Volume 52 — Texas Reports

<p>Appeal from Wood. Tried below before the Hon. John C. Robertson.</p>

Tried below before tbe Hon. Bichard S. Walker. On June 5,1878, Delespine and wife filed their first original amended petition against George B. Campbell, A. L. Pearson, Susan B. B. Pearson, (his wife,) B. H. Wren, and John A. Matthews, alleging, in substance, that on January 31,1861, B. II. Wren made and delivered to George B. Campbell two promissory notes for $1,347.32 each, payable to the order of George B. and Ben.

Tried below before the Hon. John C. Robertson. Suit by Driscol & Co. for the recovery of a debt of §8,312.48 claimed for work and labor done by them for defendant, and for materials furnished by plaintiffs under a written contract, entered into by plaintiffs and defendant on the 8th day of September, in which the plaintiffs agreed to erect the bridges and construct the cattle-guards on defendant’s road between Tyler, in Smith county, and Ferguson, in Upshur county, Texas,…

Tried below before the Hon. E. B. Turner. March 14, 1877, J. E. Nixon and his wife Lizzie brought suit in the District Court of Travis county against the Houston and Texas Central Railroad Company for damages for negligently causing the death of their infant son, Willie Nixon, March 7, 1877. The defendant pleaded a general denial and contributory negligence. There was no question made upon the pleadings. A verdict was rendered for plaintiffs, and the defendant appealed.

Section 1 of article 5 of the Constitution provides: “ The judicial power of this State shall be vested in one Supreme Court, in a Court of Appeals, in District Courts, in County Courts, in Commissioners’ Courts, in Courts of Justices of the Peace, and in such other courts as may be established by law.” * * * On July 9, 1879, an act of the Legislature was passed entitled “ An act to create a commission of arbitration and ^ward and define the powers and duties thereof, and to…

<p>1. Practice in Supreme Court—Estoppel.—The transcript of a cause was, by order of the Supreme Court, permitted to be filed after the expiration of the time allotted to the assignment, to which the cause belonged, and when counsel for appellees were not attending the court.</p> <p>At a subsequent term of the court, and in proper time for causes returnable at that term, appellees moved to dismiss the appeal for insufficient appeal bond : Held,—•</p> <p>1. That as the transcript was filed after the assignment, appellees had no opportunity to file their motion in the time required by rule S. Their failure to do so could not he considered as a waiver of even formal objections to the bond, under the terms of rule S.</p> <p>2. Appellees were not concluded by the action of resident counsel, who, at a former term, after the assignment had passed, in the absence of appellees’ counsel, assumed to represent them and consent to a continuance of the cause.</p> <p>2. Approved.—Overton v. Terry, 49 Tex., 777, approved.</p> <p>3. Practice in Supreme Court.—The filing by an appellee of a certificate for affirmance, will not estop him from afterwards attacking the appeal bond for insufficiency, after appellant has filed the transcript under leave from the court.</p> <p>4. Fact cases.—See opinion for appeal bond fatally defective because of misdescription of the judgment appealed from.</p>

