer, as charged, was lost by him, and cannot be produced by plaintiff.</p> <p>5. That therefore plaintiff cannot state the particulars as to exact time of assessment, or bill of particulars as to amounts collected; and prays court to hear proof, and for judgment as in original petition.</p> <p>Exceptions of defendants to amended petition, filed 1st of June, 1877, were filed, containing a general exception and a special exception, “ because it was not stated at what time Shuttuck lost the book, nor where he lost it.”</p> <p>An amended-answer of the sureties, of June 1, 1877, was filed, setting forth—</p> <p>1. That if Kelley collected as charged, it was not by virtue of his office, but as a trespasser, because he was never made the collector by any legal body.</p> <p>2. That it was not a duty imposed on him by law, or by the instructions of the comptroller, as prescribed by the bond.</p> <p>3. That he collected under an unconstitutional law.</p> <p>4. That the assessment was made in an unconstitutional manner.</p> <p>5. That at the time of the date of" the bond, the sheriff was required to collect ordinary State revenue, to secure which the bond was executed by defendants, as sureties, and it covered that only; that on April 22 and 24, 1871, this extraordinary new and illegal tax was provided, which was illegally assessed; that it was double the previous tax;' that it was not contemplated in giving the bond, and defendants never consented to the increased responsibility.</p> <p>Another amended answer, 1st of June, 1877, alleged—</p> <p>1. That Kelley, as sheriff, gave another and special bond for the collection of said school tax, by directions of the board of education, on the 26th of July, 1872, which was recorded and approved by the proper officers on 1st of August, 1872.</p> <p>2. That the sheriff’s default, if any, was after 26th of July, 1872.</p> <p>General exceptions were presented to the answer and amended answer of June 1, 1877.</p> <p>Upon the exception to amendment of plaintiff of the 1st of June, 1877, the court overruled the exceptions. Thereby the petition and amended petitions were sustained, as presenting a cause of action.</p> <p>Upon the exception of plaintiff to defendants’ amended answer, filed June 1,1877, the exceptions were sustained, “ except so much as sets up giving a new bond.”</p> <p>The case was submitted to the jury, who rendered a judgment for plaintiff for $6,910.49, and costs, from which Swan, administrator, appealed.. The statement of facts is quite voluminous, and it is not believed, in view of the opinion, that any further reference to it is necessary.</p> <p>A motion for new trial was made—</p> <p>1. For alleged error in overruling demurrer and exceptions urged in exceptions filed 31st of May, 1877.</p> <p>2. For overruling demurrer to jurisdiction.</p> <p>3. For admission of testimony. (No bill of exceptions to any was made out.)</p> <p>4. Because court found contrary to law and evidence.</p> <p>The motion was overruled, and notice of appeal given.</p> <p>Swan, administrator, assigned errors as follows:</p> <p>1. Court erred in overruling exceptions to jurisdiction.</p> <p>2. Court erred in overruling exceptions to petition.</p> <p>3. Because the law was passed after the date of the bond.</p> <p>4. The law was unconstitutional, and acts of sheriff under it did not bind sureties.</p> <p>6. Because the petition was liable to special exceptions, by not showing how much tax was collected in 1871 and 1872. h</p> <p>6. No sufficient evidence to support judgment.</p> <p>7. No evidence of levy of said taxes not paid over.</p> <p>8. The board, if it did, had no authority to levy the taxes.</p> <p>9. There was no sufficient proof that they were assessed.</p> <p>10. There was no proof of demand of the sheriff to pay over the taxes.</p>

<p>Appeal from Henderson. Tried below before the Hon. M. H. Bonner.</p> <p>The case is fully stated in the opinion.</p>

Tried below before the Hon. R. S. Walker. In the early part of the year 1874, James Lynn purchased from the I. and G. N. R. R. Co. lot No. 4, in block 164, on Spring street, in the city of Palestine, in Anderson county. At this time he was engaged in keeping a saloon and a restaurant, and was indebted to appellant and others.

Tried below before the Hon. B. F. Estis. September 23, 1876, M. E. Pouns brought suit against George B. Williams and his wife Sarah, for two tracts of land, (one of 320 acres, and the other of 160 acres,) situated in the county of Morris.

Error from Bexar. Tried below before the Hon. G. H. Noonan. [This case was transferred to Tyler, and decided November 16, 1877.] The plaintiff) Adelicia Acklin, joined by her husband, instituted this suit in the District Court of Bexar county on the 31st of October, 1856, by filing an ordinary petition in trespass to try title, claiming to be the owner of a front of 166 varas of land on Solidad street, in the city of San Antonio, running for depth to the San Antonio river.

