Volume 55 — Texas Reports

Tried below before the Hon. Livingston Lindsay. Suit by Bryan, appellant, to try title to a labor of land in Austin county, on the west side of the Brazos river, above the town of San Felipe, and commonly known as labor Up. 4, the same being above the mouth of Mill creek, about nine and one-half miles southeast of Belle-ville. The land was particularly described by metes and bounds, and the suit was filed on the 29th day of March, 1873.

Tried below before the Hon. X. B. Saunders. Hanrick, claiming title under an eleven league grant, which purports to have been extended to Rafael de Aguirre, October. 22, 1833, sued Jackson in trespass to try title, to recover certain lands involved in this suit, claimed adversely by Jackson under certificate locations and surveys made in 1814.

<p>1. Trust deed—Subrogation.—It was agreed between a creditor, his debtor, and a third party, that if the third party would advance an amount of money sufficient to pay off the creditor’s claim, which was then secured by a deed of trust, the creditor would secure the repayment of the advance by transferring to the third party the deed of trust. This was done, and two days afterwards a newnote for the amount was made by the debtor to the third party, which on its face declared that it was secured by the deed of trust which had been formerly given to secure the original creditor. Held,</p> <p>(1) The transaction did not extinguish or discharge the deed of trust.</p> <p>(2) The transfer of the deed of trust to the third party, who advanced the money, subrogated him to the rights of the original creditor, and authorized him to foreclose the trust deed to secure the payment of the note given after the trust deed was executed.</p> <p>(3) Had the original creditor refused to transfer the trust deed, under the circumstances, after receiving the money to satisfy his note, equity would have enforced the transfer.</p>

<p>1. Vendor and vendee.—Where there is a total failure of title in the vendors, the vendee may, if the contract be executory and unfulfilled, refuse to perform it and reclaim any portion of the purchase money which he may have advanced. The same rule applies in an action against a oo-executor, who, acting alone, has agreed to convey land to which the estate had no title, and who has received a - portion of the purchase money; the will requesting the executors to act jointly in the settlement of the estate.</p> <p>3. Same — Pleading.— The fact that a co-executor, in such case, executed the contract to convey in the qualified character of co-executor, does not relieve him from the personal obligation to refund money obtained without consideration; nor would his special plea under oath denying that the contract to convey bound him individually, require of the plaintiff a replication in order to admit evidence of the issue involved, when the petition alleged the facts on which the liability was claimed.</p>

Tried below before the Hon. A, S. Broaddus. Suit begun on the 29th of December, 1873, by appellants against appellee, Silvey, to partition a tract of land. On the 11th of January, 1875, by an amended petition, the suit was changed from a suit for partition to trespass to try title.

<p>1. County warrants—Interest.— County warrants issued on claims allowed by the county commissioners’ court, which, under the statute, can be paid only in the order of their registration according to their class, which are silent as to interest, and specify no time of payment, do not bear interest. No opinion is expressed as to the power of the county commissioners’ court to issue warrants which stipulate for interest on their face.</p>

<p>Appeal from Starr. Tried below before the Hon. James A. Ware.</p> <p>Galvan, on the 6th of July, 1814, sued out an attachment against the property of Ramon Ramirez, to make $600 gold, and interest from October 3, 1872. This writ was levied upon sixty-five mares, sixteen mules, nineteen horses, branded-, found in possession of Ramon Ramirez on the Rancho Gonzalena, and valued at $1,000.</p> <p>The appellant claimed said property, and gave bond for the trial of right to the same in accordance with the statute.</p> <p>At the spring term, - 1875, of the district court, the cause came on for trial before a jury.</p> <p>There were no issues made up under the directions of the court, nor are there any pleadings in the transcript.</p> <p>The testimony introduced upon the trial for the claimant was:</p> <p>1. A copy of a deed of gift from the records of Starr county, made to her by Ramon Ramirez, who was her husband, on the 14th of July, 1868, duly acknowledged for record, conveying to her his interest “ in all stock, whether horses, cattle or sheep, branded thus: (giving her brand), which I have now on my ranch in said county of Starr, known as ‘ El Rancho de San Blas de la Gonzalena,’ situated on the lands known as ‘ Los Agostaderos de la Gonzalena y los de la Mesa de San Francisco,’ and the future increase of the same.”</p> <p>2. The claimant also- proved the recordation of her brand on July 14, 1868, on the records of brands of Starr county.</p> <p>3. Two or three witnesses testified for her, that they were her servants and paid by her; that the stock on the Gonzalena ranch was regarded by the servants as her stock; that her son kept the accounts of the ranch and stock in her name.</p> <p>Galvan read the attachment and return of the sheriff of the levy of the property named in possession of Ramon Ramirez. The sheriff testified that Ramon pointed out the stock to him; “ that he declared the stock to be his, but that he had put his property in his wife’s name to avoid just such trouble and cases as this.”</p> <p>The stock were seized upon the Gonzalena rancho.</p> <p>The judge charged the jury at length, embodying substantially these propositions as the law applicable to the case:-</p> <p>1. That the claimant must prove that the conveyance from her husband to her was made bona fide; and</p> <p>% That the animals levied on were not the increase of those mentioned in the deed; and that if she failed to do so, the jur;y should find for Galvan, and that the property was subject to execution.</p> <p>3. That “the fact of the brand being on the mules does not give her any claim to them -under the deed. The deed of gift does not mention mules, and unless she has proven that the mules are her property, find that the porperty is subject to the levy.”</p> <p>4, That if the conveyance was made by Eamon to his wife for the purpose of hindering and delaying his creditors, they should find a verdict for Galvan, and “ that the delarations of Eamon made subsequently to the conveyance are evidence of his intentions in making the conveyance, whether bona fide or not, but are not conclusive, and the jury will give his declarations such weight, in connection with the evidence in the case, as they think they are entitled to.</p> <p>The jury returned a verdict for Galvan, upon which judgment was rendered against the claimant and her sureties; a motion for a new trial was made and overruled, and the claimant appealed.</p> <p>The errors assigned embraced exceptions to the charges of the judge, to the overruling the motion for a new trial, and that the judgment is against the law and evidence.</p>