<p>Error from Milam. Tried below before the Hon. Spencer Eord.</p> <p>This was an action of trespass to try title, brought by Hough and Connolly, appellees, March 13, 1871, for two thousand eight hundred and sixty-six acres of the Samuel Frost league of land, against Josiah Hill, James Taylor, William White, and others living on the land, and against B. F. Hammond and W. H. Hamman, who were claiming adversely to Hough and Connolly, the plaintiffs. After suit and before trial, a part of the squatters attorned to plaintiffs, and the balance to Hammond and Hamman.</p> <p>By amended petition plaintiffs set out their title from the government, deraigning through James S. Steele, and from Steele to Livermore by two powers of attorney, one dated October 4, 1838, and the other dated February 25, 1839, and irrevocable and coupled with an interest; deed from Liver-more to James Bailey; from Bailey to Kimball; from Kimball and his heirs to plaintiffs.</p> <p>Defendants Hammond and Hamman pleaded their title and quit-claim deeds from the children, heirs of Steele, dated in 1871; and they also pleaded fraud in the deed from Livermore to Bailey, concealment, and ignorance of Steele and his heirs of the fraud.</p> <p>Plaintiffs denied the fraud; pleaded stale demand and limitation under the Spanish law of two years; and further, that the land in controversy and other lands were turned over and sold by James S. Steele to Livermore in satisfaction of a debt of $3,100, and that the titles were put in Bailey by their mutual consent, to hold for Livermore, because Livermore, being an alien to Texas, could not hold land in Texas.</p> <p>On the trial it was agreed that the title wras in James S. Steele.</p> <p>Plaintiffs then read in evidence two powers of attorney made by James S. Steele, one on tbe 4th of October, 1838, to Alexander II. Livermore, authorizing him to sell, as agent for said Steele, nine thousand five hundred acres of land, more or 'less, which power of attorney was recorded in Milam county June 3, 1839. (This was a notarial copy of an instrument executed before John Harvey with instrumental and assisting witnesses, and issued the same day executed.) Also an irrevocable power of attorney from James S. Steele to Amos H. Livermore, dated February 25, 1839, in the body of which power the name is first written Alexander, which is erased and the name Amos written over it in the same handwriting. This power was acknowledged before the notary, Thomas Harvey, and the erasure is noticeable in the certificate. This power of attorney authorized Livermore to sell the lands in controversy and other lands, and is declared to be “ irrevocable by the said Steele or his heirs.”</p> <p>Plaintiffs read deed made by A. H. Livermore, agent and attorney in fact, from James S. Steele to James Bailey, dated June 3, 1839, and acknowledged same day before W. D. Thompson, recorder of Milam county. Also deed from Bailey to Samuel Kimball, of date January 5, 1848, for tbe land.</p> <p>Plaintiff Connolly had a deed for an interest in the land from Kimball, and Hough held another interest by conveyance from Kimball’s heirs.</p> <p>The defendants read quit-claim deeds to themselves from parties shown to be the heirs of James S. Steele, of date January 24 and May 18, 1871.</p> <p>Defendants proved by Susan Kerr, a daughter of James S. Steele and one of the vendors of Hammond and Hamman, that she was born in 1835. William H. Steele, Jr., and James S. Steele, Jr., also children of James S. Steele and vendors of defendants, testified that they were born, one in 1836 and the other in 1838. All testified that they were ignorant of the fact of Livermore’s agency for their father, or that he made a deed for the lands to Bailey, or that he took a defeasance from Bailey in June, 1839; and that they were ignorant of the proceedings in the District Court of Hew Orleans, Louisiana, in reference to these lands. James S. Steele died in 1847.</p> <p>It was also shown that the widow7 of James S. Steele, in 1860, had employed a lawyer, who investigated as to her rights in this land, and who advised suit; that suit for Steele’s heirs had been brought in 1860 for the laud; that the attorney had negotiated the sale to Hammond and Hammam</p> <p>The plaintiffs then read from a transcript from the records of the Second District Court of the parish of Orleans, Louisiana, that Samuel Kimball was curator of the succession of A. H. Livermore, deceased, and in 1846 said curator procured from said court an order to sell the following land or contract: “Republic oe Texas, f “ County of Harrisburg. $</p> <p>“By this public instrument, this day, before me, William Fairfax Gray, a notary public in and for the county of Harrisburg aforesaid, c[uly commissioned and sworn, personally came and appeared the citizen James Bailey, who declared that whereas he has this day, by an act of procuration, authorized and empowered Amos H. Livermore, of the city of Hew Orleans, to sell on his own account and in his name certain lands which were conveyed to him by James S. Steele, viz., one half-league of land on the west bank of the river Brazos, in the county of Milam, the same that was originally granted by the Mexican Government to Samuel Frost, and by the said Frost conveyed to William H. Steele, and by William H. Steele to James S. Steele, and by James S. Steele to this appearer: * * How, the said appearer further declares that the lands herein-before described are only held by him as the agent of the said Livermore, to whom they rightfully belong; but said Liver-more being an alien to Texas, they were constituted the better to hold and protect them for the use and benefit of the said Amos IT. Livermore, his heirs and assigns; and should the said Livermore not effect a sale of said land as he is authorized by this appearer to do, appearer does hereby covenant aud bind himself, his heirs, &c., to make full and legal conveyauee of said land to the said Livermore, his heirs or assigns, whenever required so to do. And he hereby acquits and discharges his said attorney from all responsibility for and on account of the proceeds of any sales that he may make of these lands; they being his property, he is fully entitled to retain the proceeds for the benefit and use of himself, his heirs, &c. In testimony whereof,” &c. (Signed before two witnesses and the notary public.)</p> <p>Also from the record, further, that J. Lawson Lewis, sheriff of the parish of Orleans, Louisiana,-sold said laud; that James Connolly, bidding $400 and being the highest and best bidder, became the purchaser; and that said sheriff executed a deed for said land or contract to James Connolly on the 8th of September, 1846; the order of court, advertisement by the sheriff, and the deed to Connolly being all set out entire in the transcript.</p> <p>James Bailey, witness for defendants, testified that he knew nothing more about said bond made by him to Livermore, and of the deeds made by Livermore to him a few days before, than appears from the face of the papers; that he paid nothing to Livermore, nor did Kimball pay witness anything.</p> <p>Defendants .also read part of the deposition of plaintiff" Connolly, taken in answer to interrogatories by the defendants. The testimony of Connolly sufficiently appears from the opinion.</p> <p>The plaintiffs then read, over objection, other parts of Connolly’s deposition. (See the opinion.)</p> <p>Plaintiffs then, over objections, read from the transcript from the Second District Court, &c., and pertaining to the succession of Amos II. Livermore, had in 1839, as follows:</p> <p>“ Papers relative to certain lands owned by the said Amos II. Livermore in the Kepublic of Texas.</p> <p>“ The original of a public act executed before William Fair-fax Gray, a notary public in and for the county of Harrisburg, on the 10th of June, 1839, by James Bailey, declares that a certain tract of land which was conveyed to him by James S. Steele, namely, one half-league of land on the west bank of the river Brazos, in the county of Milam, is only held by him as agent of the said A. H. Livermore, to whom the same rightfully belongs, which act or instrument in writing I, the said notary, paraphed and marked by the letter A.</p> <p>“A power of attorney executed before the same notary on the 10th of June aforesaid by the said James in favor of said A. H. Livermore, relative to the said lands, which instrument in writing I, the said notary, have paraphed and marked by the letter B.</p> <p>“A power of attorney executed before Thomas Harvey, a notary public in and for the county of Matagorda, in the said Republic of Texas, dated Matagorda, on the 4th of October, 1838, by James S. Steele to the said A. H. Livermore, in relation to the said lands, which instrunaent in writing I, the said notary, have paraphed and marked by the letter 0.</p> <p>“A deed of sale of the said lands by A. H. Livermore, attorney in fact of J. Steele, to James Bailey, dated at Nashville, Texas, on the 3d of June, 1839, and acknowledged before J. W. D. Thompson, clerk of the court and county recorder in and for said county of Milam, -which instrument in writing I, the said notary, have paraphed and marked by the letter D.</p> <p>“A deed of sale of said lands by William H. Steele to James Steele, forming the chain of title of said property, which instrument I, the said notary, have paraphed and marked by the letter E.</p> <p>“And here the said curator of the said estate declared that the said lands still belong to the said A. TI. Livermore from said James S. Steele, .and taken in payment of the sum of $3,100 due to him by Messrs. Steele & Lewis, of Matagorda, said sum being the amount of a note of $1,473.80 subscribed by the said Steele & Lewis to the order of the said A. IT. Livermore, dated at New Orleans, the 14th of August, 1838, and payable four months after date, which note is in the possession of him, the said curator, and of a balance of account due by said Steele & Lewis to the said A. H. Livermore.</p> <p>“And here the said curator has produced the above-mentioned note of the said Steele & Lewis, which I, the said notary, at the request of the said curator, have inventoried in the following manner for memorandums: A promissory note drawn by James Steele for Steele & Lewis for the sum of $1,473.80 to the order of the said A. H. Livermore, dated Hew Orleans, on the 14th of August, 1838, and made payable four months after date.”</p> <p>The instructions to the jury are sufficiently indicated in the opinion.</p> <p>Verdict and judgment for plaintiffs. Hammond and Ham-man appeal by writ of error.</p>