<p>Appeal from Washington. Tried below before the Hon, J. B. McFarland.</p> <p>This was a suit of trespass to try title, brought by J. F. Scott and the other children of Mrs. N. C. J. Scott, their mother, to recover a tract of land occupied by the father and mother as a homestead at the time of the mother’s death. The appellant, Baldridge, set up title under a conveyance from Joel Scott, the executor of the will of N. C. J. Scott, and her surviving husband.</p> <p>It was alleged, in the amended petition, that H. 0. J. Scott resided on the land at the time of her death, and that she owned no other real estate; that her husband, Joel J. Scott, was appointed by her, executor of her will; that he failed to accept the trust in the manner required by law; that he did not qualify as executor until about two years after their mother’s death; that he filed no inventory of the estate until February 1, 1870, about four years after the filing of the will; that about February 4,1870, the day on which the inventory was approved, their father, the said Joel J. Scott, delivered to defendant a pretended deed to the land in controversy; that said pretended sale and conveyance made by said J. J. Scott to said' defendant was made without any lawful authority, and in utter disregard and violation of the title and rights of said plaintiffs, and contrary to the provisions of said last will and testament of said ÜST. O. J. Scott, deceased; that there was no necessity nor reason for sale of said tracts of land; that there were then, and at the time of pleading, no debts, demands, or liabilities against, nor in favor of, said estate of said hi. O. J. Scott, deceased, and that said J. J. Scott had no right or authority from the County Court of said county, nor under said last will, to sell or convey said tracts of land; that said defendants, with full knowledge of said facts, and of the title and rights of plaintiffs, fraudulently conspired and combined with said J. J. Scott, for the purpose of procuring said pretended sale and conveyance, and of obtaining possession of said tracts of land, and of the rents and profits thereof; that in pursuance of said fraudulent combination, said pretended inventory was filed as aforesaid, solely with a view of making said conveyance, and for the purpose of giving some color of authority to the acts of said J. J. Scott to said defendant, as executor of said will and estate. Plaintiffs further alleged, that this pretended sale and conveyance, made by said J. J.' Scott to said defendant as aforesaid, and under and by virtue of which said defendant claimed title to said tracts of land, was fraudulently and collusively made, for the purpose of defrauding.said plaintiffs of their rights to said land, and of depriving them of their home, and that the same was illegal, null and void, to all intents and purposes; that said J. J. Scott never executed any bond as executor of said estate, and never qualified or gave bond as administrator, or as administrator with will annexed, of said estate, and complied with the law in regard to the administration of said estate, or as executor of said will, and that his acts as such executor were without authority of law, and null and void, and that all this was well known to defendant ; that J. J. Scott was, at the date of his death, utterly insolvent, and left no estate or property whatever; that at and before the death of said N. C. J. Scott the plaintiffs, nor any of' them, owned any' property or estate whatever; that at, before, and since the death of their said mother, N. C. J. Scott, and until dispossessed by defendant as aforesaid, all of plaintiffs resided upon said tracts of land, using and enjoying the same as a home, none of said plaintiffs having any other home or residence, and that said tracts of land, being cultivated by plaintiffs, furnished a comfortable home and subsistence to all of said plaintiffs; that three of said plaintiffs were partially and three of them totally blind, so as to be unfit for labor or business, and such was their condition when said will was made; that it was the wish and intention of said ü. O. J. Scott, in her will, to provide a permanent home on said land for her children, which is designated therein as “the farm”; that it was not her intention that said lands should be sold; that all this was well known to defendant, who was a near neighbor of testator, and fully cognizant of the condition of plaintiffs and of the said facts.</p> <p>The will of Mrs. If. 0. J. Scott was as follows, viz.:</p> <p>State of Texas, Washington County.</p> <p>In the same of God, Amen. I, N. C. J. Scott, wife of Joel Scott, of said county and State, being of sound and disposing mind and memory, and being desirous of arranging and settling my worldly affairs while I have strength so to do, do make and publish this my last will and testament, hereby revoking all wills by me at any time heretofore made. And first I commit my soul to God who gave it, and my worldly affairs I dispose of as follows:</p> <p>1. It is my will that all my just debts should be paid.</p> <p>2. I will and bequeath to my children by my husband Joel Scott begot, each to share and share alike, all the property, real and personal, of every kind and description, of which I may die possessed.</p> <p>3. It is my will that my property, of every description, should be kept upon the farm upon which I now reside, and employed in agriculture for the support of my children, and all proceeds and moneys arising from the sale of products of said farm, above the support and education of my children, to be used and invested by my executor,- hereafter to be named, ror 'the use and benefit of the estate, in such manner as in his judgment may be best.</p> <p>4. It is my will that my executor shall have full control, management, and government, without restriction or limitation, of my estate; that he buy and sell and exchange any description of property whatsoever, belonging to said estate, when in his judgment it is best so to do.</p> <p>5. It is my will that upon the marriage or maturity of my children, there shall be no partition or division of the estate, without the approval of my executor.</p> <p>6. Having full confidence and trust in my husband, Joel Scott, I hereby appoint him my executor, to execute and discharge the provisions of this my last will and testament.</p> <p>7. It is my desire that this will be placed upon the records of Washington county, and that my executor be relieved of giving bonds, also relieved from making returns to the court, as executor as aforesaid.</p> <p>(Signed) N. C. J. Scott.</p> <p>Witnesses: O. A. Horwood.</p> <p>J. F. Gardner.</p> <p>The will was filed and recorded September 21, 1864, but no application was made for probate until May 16,1866, and the will was not probated until the August Term, 1866, of the Probate Court of Washington county. Ho inventory of the estate was filed until the 1st day of February, 1870, nearly six years after Mrs. Scott’s death. Three days after the inventory was filed, to wit, February 4, 1870, J. J. Scott, signing as executor of the last will of H. C. J. Scott, deceased, executed a deed of conveyance for the farm or land in controversy to James Baldridge, the defendant, the consideration mentioned in the deed being §4,348.88 gold.</p> <p>The defendant pleaded the general issue, “ not guilty,” and suggested valuable improvements, in good faith. On" the 12th day of March, 1873, the cause came on for trial. By consent of parties, a jury was waived, and the matters in controversy, as well of fact as of law, were submitted to the court. Judgment was rendered in favor of plaintiffs for the tracts of land, and also for §2,040 damages, by way of rent; and from this judgment the defendant prosecutes this appeal.</p> <p>The evidence before the judge trying the cause is sufficiently embodied in the opinion, in which will also be found reference to the character of title claimed by the testatrix.</p> <p>The assignment of errors is general, that “ the court erred in rendering judgment against the defendant on the law and the evidence,” and points out no specific grounds of error.</p>

Tried below before the Hon. Green J. Clark. January 3, 1871, W. T. Blythe, with George and Terrell as sureties, executed his promissory note to the county of Hopkins for $100, due twelve months thereafter, for a frame building attached to the old jail-house, sold to Blythe by the sheriff, &c. October 13, 1871, one R. H. Beale, a justice of the peace, and presiding justice of said county, indorsed said note to C. Deaton.