<p>1. Evidence — Husband and wipe.—The husband or wife is a competent witness in a suit in which they are joint parties, and in regard to a matter in which they have a joint interest.</p> <p>2. Same.—When the homestead right is involved in a suit between the husband and wife, who are defendants, and a third party who seeks to subject the property to the payment of his debt, the husband is a competent witness, even though it be the separate property of the wife.</p> <p>3. Insurance—Homestead.— Money due from an insurance company . to fhe owners Of a homestead, for loss sustained by fire in the destruction of the home building, is not subject to garnishment by one who held an unsatisfied mechanic’s lien on the building, before its destruction.</p> <p>4. Same.—The insurance money on the homestead is not subject to the payment of debts of a general character.</p>

Tried below before the Hon. J. A. Carroll. Robert B. Palmer et al. brought suit the 1st day of October, A. D. 1879, in Wise county, against E. M. Curtner et al., in trespass to try title to one thousand two hundred and eighty acres of bounty land, patented to Philip Turrain. Petition in the usual form. Defendants, on the 30th day of October, 1879, filed their answers, pleading: 1. Not guilty. 2. Statute of three years’ limitation. 3. Statute of ten years’ limitation. 4.

Error from Collin. Tried below before the Hon, R. R. Gaines.

<p>1. County attorney — Corporations — Action.—The power given county attorneys “ to represent the state in all cases in the district and inferior courts in their respective counties,” does not authorize a county attorney to institute suit in the name of the state on the relation of private parties, against a corporation, to enjoin it from exceeding its powers and thereby creating a public nuisance, except the suit be brought with the sanction and in the name of the attorney general.</p> <p>2. Parol evidence — Ambiguity — City ordinance.—When there is no ambiguity in the language of a city ordinance, parol evidence will not be heard as to representations made prior to its passage, or as to the actual intention or understanding of those by whom it was passed, there being no question of fraud or mistake involved.</p>

<p>Appeal from Wise. Tried below before the Hon. J. A. Carroll.</p>

Tried below before the Hon. A. J. Hood. Suit by W. J. Parks in his life-time, brought April 1, 1871, against Thomas V. Smith,-- Williams and 0.

Tried below before the Hon. Joseph Bledsoe. Suit brought by plaintiff in the district court of Gray-son county to recover damages for personal injuries received by him in the wreck of a train on defendant’s line of railway, on the Yth day of April, 1877, which plaintiff alleges occurred through the negligence of defendant’s servants, and by the use of inferior and inadequate machinery.

Tried below before the Hon. H. Barksdale. Suit brought by Daniel Daily in 1874, as assignee of a promissory note payable to the order of M. H. Oliver, made by John Tarlton, for the sum of $500. The consideration was the conveyance of certain lots in Ellis county, in the town of Waxahatchie, by Oliver to Tarlton, and which was recited in the face of the note. The note was dated December 22, 1873, and payable on the 15th of January, 1874.

Tried below before the Hon. G. H. Noonan. Suit by Taylor against John E. George, Hoses B. George and Joseph Zorn, Jr. The judgment is against Moses B. George and Joseph Zorn, and Zorn alone appeals.