Tried below before the Hon. James Masterson. Suit by Mary J. Davis, as plaintiff, and Mrs. William Brady and husband, as interveners, on several notes executed by C.H. Jordan, amounting now to about $10,000, gold, and to establish and foreclose a mortgage lien therefor on certain land in Harris county.

<p>Appeal from Cherokee. Tried below before the Hon. Richard S. Walker.</p> <p>The opinion states the case.</p>

Tried below before the Hon. George H. ISToonan. Action of trespass to try title, brought by S. and J. H. French ct a.l., plaintiffs below, to recover from a number of defendants land in the city of San Antonio, containing several acres subdivided into lots.

Tried below before the Hon. B. T. Estes. Mary Casey, on the 1st of October, 1874, entered the cars of the Texas and Pacific Railroad Company at Jefferson to go to Moore’s Landing. After taking her seat on the cars, and before they had proceeded far, the conductor demanded to know of her if she had a pass permitting her to ride on the cars. She replied that she had not, and was at once put off the cars by the conductor, at or near a vrater-tank.

<p>Appeal from. Cherokee. Tried below before the Hon. E. S. Walker.</p> <p>This was a suit by James M. Wiggins against M. H. & F. W. Bonner, in trespass, for removing certain rails from a tract of land claimed by Wiggins. By amended and supplemental petition the title to the land itself, on which the rails were placed by Wiggins, became, by pleading in trespass to try title, the subject of controversy; compensation for the rails so removed was still claimed, and also vindictive damages under appropriate averments. The fence was erected by Wiggins on Bonner’s side of a line which divided tracts of land owned by the parties respectively. No statutory suggestion was made in terms by Wiggins that he made the fence improvement in good faith, the rails of which were removed.</p> <p>The Bonners, through their agents, removed the rails, as shown by the evidence, thus leaving one portion of the field on Wiggins’ land open. There was evidence of damage from this action. The rails were removed without a resort to force, and it does not appear that either Wiggins or his tenants had pedal possession of the particular land on which the fence was built at the time of the alleged trespass.</p> <p>The court gave the following charge, among others, to the jury, viz.: “To entitle the plaintiff to recover in this action, it is not essential that he should have been the actual owner of the land on which the fence and rails were situated at the time of the supposed trespass. If he placed the rails and fence upon the land, and was the owner of said rails at the time he made the fence, and so placed them in good faith, believing the land to belong to him, such improvements would equitably belong to him; and if he was in possession of said rails and fence, and while so possessed the same were taken and carried away by defendants, or either of them, or by their authority and direction, as to such party or parties thus taking and carrying them away, if he was thereby deprived of their value, he would be entitled to recover the value of such rails, and also pecuniary value of such direct injury and loss as followed, as the immediate consequence of the deprivation of his said rails and fence.’</p> <p>Verdict and judgment giving the land to the Bonners, and giving Wiggins $283 damages, $83 of which was remitted.</p>

<p>Appeal from Titus. Tried below before the Hon. B. F. Estes.</p> <p>The opinion states the facts.</p>

Error from Marion. Tried below before the Hon. B. T. Estes. ' Garrett, defendant in error, brought suit in the District Court of Marion county against the East Line and Red River Railroad Company, alleging that the company, on the 1st of January, 1877, forcibly, and without the consent of Garrett, entered upon and appropriated a portion of his land, surveyed by virtue of the J. H. Johnson headlight, and constructed the road-bed of the company through his land for the…

Tried below before the Hon. B. T. Estes. (Reference is made to the report of this case on its former appeal, in 46 Tex., 115. Hew features in the case will be apparent from thé opinion.)

Tried below before the Hon. B. T. Estes. This suit was brought by A. C. Turner, appellee, to recover two tracts of land (one situated in Franklin' and'one in Titus county) from F. P. Riddle, who was the son of Elam and Matilda Riddle, and who claimed as a purchaser from his parents, under purchase dated March 5, 1874. Hill and Christian obtained a judgment against Sam Richardson and Elam Riddle on December 16,1865.

Tried below before the Hon. John H. Rogers. Suit in trespass to try title to three hundred and twenty acres of land ivas brought by Samuel I). Elliott et al., appellees in this court, against appellant, Robert W. Campbell.

Tried below before the Hon. Green ,J. Clark. This case was submitted as an agreed case, but neither in the record nor in the briefs of counsel can any information be obtained as to the distinctive character of the action, unless it be found in the judgment, which provides for a partition of the land.

Tried below before the Hon. Spencer Dord. Daniel Cavit brought this suit against J. P. Archer and others, defendants below, in the District Court of Milam county, to the September Term, 1872, in trespass to try title, to recover possession of a league of land patented to George W. Glasscock, assignee of William Pharas, situated in Milam county, describing the land by metes and bounds, and claiming title to and possession of the same on the 20th of March, 1870, when…

Tried below before the Hon. X. B. Saunders. Suit was brought by J. B. D. Cole against Estell to try title to the southeast quarter of the Gholson league of land in Mc-Lennan county. The defendant pleaded, first, general demurrer; second, general denial; third, not guilty.