<p>Appeal from Kaufman. Tried below before the Hon. J. G-. Eblen.</p> <p>This was a suit on a note given for the purchase-money for one-half of a survey in the name of Thomas Beady, made upon a vacant league in the block of league surveys known as. “ King’s block,” mentioned in Jones v. Burget, 46 Tex., 284. The tier of surveys in the block in which the Beady location was made, was short 507 varas east and west.</p> <p>The Beady survey called for the northwest corner of the lapsed location, as shown in the surveys of King’s block; called for the entire length of north line; thence southwest, &c., following the description of the field-notes of the original survey in the block, but leaving out two small surveys made prior to the Beady location.</p> <p>It was insisted that the Beady survey fell short in quantity to the extent of 507 varas off the southeast side.</p> <p>It seems that there was no testimony that the land east of the Beady survey was in fact located, or that the survey in name of Colwell, in conflict with the 507 varas on the southeast side of the Beady survey, was covered by a valid or by an older survey.</p> <p>From this statement, the opinion will be understood.</p>

Tried below before the Hon. Joseph Bledsoe. Wolf W. Walker obtained an injunction, in 1871, against Joseph H. Burks, administrator of the estate of Murray, restraining him from the collection of a note, on a petition, which contained, among other' things, the following averments, viz.: He alleged, that in March, 1870, Burks, as administrator, sold at public vendue, on a credit of twelve months, a tract of land, which he described; that plaintiff Walker became the purchaser,…

<p>Appeal from Red River. Tried below before the Hon. Joseph Bledsoe.</p> <p>The opinion states the ease.</p>

Tried below before the Hon. Joseph Bledsoe. This action was begun, in the District Court of Red River county, in March, 1874, and tried May 25, 1877. .The defendant filed a general demurrer, which was overruled. Less than two hundred dollars ($198.40) was due, of principal, when the suit was brought. The assuming of jurisdiction by the court was assigned for error.

<p>Appeal from Red River. Tried below before the Hon. Reuben R. Gaines.</p>

Tried below before the Hon. G. J. Clark. H. M. Truehart brought an action of trespass to try title, August 23, 1872, for 687 acres of land, against W. S. McMichael. The defendant pleaded not guilty, and the statute of limitations of ten years as to 640 acres of the tract sued for. September 7, 1876, judgment for the defendant was rendered, which on appeal was reversed, prior to which judgment defendant had had one continuance.

Tried below before the Hon. A. J. Booty. On November 17, 1875, Sarah J. Linthicum and husband brought trespass to try title for 108 acres of land, against S. M. Boles, alleged to be in possession. The petition also alleged that Boles claimed the land under a pretended deed from one J. E. Norvell, which deed was a cloud upon plaintiff’s title. April, 1876, defendant pleaded not guilty. May 25,1877, plaintiff filed a supplemental petition, making W. 0.

<p>Appeal from Kaufman. Tried below before the Hon. J. G. Eblen, special judge.</p>

<p>Appeal from Red River. Tried below before the Hon. Joseph Bledsoe.</p>

<p>Appeal from Hopkins. Tried below before the Hon. Green J. Clark.</p> <p>The ease will be sufficiently understood from the opinion.</p>

Tried below before the Hon. John C. Easton. The opinion contains a careful statement of the case. The case was taken from Austin to Tyler, and decided December 4, 1877.

Tried below before the Hon. A. J. Booty. December 6, 1870, at Henderson, in Rusk county, Webster Flanagan, H. M. Cushman, and C. T. Garland had the following transactions: Garland held a note on Cushman for a. tract of land on which was due $3,823.13 gold. This sum Flanagan furnished and paid to Garland, who at the time executed a deed for the land to Cushman.

Tried below before the Hon Green J. Clark. March 31, 1876, James and David L. Garrett obtained a temporary injunction, restraining W. J. Morphy and J. K. Milam, trustees, and Wallace & Co., beneficiaries, from proceedings under a trust deed executed by plaintiffs to Morphy, to secure an indebtedness to Wallace & Co. The ground of relief alleged was the full payment of the indebtedness to Wallace & Co. One of the items insisted on as a part payment wag a note indorsed by…

<p>Appeal from Rockwall. Tried below before the Hon. Green J. Clark.</p>

Tried below before the Hon. J. W. Oliver. A sufficient statement of the case is given in the opinion. The case was taken for decision to Tyler, and there decided December 7, 1877.

Tried below before the Hon. Green J. Clark. This suit was brought by appellant for the recovery of three hundred and twenty acres of land in Hopkins county, which she alleges was the community homestead of herself and her late husband, Anderson Whetstone.

Tried below before the Hon. Green J. Clark. Hardin Hart brought suit, June 11, 1875, against M. D. Bullion, Ms wife, Sarah J. Bullion, and B. D. Martin, to rescind a contract for the exchange of land.

Tried below before the Hon. Z. Norton. July 19, 1875, Horton brought suit against Edwards for specific performance of an alleged parol sale of a town lot in Mineola.

Tried below before the Hon. A. J. Booty. Many witnesses were examined in this case, but it is believed that sufficient reference is made to their evidence in the opinion, which gives all the facts material to a proper understanding of the case, except only the charge of the judge regarding the mental capacity necessary to a valid will.

<p>Appeal from Wood. Tried below before the Hon. M. H. Bonner.</p> <p>The case is fully stated in the opinion.</p>

<p>Appeal from Harrison. Tried below before the Hon. A. J. Booty.</p> <p>The facts are given in the opinion.</p>

Error from Shelby. Tried below before the Hon. George Lane [In this case and the one following, Chief Justice Roberts. and Associate Justice Moore were disqualified, and John C. Robertson, Esq., and T. W. Jones, Esq., were appointed special judges.] A motion was made to dismiss this case, on grounds set forth in the opinion.

Error from. Shelby. Tried below before the Hon. George Lane. (Chief Justice Roberts and Associate Justice Moore being disqualified, Tignal W. Jones and John C. Robertson were appointed special judges.) This cause was before this court at a former term.

Tried below before the Hon. Joseph Bledsoe. John H. Clark sued Bryorly, at June Term, 1875, of the District Court of Red River county, on a contract between the parties, in which Clark sold to Bryorly 183,113 feet of lumber, at prices therein stated. Service of citation was had. Defendant employed counsel, and a general demurrer and general denial was pleaded.