Tried below before the Hon. X. B. Saunders. This case was submitted on an agreed statement of facts and points of law involved, as follows: This suit was brought by appellee, in the court below, to recover six hundred and forty acres of land, undivided, out of two tracts of land, one of six hundred and eighty-eight acres in Falls county, and the other of one hundred and, seventy-five acres in McLennan county, both patented to S. H. Renick, assignee of Miguel Mata, by virtue…

Error from. Harris. Tried below before the Hon. James Masterson. Joe Allen Myers, by his sister and next friend, Lou R. Myers, filed this suit against the Houston & Texas Central Railway Company, on the 1st day of June, 1874, to recover of that company damages sustained by him, because of personal injuries received on the 17th day of September, 1873, while in the employment of said company as a brakeman.

Tried below before the Hon. Joseph Bledsoe. Keep & Yates, a wholesale grocery firm, made an assignment by deed to J. H. Britton. The deed purported to convey all the property of Keep & Yates to Britton, and to provide that Britton should sell the same, collect the notes and accounts and apply the proceeds to the payment of the debts in the order and manner specified in the deed.

<p>Appeal from Ellis. Tried below before the Hon. Geo.. N. Aldridge.</p> <p>The opinion states the case.</p>

Error from Guadalupe. Tried below before the Hon. J. P. Richardson.

Tried below before the Hon. J. P. Richardson. Suit instituted in April, 1874, by the appellants, claiming as heirs of Frances E. Poe, wife of George W. Poe, an undivided half of George W. Poe’s headlight league and labor of land, against Brownrigg &■ Hatch, who claimed to be owners of the other half, and to whom the patents were issued for the whole league and labor; and praying partition of the same, and that their title be established. The land was located in two surveys.

Tried below before the Hon. D. M. Prendergast. Injunction suit brought by H. R. Jones et al. against N. Stallsworth, as justice of the peace, to enjoin him from issuing any process, talcing any affidavits, or hearing and determining any cases that may arise, for the enforcement of an “Act for the protection of the farming interests of the state, passed May 16,1873.” The petition alleged that an election had been had, as contemplated by the statute referred to, resulting in…

Error from Travis. Tried below before the Hon. E. B. Turner. Suit brought in the name of the state of Texas against John T. Cordray as principal, and his co-defendants as his sureties, upon two bonds given by him as sheriff and ex officio collector of taxes for Wharton county, for alleged defalcation as such collector for the years 1876 and 1877. One of the bonds was dated April 15, 1876, and made payable to the state of Texas in the penal sum of $4,000.

Tried below before the Hon. G. H. Noonan. The appellee, Frary, brought suit on an alleged contract made by him for his firm of Asa Frary & Bro., on March 1, 1878, with the firm of Bennett & Lockwood, of San Antonio, Texas. He alleged the contract to have been as follows, in substance: 1. That Bennett & Lockwood agreed to receive, bale, poison and ship bison hides at San Antonio, for a compensation of one-fourth of a cent a pound. 2.

Tried below before the Hon. J. P. Richardson. Suit instituted July 29, 1873, appellants claiming the lots in controversy as the heirs of Wm. S. Orr. Originally this was an action of trespass to try title to lots Nos. 7 and 8, in block No. 70, in Austin City; subsequently, by amendment, changed to a suit for partition and to try title. This amendment was filed June 1, 1874.

Tried below before the Hon. Gf. H. Noonan. Suit brought January 20, 1877, by Cook against Stephen Gould and Adams & Wickes, to recover from Gould the sum of $699, a balance due for building a bouse on a tract of land situated in Bexar county, and claiming a builder’s lien on the buildings constructed, and upon “fifty acres of land surrounding and including the same.” Cook claimed to have taken all the steps required by law to secure his builder’s lien, by having a bill of…

Aldridge, Suit by appellees upon a promissory note, made by appellants in their firm, name, for $3,000, payable to the order of the First National Bank of Dallas, and indorsed by that bank to plaintiffs, dated Dallas, Texas, April i, 1878, and payable sixty days after date, at the office of Donnell, Lawson & Co. Connor & Walker pleaded a general denial, and four special answers, in which, in different aspects, they alleged that the note sued on was void for usury.

Tried below before the Hon. W. H. Andrews. W. C. McKinney brought this suit for the cancellation of a deed which he made, conveying the right of way over a certain tract of land to the appellant, on the allegation of fraudulent representations and undertakings of the appellant’s agent, who solicited from him the deed, and was at the time acting as the appellant’s agent to procure rights of way for its railroad; also for damages for the breach of the stipulation of the…

Error from Ellis. Tried below before the Hon. George N. Abridge. On February 1, 1879, defendants in error, Edwin Bates & Co., instituted suit No. 1512 in the district court of Ellis county, against J. M. Dixon & Co., on a certain promissory note for $1,083.95, executed and delivered by Dixon & Co. to Bates & Co., of date August 15, 1878, due January 1, 1879, and in which suit Bates & Co. subsequently obtained judgment against Dixon & Co. for $1,116.46, principal and interest.

Washington. Tried below before the Hon. I.B. McFarland. Suit by appellee against John Shackey and 0. Hueske.