Error from Robertson. Tried below before the Hon. Spencer Ford.

Tried below before the Hon. J. E. Dillard, special judge. The case is stated in the opinion. The instructions of the court below arc too lengthy for insertion.

Tried below before the Hon. Green J. Clark. Suit brought by F. M. McWhirter against R. B. and Mary Bennett and D. T. Robinson, the appellant, on a note executed by R. B. and Mary Bennett to McWhirter’s wife, on April 11, 1877, for $150, alleged to have been executed by them for part of the purchase-money of land described in the petition. The petition alleged that Robinson was in possession of the land, claiming it, and asked judgment for the note and sale of the land.

Tried below before the Hon. A. J. Booty. Suit was brought April 20, 1870, by J. B. Scruggs, against Edmund Jones et al., freedmen, to try title to a tract of land described in the petition. J ones et al. disclaimed, and A. Pope, as landlord, intervened to defend the title. Pope died, and his death was made known to the court at the October Term, 1872; soon thereafter, J. H. and W. H. Pope, administrators of A. Pope, deceased, were made party defendants.

Tried below before the Hon. X. B. Saunders. John JD. Held: and still held, as the tenant of appellees; that in pursuance of said contract he had made permanent and valuable improvements on the land in controversy, and had cleared, fenced, and put in cultivation about one hundred acres of the land, and that these several improvements were of the reasonable value of $1,396.

<p>County bonds in aid of railroads—Special election—Action of County Court upon result of election final.—On the petition of fifty freeholders of Anderson county, an election was ordered by the County Court, and held in May, 1872, to take the sense of the voters on a proposition to issue county bonds as a donation in favor of a railroad. After the election the court made an order stating that, the election had been held in pursuance of the order; that a special registration of voters had been made for the election in accordance with the statute; that more than two-thirds of the qualified voters of the county had voted for the proposition ; that it was carried, and directing the issuance of the bonds on the complying with stipulations in the proposition. In January, 1873, the County Court issued to tiie road the bonds and levied a tax for that year and following years for their payment, which was paid until suit was brought to restrain the collection of the tax for causes stated in the opinion : Held—</p> <p>1. The act of April 12, 1871, (Paschal’s Dig., art. 7369,1 adopted under the Constitution of 1869, made the County Court the judicial tribunal to determine the result of the election.</p> <p>2. The validity o£ the election not having been questioned by the county officials, and the judgment of the County Court, prbnouncing it to have been held in pursuance of its order, having been acted on for a period beyond that allowed by law for a certiorari, a bill of review, or a writ of error, was not subject to revision by the District Court.</p> <p>3. It is not for the courts to impute improper motives to the Legislature in the enactment of the registration law, and the burden which may result from subsidies voted by those who were negligent in registering affords no ground for relief.</p> <p>4. When the result of an election is by law to be ascertained and declared by any tribunal, the action of that tribunal is conclusive, unless it be impeached or sought- to be reviewed in a direct proceeding instituted in time.</p> <p>5. The District Court properly disregarded the allegations of fraudulent concealment so far as they related .to the election and the official action of the managers and the County Court.</p> <p>6. If citizens entitled to vote were deprived of that right, or illegal votes were received, though a direct proceeding might have been sustained to set the election aside, such facts did not render the election void, nor will they authorize the determination of its result to be collaterally attacked.</p> <p>7. The County Court, in officially declaring that the company had fully complied with the terms of the proposition, prior to the issuance of the bonds, acted in their capacity of agents for the county, and after a tax had been levied and collected for their payment, it was no sufficient ground for canceling the bonds to allege a partial non-compliance by the railroad company with their proposition.</p> <p>8. The court does not concur in the proposition that the statute under which the election was held and the bonds issued was in derogation of the power conferred on the County Courts to assess and provide for the collection of a tax “ to aid in internal improvements.” (Const, of 1869, art. 3, sec. 32.)</p>

Tried below before the Hon A. J. Booty. ' The pleadings in this ease are quite lengthy and complicated. The opinion states sufficient for a proper understanding of the case. An issue was made as to the mental and physical condition of Isaac Edmundson at the date of the title bond executed by him to A. S. Ilayter. On this point a numher of witnesses were examined, whose testimony was conflicting.

■ Tried below before the Hon. E. B. Turner. O. M. Baker and B. Baker brought this suit on the 21st of December, 1878, in trespass to try title, against J. L. Compton, E. C. Einney, and others, to recover lot 57 in the city of Brenham, claiming title to and possession of the same on the 1st day of January, 1871.

Tried below before the Hon. A. J. Booty. On the 23d of January, 1877, appellee, James W. Flanagan, brought suit in the District Court of Rusk county against the appellant, Pleasant II. Pearson, in trespass to try title for the Ezekiel Norris survey of six hundred and forty acres of land in Rusk county, and, in addition, petitioned the court to cancel a deed • to appellant for some land from the sheriff of Rusk county for fraud and inadequacy of price.

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

Tried below before the Hon. A. J. Booty. Suit brought October 7, 1877, by John G. Abney, the appellant, against James W. Pope, John H. Pope, William II. Pope, Alexander Pope, Asa Pope, Miss Lou Pope, and Irvine Pope, a minor, temporarily absent from the State.

Error from Harrison. Tried below before the Hon. A. J. Booty.

Tried below before the Hon. E. S. Walker. This was a proceeding originally begun by the administrator of the estate of Frank M. Taylor against William P. Long, former sheriff, and his securities, on the 15th July, 1867. The suit was for clerk’s costs collected and not accounted for between August, 1858, and August, I860, The opinion states all the material facts.

Tried below before the Hon. A. J. Booty. This suit was brought on December 19, A. D. 1874, by William C. Snider against the International and Great Northern Railroad Company, the Texas Pacific Railroad Company, Andrew Taylor, the town of Longview, and about two hundred other defendants.