<p>Appeal from Shelby. Tried below before the Hon. A. J. Booty.</p> <p>September 15, 1866, S. K. McClelland, as administrator of the estate of Zachariah Hinton, sued John L. Moore for one thousand dollars, balance unpaid of the purchase-money for 913 acres of land sold defendant by plaintiff’s intestate.</p> <p>March 12, 1867, defendant pleaded in reconvention a breach of the warranty of title in the deed made by Hinton to defendant, in that, at the time of the sale, 208 acres of the tract sold was vacant land, and that to secure it defendant had located and procured a patent for it, the value of which was greater than the amount sued for, &c.</p> <p>July 7, 1874, the ease was tried, and a verdict rendered for plaintiff for “ one thousand dollars, less three hundred dollars allowed for saving said land.”</p> <p>Upon this verdict, judgment was rendered. A motion by defendant for new trial was overruled, and defendant Moore gave notice of appeal.</p> <p>The appeal was dismissed for want of an assignment of error.</p> <p>March 17, 1875, N. S. Moore, as executor of John L. Moore, the defendant, filed a petition for writ of error. In the petition, it was alleged that John W. Hinton was administrator de bonis non of the estate of Z. Hinton. An assignment of errors was filed with the petition. A cost bond was filed and approved 3d of May, 1875.</p> <p>July 14, 1875, N. S. Moore filed a motion in the District Court to amend and set aside the judgment of July 7,1874, alleging that the defendant John L. Moore departed this life December 11, 1873, while the suit was pending, leaving a will, which was duly admitted to probate; that under said will, the said E. S. Moore, December 29, 1873, qualified as executor, and that he, as executor, had never been made a party to .the suit.</p> <p>That S. K. McClelland, the original plaintiff, had also died, and that in March, 1871, John W. Hinton had been appointed administrator de bonis non of the estate of Z. Hinton, but was never made a party plaintiff to the suit.</p> <p>Wherefore, it was insisted, the judgment was void for want of parties. The motion was accompanied by affidavits showing the facts alleged.</p> <p>July 22, John W. Hinton, administrator de bonis non of Z. Hinton, excepted to the sufficiency of the motion to set aside the judgment, and denied the facts alleged therein.</p> <p>November 5, 1875, N. S. Moore, administrator in the District Court, filed a dismissal or abandonment of his writ of error.</p> <p>On same day, John W. Hinton pleaded in defense, against the motion, that the writ of error had been perfected, and the jurisdiction of the Supreme Court over the matter; also alleged that the death of J. L. Moore, the original defendant, had been, in 1874, suggested, and the entry made on the judge’s docket, with leave to make himself a party defendant ; and that N. S. Moore, as administrator of the defendant, and John W. Hinton, as plaintiff, were present in court on the trial, actively aiding as parties, employing lawyers, &c., in the case. He also asked that the judgment of July 7, 1874, be amended by the judge’s docket, and in accordance with the facts as to the parties.</p> <p>November 6, 1875, the court submitted the facts controverted in the motion to a jury, and, by the verdict, it was ascertained that S. K. McClelland, the plaintiff, was dead at the rendition of the judgment; that the defendant Moore was also dead; that John W. Hinton was administrator de bonis non of the estate of Z. Hinton; that said John W. Hinton was present, acting and participating, in the manner of a plaintiff, at the trial; that N. S. Moore was administrator of J. L. Moore, the defendant; that N. S. Moore suggested the death of defendant, and asked to be made party, which suggestion was entered on the judge’s docket, but was not carried into the minutes.</p> <p>Upon this verdict, the court set aside the judgment of July 7, 1874.</p> <p>November 6, 1875, death of plaintiff McClelland suggested, and John W. Hinton, administrator de bonis non, was made a party plaintiff. The death of John L. Moore, defendant, was suggested, and N. S. Moore, executor, was made party defendant.</p> <p>The parties amended their pleadings, and the cause was tried at January Term, 1877, by the court, without the intervention of a jury.</p> <p>The facts in evidence were, substantially, that Z. Hinton sold J. L. Moore, by warranty deed, 913 acres of land, described in the deed, for four thousand dollars, of which one thousand remained unpaid; that 203 acres of the land were located by a certificate in name of J. L. Bounds, and that tho field-notes and certificate were not returned to the General Land Office, as required by law, and that Moore relocated and obtained a patent therefor; that the 203 acres were worth five dollars per acre—double the value of any other like quantity of tire tract sold; that Moore entered into possession under the deed, and was never dispossessed.</p> <p>There were objections taken to a land-office copy of the patent introduced by defendant, affidavit having been made that he could not produce the original.</p> <p>The court rendered judgment for the defendant. Motion for new trial was overruled, and the plaintiff appealed.</p> <p>The errors assigned sufficiently appear by the opinion.</p>

<p>Appeal from Titus. Tried below before the Hon. B. F. Estis.</p> <p>The facts are given in the opinion.</p>

<p>Appeal from Rusk. Motion to affirm on certificate.</p>

<p>Appeal from Rusk. Tried below before the Hon. M. D. Ector.</p> <p>The pleadings and evidence are sufficiently set out in the opinion.</p>