Tried below before the Hon. A. J. Hood. , On January 13,1874, the appellants executed and delivered to the appellee Hatlian Watson their promissory note, due twelve months after date, for the sum of §500, in gold, drawling interest at the rate of two and one-half per cent, per month from date. On the same day, to secure its payment, they executed and delivered to appellee J. W. Barnett a deed of trust upon their homestead.

Tried below before the Hon. A. J. Booty. Suit instituted in the District Court of Harrison county, by George Lane, appellee, to contest the election of J. B. Williamson, appellant, to the office of county judge of Harrison county, at a general election held therein for State and county officers, Hovember 5,1878.

Tried below before the lion. E. S. Walker. Suit was brought by William Cone, as administrator of the estate of W. E. Crum, against W. H. Crum, in the District Court of Anderson county, on March 28, 1878, in which he sought to set aside a claim against the estate of his intestate which he had allowed, for $141.65, on January 24, 1878, and which the county judge had approved on February 2,1878, in favor of appellee.

Tried below before the Hon. A. J. Booty. Suit bj7 P. H. Pearson against R. B. Flanagan and the other appellees, in trespass to try title, to recover about twelve acres of land in the town of Henderson, the same being a part of the Starr labor. A jury being waived, judgment was render for R B. Flanagan and the other appellees, from which Pearson appealed.

Tried below before the Hon. Joseph Bledsoe. Suit was instituted in the District Court of Bed River county on October 25,1877, by the Bed River County Bank, a corporation incorporated on September 24, 1874, under an act of the Legislature of April 23, 1874, against W. T. & George W. Yoiers, T. H. Young, J. L. Bryarly & Co., Crow, Hargadine & Co., Gilkerson & Gloss, Rodner D. Wells & Co., Heidenheimer & Bros., and a number of other defendants, on three promissory notes for…

Tried below before the Hon. William H. Burkhart. Suit was brought March 30, 1878, by' James D. Edwards against A. Ward and E. 0. Dewey for a balance of $2,257, with eight per cent, interest per annum from August 10,1877, due for certain machinery, known as a steam train, sold by plaintiff' Edwards to Ward & Dewey on June 27, 1877, and placed in the sugar-house on the Lake Jackson plantation, inBrazoria county, Texas, operated by Ward & Dewey.

<p>Descent and distribution—Heirs—Statute construed.—Under an act of the Legislature passed in 1856, land certificates were granted “to the heirs” of one who died in March, 1836: Held, That those who would have been entitled to inherit as heirs under the laws in force in 1836, were entitled to the legislative grant, and not those who were made heirs under the laws of descent and distribution in force in 1856, when the act was passed.</p>

Tried below before the Hon. John 0. Russell. The judgment from which O. P. Beid attempted to appeal was rendered during the Spring Term, 1879, of the Webb-county District Court. The following is the instrument filed as an appeal bond, and which received construction in the opinion: “ O. P. Reid n vs. ( No. 205.

Tried below before the Hon. L. W. Moore. Suit in trespass to try title, as well as for damages, brought by James T. Stovall, in the District Court of Fayette county, on the 24th day of April, 1876, against N. M. Carmichael, to recover' three hundred and twenty acres of land situated in Fayette county, patented to the heirs of M. B. Tatum on March 7, 1867.

Error from Nueces. Tried below before the Hon. John C. Russell. Suit in the District Court of Nueces county, in trespass to try title, for a tract of four hundred and eighty acres of land, situated in Nueces county, patented in name of John Onery by virtue of bounty warrant for that amount of laud. Trial at the Spring Term, 1879, of the District Court of Nueces county, by the judge, without a jury, and a judgment rendered in favor of the defendant, Reynolds.

Error from Be Witt. Tried below before the Hon. B. B. Claiborne. Suit brought by the defendants in error, FT. B. Burrow and wife, against the Gajoso Savings Institution, a banking corporation created under the laws of the State of Tennessee, and to recover the value of°$7,000 in United States bonds deposited by Mrs. Burrow with said bank as a special deposit, which, by the corporation, was converted to its owm use.

Tried below before the Hon. H. Clay Pleasants. Suit in the District Court of San Patricio county, by John Van Bibber against John M. Mathis et al., in trespass to try title. Van Bibber obtained a judgment in the District Court of Victoria county on March 16, 1867, against John Pollan and McD. Venable, which was founded on a note executed by Venable to Pollan on tbe 10th of January, 1860, due in three years from date, and indorsed by Pollan to Van Bibber before maturity.

Error from Fayette. Tried below before the Hon. I. B. McFarlane. Suit by W. S. Eobson and others, as heirs of Ann K. Eobson, against Konrad Tiemann, on the 7th October, 1875, to recover one-half of one hundred and fifty acres of land, title to the other half being admitted to vest in Tiemann. They made substantially the following allegations, viz.: 1. That the tract of land was community property of their parents, John K. Eobson and Ann K. Eobson. 2.

Tried below before the Hon. William H. Stewart. Suit in trespass to try title and sequestration, brought by George Maim, appellee, Eovcmber 3,1877, for lots 8, 9, and 35 feet of 10, in block 255, in the city of Galveston, against appellants, Webster and Williams. Appellants answered jointly by general demurrer, general denial, and plea of not guilty. Cause tried by the court without a jury. Judgment for appellee for possession.