<p>Appeal from Smith. Tried below before the Hen. J. L. Henry, special judge.</p> <p>March 23, 1874, Peter G. Ragsdale brought an action of trespass to try title against Julius A. Robinson for one-third interest in 200 acres of land, part of the John W. Cauble 640 acres headright.</p> <p>The defendant pleaded not guilty, and limitation of three and five years.</p> <p>The parties also pleaded specially their titles, the various amendments covering about forty pages of the record.</p> <p>On the trial, plaintiff" read patent to John W. Cauble for 640 acres of land, and a deed from Cauble to plaintiff for one-third interest therein.</p> <p>The defendant filed his deeds relied on for title, with notice to plaintiff, September 10,1874, and on the trial read, over objections, the following deed:</p> <p>“The State of Texas, ) County of Guadalupe.</p> <p>Know all men by these presents, that I, Peter C. Ragsdale, in consideration of $200 to me in hand paid by Nathaniel Killoagh, the receipt is hereby acknowledged, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto the said Killough my interest, the following tract of land, situated in Smith county, near the southwest comer, and known as a part of the head-right of John Cauble: Beginning at a post on the west boundary-line of a seven-league survey, a post from which a red-oak bears IV. 36° W. 1 varas; another varas S. 32° W. 1 varas; thence north 832 varas, to a post from a willow-oak bears N. 3° E. 2^- varas; another bears N. 49 E. 5^ varas; thence north arid east so as to include two hundred acres of land, (the other part of the above survey having been sold to Gilliland,) to the beginning, containing 200 acres of land, together with all and singular the rights and appurtenances to the same belonging; to have and to hold all and singular the premises above mentioned unto the Killough, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend the title to one-third of the above-named tract of land, it being all my interest in the same, unto the said Nathaniel Killough; his heirs and assigns, against every person lawfully claiming the same or any part of it.</p> <p>Witness my hand and seal, using a scrawl for seal.</p> <p>Signed, sealed, and delivered in presence of —■--, December 10, A. D. 1862.</p> <p>Attest: Peter C. Ragsdale.” [seal.]</p> <p>The deed had been duly acknowledged and recorded. To the deed, it was objected: (1) It does not describe the land sued for; and (2) it is unintelligible, and describes no land whatever.</p> <p>Before the trial, the plaintiff filed an affidavit, denying the execution of the deed.</p> <p>Defendant then read the will of Nathaniel Killough; deed by executors of Killough to Jefferson Wallace, of date February 5,1867, for 200 acres of the John Cauble 640 acres head-right; (describing the tract as “ beginning at the southwest corner of said survey; thence N. 832 varas; thence N. 45° E. 594 varas; thence E. 592 varas, to a stake from which a hickory six inches in diameter bears S. 24° E.; thence S. 1,232 varas, to a stake on the south boundary-line, with bearing-trees; thence W. 982 varas, to the beginning;”) deed from Wallace to J. F. Rosbury and defendant, for the same land, September 20,1867; and deed from Rosbury to defendant, November 12,1871.</p> <p>Defendant then read copy of a deed from Peter C. Rags-dale, plaintiff, to John H. Gilliland, administrator of the estates of E. H. and Margaret Gilliland, of date December 5, 1870, for all his interest in said John Cauble survey.</p> <p>A. J. Glaze, for defendant, testified that Wallace traded a tract of 200 acres to Killough for the land in controversy, and entered upon it in 1862 or 1863, and had lived on it until his sale to Rosbury and Robinson, in 1867. Witness knew the land in controversy. All the balance of the Cauble 640 acres survey was sold by plaintiff" to E. H. Gilliland in 1859, and a deed therefor was made to John H. Gilliland several years after the war. Witness testified to conversations of plaintiff touching the sale to Gilliland. The 200 acres in controversy does not touch the seven-league grant. It is in the southwest corner of the Cauble survey. Robinson had held possession of the land, from Wallace’s sale, in 1867, up to the trial.</p> <p>Plaintiff", in rebuttal, called Ira Ellis, who testified that he was a surveyor. After examining the map of Smith county and the field-notes set out in the petition, he testified that it being in the southwest corner of the Cauble survey, and by following the field-notes, it would not touch the seven-league grant. After examining the deed from Ragsdale to Eillough, he stated that to follow out the field-notes, the land would fall on the seven-league survey, and did not contain any portion of the Cauble survey. That a tract with the beginning corner on the west line of the seven-league survey, would not describe land situated in the southwest corner of the Cauble survey.</p> <p>“ He stated, also, that in the deed from Ragsdale to Eillough, the name Eillough and the description (that part in italics above) were in different handwriting and different ink from the balance, which was in Ragsdale’s handwriting.</p> <p>“A deed to land which ran off on the seven-league survey, could not be a part of the Cauble survey. The first call East in the deed would not be a call for land on the Cauble survey.</p> <p>“If a man had sold 440 acres off and out of a 640-acre tract, leaving only 200 in the southwest corner, in order to sell 200 acres of this survey he would have to sell out of the southwest corner. The deed, then, was a misdescription.” <■</p> <p>Below is a sketch showing the Cauble survey, with refer- ■ ence to the seven-league grant. The surveys are in southwest part of Smith county.</p> <p> </p> <p>Plaintiff testified that he had located the John W. Cauble 640-acre tract, and that Cauble made him a deed to an undivided one-third interest for his services; that on receiving a letter, he wrote a deed to his undivided one-third interest in 200 acres, to be taken off the north end of the Cauble tract, to begin in the western boundary of the Querado seven-league survey, and at the northern corner of the Cauble survey; thence with its northern and western boundary to a point, so that by running due east to the western line of the seven-league survey, and thence north to the beginning, would contain 200 acres; that he left blanks for courses and distances and bearing-trees, and for the name of the grantee; that he acknowledged the deed in Guadalupe county, and forwarded it to Killough; that he fixed the beginning corner on the western boundary of the seven-league survey, and northern corner of the Cauble survey; that after Killough’s death he sought to regain the deed, searching among his papers, and in the clerk’s office at Tyler; that he had paid taxes continuously on the land. Witness also testified to conversations with Robinson, which were in turn denied by Robinson.</p> <p>On the trial, the fourth interrogatory to Ragsdale, and the answer, were excluded on exceptions, as follows:</p> <p>“Int. 4. Did you receive a letter from Nathaniel Killough about December 1, 1862, in regard to the transfer of a part of the Cauble survey ? If yea, attach the said letter to your answer; and if the same is not in your possession, state whether it is lost or destroyed;' and if so, state as near as possible the contents of the letter.”</p> <p>“ Ans. to 4th. I received a letter about 1st of December, 1862. I am not certain whether it was from Nathaniel Killough or my brother, E. B. Ragsdale, stating that N. Killough had contracted to sell 200 acres of land off the northern end of the Cauble survey, in Smith county, Texas, and said Killough wished me to send a deed in blank, that he might fill it out and put in the name of the purchaser. The letter is lost or destroyed, and I have stated its contents as near as I can.”</p> <p>After the testimony of Ellis had been introduced, plaintiff moved to exclude the deed from Peter C. Ragsdale to Killough, because it described land different from that sued for.</p> <p>April, 1877, the case was tried on the above testimony. The charge of the court is sufficiently indicated in the opinion.</p> <p>Verdict and judgment were for the defendant, and Rags-dale appealed.</p>