Tried below before the Hon. Edwin Hobby. Suit begun May 15, 1873, by John and James Jackson, as executors of Hugh Jackson, deceased, joined by John Jackson, Jr., James Jackson, Jr., Decandia Barrow and her husband, Solomon Barrow, (the last four, save Solomon Barrow, being the children of Hugh Jackson and Elizabeth Jacksou, deceased, and their sole surviving heirs and legatees,) in trespass to try title, in the District Court of Liberty county, against Pinckney L. Palmer,…

<p>■ Appeal from Houston. Tried below before the Hon. W. D. Wood.</p> <p>"T. W. House & Co. recovered judgment by default, in the District Court of Houston county, February 22, 1861, against W. D. Williams and T. P. Collins, for $428.59, suit being brought on a promissory note executed by Williams to Collins, and indorsed by Collins. Collins was sued as indorser, but the judgment was against the parties jointly. The case was taken to the Supreme Court by writ of error, where the judgment was affirmed. • ■</p> <p>The court-house and records of Houston county were destroyed by fire in February, 1865. On July 3,1867, House & Co. filed a motion to revive the judgment. Service of scire facias issued July 20,1867, and was served. Williams being dead, his administrator, J. E. Bridges, failed to answer. On March 19, 1868, Collins answered by general demurrer and general denial, also denying that the suit was authorized by House & Co., and accompanied his answer with an authority from T. W. House to dismiss the suit; and on September 8, 1868, he again answered by general demurrer and 'general denial. On March 29, 1868, John H. Burnett filed a plea of intervention, setting up ownership of the note originally sued on and the judgment, alleging that he was indebted to House & Co. at the time, and brought the suit in their name, with their consent, he having transferred the note to them as collateral security, and that his indebtedness to House & Co. had since been paid.</p> <p>Collins died pending the suit, and his widow and executrix, who is the appellee, in September, 1869, answered by general demurrer, and also set up, under oath, that T. P. Collins never indorsed the note, and that ho was not served with process in the original suit. She pleaded in reconvention, alleging fraud. On a trial in April, 1871, appellee recovered judgment for costs and $100 damages, which was reversed by the Supreme Court. (House v. Burnett, 42 Tex., 486.) In November, 1877, the cause was again tried, resulting in a judgment for Burnett, upon the terms that Mrs. E. M. Collins pay one-half of the costs accrued to that date; but a new trial was granted.</p> <p>Since the.reversal, J. H. Burnett transferred the judgment to appellant, who, in November, 1878, intervened. Burnett,' after the transfer, was adjudged a bankrupt, and in April, 1879, his assignee filed a disclaimer. The cause was again tried on September 9,1879, before a jury.</p> <p>On the trial, the appellant read in evidence certified copies of the citation, sheriff’s return, and the judgment of the court, and also the testimony of W. M. Taylor, who stated that he prosecuted the original suit for plaintiffs (Burnett having himself having brought the suit) and obtained judgment by default ; that he informed the defendant Collins, the next day after the judgment was taken, that he had taken a judgment by default against him, and Collins replied he had a man between him and the judgment; that Collins ivas served with process, which he knew from the papers in the case; that at the time judgment was taken Collins’ place of business was not more than forty steps from the court-house; that he knew Collins’ signature, and did hot doubt that his indorsement of the note was genuine; that he was in the habit of examining petition and service before taking judgment by default, and believed he did so in this case, and that service was complete; but all he knew of the service was from the papers in the cause. The appellant also read the judgment of the Supreme Court against Williams and Collins, but Collins did not join in the writ of error.</p> <p>S. W. Cooper testified that about the first of the year 1861 Beckham (deputy sheriff) and Burnett came to his office in the court-house; Burnett went in the direction of the district clerk’s office and returned in a short time with papers in his hand and said to Beckham, “ Blair has not served Thomas P. Collins yet”; Beckham said it was not in his district, or something to that effect; Burnett told him to go and servo it, and if Blair complained, he would pay both of them; Beckham went in the direction of the store-house of Collins; shortly returned and asked witness to write his return, which witness did; that this matter was associated in witness’ mind with the Holcomb transaction, in which Burnett consulted him about Holcomb’s resisting an officer. J. II. Burnett testified to the same facts as Cooper; that he did not see Beckham give the 'papers to Collins, but knew that he was served.</p> <p>The answer of T. P. Collins, filed in his life-time, being general demurrer and general denial, with authority of J. W. House to dismiss the suit, was also read in evidence by the appellant.</p> <p>The appellee read in evidence the deposition of C. H. Blair, sheriff" in 1861, who stated that he kept a sheriff’s book, in which was recorded the official acts of himself and deputies in serving process. The book shows service on Williams by Beck-ham, but not on Collins, and he believes the book is correct from the returns made to him by Beckham. All papers served by his deputies were required to he returned to him, and he made the entries. He-was to serve papers in Crocket, and Beckham, who was appointed at the instance of J. II. Barnett, was to serve process in the lower part of the county; he (Blair) generally received process from the district clerk’s office, except in his absence, in cases of emergency, when the clerk was instructed to give papers for execution to his deputies. “ My docket does not show that Thomas P. Collins was -served, and if he was served by any one else, I do not believe it "was returned to me; I cannot say positively that he was not served.”</p> <p>The defendant on the trial read in evidence, over the objections of appellant, the depositions of F. A. Beckham, taken when a citizen of Trinity county, hut at the trial a resident of Houston county, and personally present in court.</p> <p>Beckman testified, by deposition, that he did not recollect having ever served any process on Thomas P. Collins in any capacity "whatever; did not recollect having served process in this case except as to Williams; did not serve any process on Collins, and had no memorandum of the same. On cross-examination he stated he could not swear positively as to service of Collins; did not recollect having served any process on him.</p> <p>The defendant then introduced the sheriff’s fee-book, and it showed that W. D. Williams was served on the 2d of February, 1861, but did not show any service on Collins.</p> <p>When placed on the stand by appellant, Beckham said that, after his recollection had been refreshed, he remembered having served some process on Thomas P. Collins, and it was in the case of T. W. House & Co. Judge Cooper said he wrote the return, but he (witness) thought Colonel Blair wrote it, but would not be positive. Blair had been complaining about the returns, and he (Blair) wrote it to show witness how to 'make a return, and the return was written in Long’s Hotel, and not in Cooper’s office. On cross-examination by appellee, he was shown an affidavit made by him in 1877, and tiled with appellee’s motion for a. new trial at a former term, which affidavit he said was true. It shows that he was appointed deput}7 sheriff in the fall of 1860 to serve process in the eastern portion of the county; says he served but one writ in Crocket, which he thinks was on Thomas P. Collins; Cooper did not ■write the return; that service of the writ was soon after he went into office, and 'in the fall of the year 1860, and Blair wrote the return to show him how to write returns. The service of this writ was connected in his mind with some service done near the Trinity-county line about the same time. That if he served any process on Collins, it was before service of Williams, and long before February, 1861; that the arrest of Holcomb for taking property from witness’ possession after levy in favor of J. II. Burnett, .was in the fall of 1860.</p> <p>At the request of the defendant, the court instructed the jury that “the law presumes the entries in a sheritf’s book, which the law requires the .sheriff to make, to have hcen properly and correctly made, and that the sheriff has properly discharged the duty thus required of him.” To which the court added, that “ the law also presumes that the return indorsed on a citation by the sheriff or his deputy is true until the contrary appears by satisfactory evidence.”</p> <p>Judgment was rendered for appellant against W. D. Williams’ administrator for the amount of the original judgment and interest, and in favor of the appellee and against the appellant for costs as against her, the jury, on special issues, finding that Collins was hot served with citation in the original suit, but that he indorsed the note on the 31st of December, 1859, and suit was not brought until January 31, 1861.</p> <p>The appellant made a motion for new trial, and to have the judgment reformed- so as to tax the defendant Mrs. E. M. Collins with one-half the costs up to the November Term, 1877, as ordered by the court in granting a new trial at that term. The motions were overruled, and Bandall appealed, assigning as error:</p> <p>“ 1st. The court erred in permitting defendants to read in evidence, over the objections of the intervenor, the depositions of F. A. Beckham, when said witness w7as a resident of Houston county and present in court.</p> <p>“2d. The court erred in giving in charge to the jury the special charge asked by the defendants, to the effect that the law presumes the entries in a sheriff’s book to have been correctly made, &c.</p> <p>“ 3d. The court erred in overruling the motion of intervenor to reform or correct the judgment so as to adjudge one-half the costs against the defendant Collins, in accordance with the order of the District Court made at- a former term in granting said defendant a new trial in this cause, said new trial having been granted on the terms that defendant pay half the costs, and the same not having been paid.</p> <p>“ 5th. The verdict of the jury in finding that Thomas P. Collins was not served with process in the original suit, is against the preponderance of the evidence, and not supported by evidence.”</p>

Tried below before the Hou. W. B. Wood. Suit by F. M. Oliver, for himself and as next friend of his two minor children, against Buhen and Frcdrieh Friday, in trespass to try title for three hundred and forty acres of land. Petition filed October 4, 1876; writ of sequestration sued out same day; next day writ issued, and land seized valued at $1,500; also fifteen hundred pounds of seed cotton, valued at $30, and one hundred bushels of corn, valued at $50.

Tried below before the Hon. Joseph Abbott. Suit was originally brought in 1868 against Eobert Adams by George Eoller, the appellee. It has been twice before this court, the last time reported in 46 Tex., 485. At the August Term, 1879, the case was again tried, and resulted in a verdict and judgment in favor of Eoller against A. P. Wooldridge, assignee in bankruptcy of Eobert Adams.

Tried below before the Hon. W. D. Wood. On the 8th day of March, 1874, Philip Alstin brought suit in the District Court of Houston county against W. II. Cundid' on certain promissory notes, three of which were, by the original and a supplemental petition, subsequently filed, alleged to be secured by a vendor’s lien on certain real estate described in the petition,—the three notes amounting to §3,500, besides interest.

Tried below before the Hon. W. D. Wood. W. F. Henning, on the 16th of May, 1879, brought suit against F. A. Hyatt and the Central and Montgomery Railroad Company on an instrument of writing.as follows: “ $551.56. Bavasota, Texas, May 12,1879.

Tried ‘below before the Hon. W. D. Wood. In addition to the facts stated in the opinion, it appears that the judgment for appellee Moon was for eighty acres of land, and based upon the ten years’ statute of limitation. Moon testified that be went on the land in October, 1856. On the 1st of March, 1872, he entered into the contract with appellant for the purchase of the eighty acres of land.

Tried below before the Hon. Edwin Hobby. Suit was brought in the District Court of Liberty county, March 81, 1876, by 0. C. and E. 0. Johnson, for the purpose of setting aside a sale of a tract of land containing about four .hundred acres, and canceling a deed under a sale made by H. C. and Cornelia Stone, joint administrators of the estate of E. T. Branch, deceased. The administration upon the estate was opened in 1867, and was closed in December, 1875.

Error from ¡Newton. Tried below before the Hon. H. 0. Pedigo.

Appear from Galveston. Tried below before the Hon. A. P. McCormick. Suit submitted on the following agreed case, under rule 51.

Tried below before the Hon. Edward Daugherty. Most of the material facts are stated in the opinion. The pleadings were quite lengthy, containing much matter not necessary to refer to. In the year 1767 the city of Laredo was founded as a frontier protection against the savages.

Tried below before the Hon. A. P. McCormick. Suit by John Hibbert, whose petition charged that on May 29,1871, John Hibbert leased of William Aylott, for a term of five years, lots 6 and 7 in block number 498 in the city of Galveston ; that at that time plaintiff was the owner of lot number 5 in the same block, having some time previously purchased the same for the purpose of erecting thereon permanent and valuable improvements; that appellant went into peaceable possession…

Tried below before the Hon. Edwin Hobby. Suit for $20,000 damages, brought by E. M. Wallis against E. O. W. McManus, for alleged malicious prosecution.