<p>Error from Rusk. Tried below before the Hon. M. D. Ector.</p> <p>Woodford Wallace made a will 17th of March, 1858, in which, after providing for the payment of his debts and the support of his sister, he devised the remainder to his four children; the property to be kept together until they became of age. Two persons were named as executors. The will contained also the clause—“I wish my estate to be kept out of the Probate Court.” By a codicil, the executors were empowered to “buy and sell land.”</p> <p>The will was admitted to probate, and an inventory was returned.</p> <p>One of the executors died, and the survivor, Bartley Wallace, with William Hays, B. F. Parker, and W. A. Parker, sureties, executed a bond in the usual form of an executor, which was approved by the chief justice December 15, 1871.</p> <p>The bond was conditioned, that the said Bartley Wallace should “ well and truly perform all the duties required of him under said appointment,” &c.</p> <p>June 20, 1874, N. J. Pierce and her husband, and the Other children of the testator, brought suit upon the bond, alleging the wrongful conversion of a large portion of the estate by the executor, and asking a recovery against him and the sureties on the bond.</p> <p>The sureties interposed a demurrer to the petition. Several amendments were filed, but not materially changing the nature of the action. The defendants made special defenses, but not being acted upon by the court, they are not further noticed.</p> <p>The court sustained the demurrer to the petition, and judgment final on demurrer was rendered for defendants.</p> <p>The plaintiffs prosecute by writ of error in this court.</p>

Tried below before the Hon. M. H. Bonner. This was an action of trespass to try title in the ordinary form, brought by H. C. Manning against John O’Neal, for 160 acres of land in Van Zandt county, part of a large tract patented to the heirs of A. T. Mitchell. The defendant pleaded not guilty. A jury was waived and the cause submitted to the judge. There was no controversy as to the title claimed by each.

<p>Appeal from Hunt. Tried below before the Hon. Green J. Clark.</p> <p>The case is sufficiently stated in the opinion.</p>

Tried below before the Hon. M. H. Bonner. On the 16th of May, 1877, an election was held in Van Zandt county, by order of the county judge of that county, on the petition of a number of voters, to locate the county-seat. Canton, then the county-seat, and within five miles of the geographical center of the county, and Wills Point, a town in said county, more than five miles from the geographical center of the county, were voted for.

Tried below before the Hon. W. Chambers. In 1866, A. T. Chenault conveyed a tract of 160 acres of land, on which was an old mill, to E. M. Smith and Hugh F. Young. After the purchase, Smith and Young became partners in the lumber business, and erected on said tract the necessary mills and machinery for said business. In 1868 or 1869, E. M. Smith moved upon the land, and occupied it thereafter as a homestead.

Tried below before the Hon. James Masterson. May 4, 1872, Appelton Gay, administrator of Uri Brooks, brought suit, in the District Court of Montgomery county, against G. A. Matthews and H. N. Jones, for balance due on a promissory note made by them and L. W. Matthews, deceased, to Uri Brooks, for 200 acres of land conveyed to said G. A. Matthews by Brooks and wife. The note was made October 3, 1859, and was due January 1, 1861.

<p>Appeal from Fort Bend. Tried below before the Hon. L. Lindsay.</p> <p>From the briefs of counsel and opinion, a full statement of the case appears.</p>

Tried below before Thomas G. Masterson, special judge. The opinion states the character of the motion, except the prayer, which was, that “the sheriff” be required to make a new deed conveying all the estate that lies had in the land at the date of the mortgage.

<p>Appeal from Victoria. Tried below before the Hon. H. Clay Pleasants.</p>

<p>Appeal from Galveston. Tried below before the Hon. A. P. McCormick.</p> <p>This suit was brought by the appellees, as heirs of their mother, against the appellant, the purchaser, holding under warrantee deed made by their father, after her death, for their share of the community interest of the mother in lot number S, in block number 384, in the city of Galveston, alleged to be one-half thereof.</p> <p>The appellant, in defense, pleaded a general denial; and, specially, set up the warranty of the father, and assets descended to the appellee of equal value, by way of estoppel; and alleged the existence of community debts against the community estate, and the discharge thereof by the father from the proceeds of the property sued for and sold by him; and further, that the proceeds of the purchase-money derived from the sale were employed for the support and maintenance of the appellants, and in the acquisition and purchase of the property of which he died seized and possessed, to wit, of fourteen lots, in block number 157, in the city of Galveston, and improvements, and mill and machinery thereon, and other real and personal property enumerated, of the aggregate value of $25,000, which descended to and vested in the appellants, as heirs of their deceased father, all of which was pleaded in bar and preclusion of the appellees’ right to recover. The appellant further pleaded, that he was a purchaser in good faith, for full value paid, without notice of any adverse title; that he had made permanent and valuable improvements on the lot sued for, and reconvened for the value thereof, &c.</p> <p>On the 3d of July, 1874, the cause was submitted to a jury, and verdict and judgment for the appellees for one-half of the lot number 3, in block number 384, &c. Appellant moved for a new trial, which was refused, and Wenar appealed.</p> <p>The statement of facts contains at length the several deeds, with full covenants of warranty from Carl Stenzel, the vendor, father of appellees, down to Davis Wenar, the purchaser, for the price of $6,250.</p> <p>It appears, from the evidence, that J. C. Stenzel, the father of Herman Stenzel and his sister, Emma Souchard, the appellees, died in October, 1871. He lived with, and recognized as his wife, from 1850 until her death, in 1860, Caroline E. Stenzel, the' mother of appellees. While thus living with her as his wife, he bought, in 1851, the lot of ground in controversy. The family did not live on the lot, but resided on leased property, which he had improved. After the. death of Caroline E. Stenzel, her surviving husband married a second wife, who survived him. Of the last marriage, there appears to have been a child born, which since died. The block of ground in controversy'was purchased and owned by J. C. Stenzel before the death of his first wife, the mother of appellees, and sold before his last marriage, and was estimated as being worth $14,000, without regard to machinery upon it, which was variously estimated as worth from $7,000 to $10,000. Administration was taken out on the estate of J. 0. Stenzel in 1871, and, except an inventory filed in 1872, nothing appears to have been done under the administration. J. C. Stenzel did not qualify as survivor in community of the estate of Caroline E. Stenzel, nor was any administration opened on her estate.</p> <p>Wenar, the appellant, testified that he purchased the property in 1868, after procuring legal advice as to the title, and that he had no knowledge of an adverse claim until this suit was brought; that he paid the purchase-money, and placed on it improvements, of value over nineteen hundred dollars.</p> <p>One witness testified that he loaned to J. C. Stenzel, during the lifetime of his first wife, between seven and eight hundred dollars, and to secure the loan, he gave a trust deed on the lot in controversy, and thinks he was paid from the proceeds of the sale. He stated that Stenzel had a planing and sash factory on leased ground, worth ten thousand dollars. It was burned down in 1869, but most of the machinery being saved, it was put up on the block of ground in controversy. The action of the court in charging the jury is shown in the opinion.</p> <p>The assignments of error relate to alleged error of the court in giving and' refusing charges.</p>

<p>Appeal from Victoria. Tried below before the Hon. T. C. Barden.</p> <p>This suit was brought August 30, 1872, by C. L. Terrell, John W. Stevenson, and his wife Frances, who, before her intermarriage with Stevenson, was the widow of Barnes Simms, deceased, and by James, Marcellus, Robert, and Alice Simms, and against Anna Teal, who is the widow of Peter Teal, deceased, and against the children of said Peter and Anna, viz., Mary, Kate, James Teal, and Julia Teal Murphy, with her husband.</p> <p>John B. Sideck, from whom both parties derive title, obtained two grants, each for-a league of land. One grant was made by the government of Coahuila and Texas in 1830; the other was made to him in 1834, as a colonist of Power and Hewitson’s colony. The first grant was for what is called “ the square league ”; the other was for what is called “ the long league.” Both fronted on the San Antonio river. The long league ran across the square one, and extended back behind it.</p> <p>Sideck died between 1842 and 1846, leaving one child and heir, Mrs. Sevier. Peter Teal was Sideck’s nephew; and after Sideck’s death he occupied a part of his land, which part lay within the “ long league ” grant, and was supposed to be also entirely included within the lines of the “ square league” grant, and nearly all of it was in fact so included. Teal claimed this land, or an interest in it, by donation from Sideck. Teal died about 1846, and in that year Mrs. Sevier brought suit, by trespass to try title, against Mrs. Teal, his widow and administratrix, to recover the land. Mrs. Teal pleaded not guilty and prescription; but the defense specially set up, and the only one relied on, was that the land belonged to Sideck’s estate; that Sideck acquired it by the two grants aforesaid, of 1830 and 1834; and that Sideck, by deed of donation, in December, 1832, had given the land in equal shares to Peter Teal and to his (Sideck’s) daughter, the plaintiff, and that thereby Peter Teal became entitled to the undivided one-half of the land. She then prayed for partition, and that in the division there might be assigned to the plaintiff the part she had occupied and cut timber upon, &c., and to herself might be assigned the part that included her homestead, &c.</p> <p>This deed of donation was made in 1832, when Sideck held only the square league. The land described in plaintiff’s petition appears to be the “ long league ”; but after this answer was put in, the litigation appears to have been confined to the question whether Teal was entitled to half the square league by virtue of that donation. The defendant admitted that the plaintiff was Sideck’s legitimate daughter, and admitted that the grants of 1830 and 1834 vested in Sideck the titles described in them, and that they were valid grants. The deed of donation was introduced in the statement of facts, with the declaration that “ it is the donation under which the defendant claims one undivided half of all the lands included within the lines of said grant.” The court instructed the jury, that the plaintiff was entitled to the whole tract, unless her father had donated a part of it to Teal, &e.; and no instruction contrary to that was requested. The jury found “for the defendant one undivided half of the league in controversy.” Upon this verdict, judgment was rendered that Mrs. Teal recover one undivided half of the square league, and one-half of the long league, so far as it falls within the lines of the square league, no mention being made in the judgment of that part of the long league lying outside of the square league, or of plaintiff’s rights. By the same judgment or decree, commissioners were appointed to divide the land within the lines of the square league, assigning one-half to Mrs. Sevier and one-half to Mrs. Teal.</p> <p>The case was brought to this court and affirmed; and in February, 1872, the final decree of partition was rendered in the District Court. This decree confirmed the commissioners’ division of the land within the lines of the square league, and vested the title in the respective parties.</p> <p>"When the lines of the square league, and of this division of it, were run out, it was found that the house of Terrell (who claimed under the Sevier title, and who is one of the plaintiffs) was upon the land that fell to Mrs. Teal, and Mrs. Teal’s house was unexpectedly found to be on that part of the “ long league ” which, fell outside of the lines of the square league; and hence this suit, which was brought for that part of the “long league” which lies outside of the square league,.and is in the ordinary form of trespass to try title.</p> <p>The defendants pleaded not guilty, limitation of ten years, and the former judgment.</p> <p>On the trial, plaintiffs exhibited the grant for the long league to John B. Sideck, as a colonist of Power and Hewitson’s colony, of date 28th October, 1834.</p> <p>They showed that Frances Sevier was daughter and sole heir of the grantee, Sideck; and that he died before January 1, 1846.</p> <p>Deed from Mrs. Louisa Sevier.and husband, E. G. Sevier, made in 1851, to Barnes Simms and two others, for the two middle quarters of said grant, and evidence of transfer to plaintiff, O. L. Terrell, from the grantees in said deed other than Simms.</p> <p>Deed from Mrs. Louisa Sevier and husband, of date 1860, •for 650 acres of the lower one-quarter of said league, and transfers of same to plaintiff, C. L. Terrell.</p> <p>That Barnes Simms was dead, and heirship as alleged in the petition.</p> <p>Deed from E. G. Sevier, as administrator of his wife, Mrs. Louisa Sevier, for the upper quarter of said league, to A. B. Peticolas, reciting that said E. G. Sevier had contracted with one James Martin, an attorney at law, by which he was to have the upper-one-quarter of said league for certain professional services; that said services had been performed, in part, about the title to this land; and that said Peticolas held Martin’s contract. This , deed was also approved and confirmed by the Probate Court; and deed from Peticolas to plaintiff, C. L. Terrell.</p> <p>That Louisa Teal died prior to the year 1864, leaving the children named in the petition as heirs, four of whom are minors.</p> <p>That defendant, Anna Teal, was widow of Peter Teal; and that the other defendants are children of Peter and Anna Teal.</p> <p>The transcript of the record in Sevier v. Teal was then read, a synopsis of which is given above, in the general statement.</p> <p>Testimony was introduced, showing the location of the two grants; the long league and its conflict with the older grant; the petition made under the Sevier v. Teal decree; the situation with reference to the conflicting lines of the two grants and the partition lines, of the improvements or houses in which the respective claimants resided pending the litigation in the former suit, &c.</p> <p>The court instructed the jury: “That the legal effect of the judgment in the case of Sevier and Wife v. Teal, decided by the District Court of Goliad county, was to establish the title of Peter Teal’s heirs to the one-half of the square league, and to establish the title of the heirs of Louisa Sevier to the other half of the square league, and to all of the long league not included within the limits of the square league; and as the period of ten years has not elapsed after the date of that judgment, when this suit was instituted, the defendants can hold no part of the land in controversy under their plea of limitation, if you find, from the evidence, that the land sued for is that part of the long league not included within the lines of the square league.”</p> <p>The jury returned a general verdict for the plaintiffs, for the land described in their petition, on which judgment was rendered. Motion for new trial having been overruled, the defendants, Teal et al., appealed.</p>