Tried below before the Hon. Edward Daugherty. Suit by the city of Laredo, brought April 18,1876, to enjoin defendants Martin, Macdonnell, and Hall from maintaining a ferry between the city of Laredo, Texas, and the town of New Laredo, Mexico.

Tried below before the Hon. William H. Stewart. Suit was brought by Louis Romanet in the District Court of Galveston county, on the 12th of September, 1878, against Francis Solyer and his wife, Caroline L. Solycr, in trespass to try title to recover lot number 3 in block 142, in the city of Galveston, and improvements; setting out the boundaries thereof, and'claiming title and possession of the same on the 12th of July, 1878, when defendants entered and dispossessed him, and…

Motion to file transcript from Houston, county. The opinion was based on the following motion, and on facts sufficiently 'stated in the opinion, viz. : “Julia A. Warren, appellant, \ vs. > J. C. Wooters bt al., appellees, j In the Supreme Court of the State of Texas, Galveston Term, 1880.

<p>From Starr county. Motion to affirm on certificate. The opinion sufficiently states the facts involved in the following objections to the motion to affirm without reference to the merits, filed by appellant, viz. :</p> <p>“ In this cause comes appellant, Enemencio Perez, by counsel, and submits to the court that the motion of appellee to affirm the judgment of the District Court of Starr county on the certificate accompanying said motion and said certificate, was not sufficient in law to authorize the affirmance prayed, because of the following, among other reasons, apparent of record: “First. It does not appear from said certificate, nor the record accompanying the same, that the said judgment was entered at a legal term of the District Court of Starr county, in this: that said term is not shown to have commenced at the time authorized by law.</p> <p>“ Second. It does not appear from said certificate, nor the record accompanying the same, that the notice of appeal entered in the cause was entered during the term of court at which said judgment was rendered, or was given in open court.</p> <p>“ Third. It does not appear from said certificate, nor from the record accompanying the same, when the alleged appeal was perfected, or that it was perfected at all.</p> <p>“ Fourth. The said certificate fails to conform to the requirements of law, in this: that it fails to state when the alleged appeal was perfected, if at all.</p> <p>“And for further cause why said motion should not be granted, the said Enemencio Perez sIioavs to the court that the said alleged appeal was by him abandoned as informal and insufficient, and that in lieu thereof he has since filed his petition for a writ of error upon the judgment in this case in the District Court of Starr county, to wit, on the 5th of January, 1880, and therewith his supersedeas bond in error as required by law; that citation in error upon said petition and bond was issued on the 14th of January, 1880, and on the same day executed and served upon defendant in error, Juan Garza, and that on said 14th of January, 1880, plaintiff in error filed his assignment of errors thereupon; all of which will more ful iy appear from the transcript of said petition, bond, writ, and the return thereon, and the said assignment of errors hereto attached and made part of these objections; and the said En emendo Perez submits to the court that said cause is now pending in this court on writ of error returnable to the next term of this court, and may not be lawfully disposed of otherwise, and he prays that said motion be refused.”</p> <p>The judgment of the court below was for $2,251.</p>

Tried below before the Hon. Everett Lewis. in trespass to try title, brought by Charles Kessler, in May, 1875, to recover of Daniel Draub et al. a lot and two store-houses in the town of Eagle Lake, Colorado county, Texas, and for damages. The defendant Draub answered disclaiming any interest in the lot or in the houses.

Tried below before the Hon. H. C. Pedigo. Suit was originally brought in a Justice’s Court of Jefferson, county, by Robert J. Rodgers against appellants, upon an open account. Verdict and judgment there for plaintiff for $110.72, from which defendants gave notice of appeal to the District Court, the civil jurisdiction of the County Court having been transferred in said county.

Tried below before the Hon. William H. Stewart. In this case, the counsel having failed to agree upon a statement of facts, the presiding judge certified to eighty-two pages of questions propounded to witnesses on the stand and their answers thereto, preserved by a stenographer, as the statement of facts.

Tried below before the TIou. Green J. Clark. Suit by S. L. Ball, J. D. Pickens, and R. H. Capers, on the 9th of February, 1877, against John S. Williams, appellant, in trespass to try title for sixty-four acres of land situate in Delta county. The plaintiffs, by their fourth amended petition filed August 8,1878, claimed title by purchase at sheriff’s sale, under a judgment rendered in Lamar county, in a Justice’s Court, against A. S. Howell.

Tried below before the Hon, James Masterson. All that is necessary to a proper understanding of the case is carefully stated in the opinion.

Tried below before the Hon. A. P. McCormick. Suit by John H. Sanford against the appellant, Pool, alleging that in July, 1878, William Pool, the defendant, “ contracted with the plaintiff to pay him $6,000, in consideration that the plaintiff would supply the material and erect a dwelling-house for defendant on lots 5, 6, and 7 in block 204, in Galveston, owned by the defendant, in accordance with plans and specifications in possession of the defendant; that plaintiff, in…

Tried below before the Hon. James Masterson.- Suit for damages, brought by B. A. Shephard against the appellees, for the recovery of $1,000, because of injury alleged to have been sustained by him in the depreciation in value of a tract of land owned by him in the city of Houston, caused by the defendants fencing and closing up a street lying in front of and adjacent to his land.

Tiled below before the Hon. James Masterson. Bertha Wolfe, the appellant, obtained a judgment in. the District Court of Harris county against Ann R..

Tried below before the Hon. H. 0. Pedigo. Snit by Thomas H. Snow et al, as heirs of Elvira Goddin, deceased, against Mather, Hughes & Saunders and M. H. Mather to set aside an allowance of a note made by M. H. Goddin and his wife Elvira for S750.30, executed June 30, 1861.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>All the facts of this case material in view of the opinion, will be found stated carefully in the opinion.</p>