Tried below before the Hon. A. S. Broaddus. November 8, 1871, Drury Gee recovered a judgment, in the District Court of Washington county, against T. L. Scott, the husband of M. E. Scott, for $593, and costs. Execution was issued thereon 18th of March, 1873, and levied in Burleson county on a stock of goods. May 21, 1873, T. L. Scott, as agent for his wife, filed an affidavit and bond, for trial of the right of property in said goods.

Tried below before the Hon. T. C. Barden. This was an action of trespass to try title, brought by Whitehead against Nickelson. The property sued for is a half lot in the town of Victoria, with a brick building and several outhouses upon it. It was intended for a hotel, but no hotel has been kept there of late years. Nickelson acquired the property in 1849 or 1850, and has lived upon it ever since.

Tried below before the Hon. L. Lindsay. This was'an action of trespass to try title, brought in the District Court of Colorado county, by the heirs of Mrs. James Bowie, to recover one-half of a league of land granted to him during his wife’s lifetime, and against J. H. Hutchins, John D. Andrews, John McKennon, J. M. Wolsey, Joseph Took, and-Baur, defendants.

Tried below before the Hon. I. B. McFarland. September 11, 1869, James W. and Cyrus Thompson, commission merchants and traders, doing business in the city of Galveston under the firm-name of “A. B. Thompson & Co.,” brought suit against J. T. Swearengin, administrator de bonis non of the estate of Mrs. M. A. Drake.

Tried below before the Hon. Edward Dauherty. November 24, 1874, Charles Stillman brought an injunction suit against Telesforo Trevino, administrator of the estate of Manuel Trevino Canalez, to enjoin an execution in the hands of the sheriff of Cameron county, and the judgment on which it was based, rendered at the August Term of said court, 1871, and which had been appealed to, and affirmed by, the Supreme Court at its term for 1873.

Tried below before the Hon. D. D. Claiborne. This suit was brought by the appellees, as the heirs of John Spear, to recover from Samuel Andrews a tract of land in De Witt county. The appellant entered a disclaimer as to an undivided interest of two-thirds of the land, pleaded not guilty, and set up' title in himself to an undivided one-third of the land, under a conveyance made to him by one James Mahood. He further alleged that.

Tried below' before the Hon. D. D. Claiborne. March 29, 1873, the heirs of William Spear brought an action of trespass to try title, in the usual form, against C. T. Hill, Samuel Andrews, and others, for a tract of 1574 acres of land in De Witt county. By amendment, December 9, 1874, Ellen Hill, wife of C. T. Hill and daughter of Samuel Andrews, was made defendant.

Error from Fort Bend. Tried below before the Hon. L. Lindsay. Kendall & Harcourt were employed by John Johnson to collect notes for over $7,000 from J. L. Pool, secured by trust deed on two tracts of land. Mather held a prior lien on one of the tracts, and made an arrangement by which Kendall & Harcourt were to collect Johnson’s note from Pool, and out of the proceeds to pay Mather.

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

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

Tried below before the Hon. John B. Rector. This was a motion to set aside a submission and advance the cause under the new rules. The facts are fully set out in the opinion.

<p>1. New rules.—Discussed.</p> <p>2. Briefs.—Under the new rules, the brief is a mere statement of the points or propositions relied upon to reverse or affirm the judgment, the matters ill the record pertinent to sustain or rebut these points, and a reference to the authorities relied upon by the parties.</p> <p>3. Points.—Each point must refer to and show under which assignment of error presented, and must present clearly and tersely a single proposition.</p> <p>4. Statement.—When a proposition is presented for the reversal of the judgment, the first inquiry for the court is to ascertain whether the matters in the record warrant and justify it. To enable the court to determine this, the statement must show what is in the record bearing upon the proposition.</p> <p>5. Counter-statement.—If the statement is contradicted by the appellee, he must make his counter-statement of matters in the record in reference to the same point.</p> <p>6. Copying not allowed.—The statement and counter-statement must not be made by copying, but by stating substantially what the record contains, with reference to the pages of the record.</p>

Tried below before the Hon. John B. Rector. In the transcript of this case, there is no statement of facts; but the bill of exceptions signed by the court sets forth in full the deed from D. B. Scarborough and his wife, Mary R. Scarborough, to William Adamson, dated February 24,1853. This deed contains, in the certificate of acknowledgment before the notary, no statement of the privy examination and acknowledgment by the wife, as required by the statute.

Tried below before the Hon. A. P. McCormick. The appellee brought suit upon a policy of insurance, issued on February 3, 1873, for one year, made by appellant upon three frame buildings situated on lots numbers 11,14, and 15, in block number 309, in the town of Hearne, which were consumed by fire during the existence of the policy.

Tried below before the Hon. J. R. Burnet. The judgment appealed from was rendered at the July Term, 1874, of the District Court, on the probate side, on an application for the sale of certain lands belonging to the estate of which appellee was administrator de barns non. The widow and children resisted the application; decree was rendered ordering sale; and the widow and children appealed. A full statement of the case is given in the opinion.