Tried below before the Hon. J. P. Osterhout. Sidney Pilcher filed her petition in the district court of Erath county on the 6th day of August, A. D. 1813, against A. L. Kirk, William Hughes and Henry French, for the recovery of one-third of a league of land, averring, in substance, that the land had been located by virtue of a certificate issued by the district court of Liberty county, Texas, on the 9th day of October, A. D. 1841, to John Gaylor; that John Gaylor, the…

<p>1. Admnistrator’s sale.—In 1845 an, administrator applied for the sale of land of the estate, which was ordered to be sold by the probate judge, by an order entered by him in vacation. The sale was in vacation, by an order entered by the probate judge, decreed to be approved and confirmed, and that the administrator make title ■to the purchaser. Held, that the decree was an utter nullity, which could not serve as a foundation upon which to build up title in the purchaser.</p> <p>2. Practice.— It is the duty of the court to determine the legal effect of proceedings in administration affecting title, and to instruct the jury as to the regularity of a valid administrator’s sale.</p> <p>3. Limitation — Husband and wipe.—The eleventh (11th) section of the act of January 20, 1840, was intended to apply to illegal sales of the wife’s property, made by the husband during coverture, and to such sales only.</p> <p>4. Limitation — Tacking disabilities.—In avoiding the statute of limitations, successive or cumulative disabilities cannot be regarded; minority cannot be tacked to coverture, and the saving of the stat^ ute is only to those to whom the right first accrues.</p> <p>5. Limitations.—The absence of a defendant from the state, or the absence of any vendor through whom he claims, can, in trespass to try title, when he invokes the statute of limitation for his protection, have no effect upon Ms rights, if, during the period of absence, possession was held by his tenant or agent.</p> <p>6. Limitations.—The fact that the deed under which a defendant who invokes the five years’ statute of limitations claims does not convey a good title to the land, does not prevent it from being such a deed as he may avail himself of with the other incidents which the law prescribes as a defense, under the five years’ statute of limitations.</p>

<p>1. Judgment by consent.—It is no valid objection to a judgment by consent, that the cause of action was so defectively stated as to have required a reversal liad the judgment been rendered on a contest of rights between the parties. The effect of such a judgment is a waiver of all errors except such as would involve the jurisdiction <of the court.</p>

Error from Erath. Tried below before the Hon. J. E.' Fleming. Suit by Davenport against the county surveyor of Erath county to compel a survey of one hundred and sixty acres of land claimed by him as apre-emptor, and against Satterwhite and Throckmorton, who, it was alleged, were trespassers who had forcibly ejected the plaintiff from possession. The action was dismissed as to the surveyor, and judgment rendered after trial against the other defendants.

<p>Appeal from Maverick. Tried below before the Hon. Thomas M. Paschal.</p>

<p>1. Jurisdiction.— The probate court had no jurisdiction over contests for the estate of a decedent between the administrator and one claiming it by virtue of a gift causa mortis; and the district court would acquire no jurisdiction by an appeal prosecuted by the administrator from a judgment rendered against him and in favor of the claimant. An appeal in such proceeding from the judgment of the district court was dismissed at the costs of the claimant, by whom the suit was improperly brought.</p>

Tried below before the Hon. A. S. Broaddus. The agreed statement of facts is as follows: John McLennan sold a tract of land, situated in Mc-Lennan county, Texas, to Thos. J. Harris, on the 25th day of June, 1859. He took three promissory notes for the purchase money, each note for the sum of §2,300, payable respectively on January 1, 1860, January 1,1861, and January 1, 1862, each bearing ten per cent, interest.

<p>1. Trespass to try title.— A plaintiff who, in trespass to try title, , claims as a purchaser of school land, under the act of April 24,1874 (Laws of 14th Leg., p. 142), must show a valuation of the land as required by that act to entitle him to recover. To show that there was an application for survey, and a survey made for him, that he executed his obligation to the state for a specific amount, and had paid installments on that amount to the state treasurer, is not sufficient.</p>

Error from Tom Green. Tried below before the Hon. A. Blacker.

Tried below before the Hon. J. P. Richardson. This suit was brought by Coleman to recover of Smith a tract of one hundred and two acres of the Burleson league. The tract is described accurately by metes and bounds. The petition is in the ordinary form in trespass to try title, and concludes also with a prayer for an order of survey of the land, that the lines may be plainly marked and corners established, and for general relief.

Tried below before the Hon. E. B. Turner. Suit for the trial of the right of property to eighteen bales of cotton in the seed, the bales being estimated at five hundred pounds each. The cotton was levied upon as the property of Jethro Atkinson, to satisfy an execution in favor of the appellees, A. L. Reid and J. R. Smith.

Tried below before S. P. Carpenter, special judge. The statement of the cause made by appellant being approved by counsel for appellee, and found ■ substantially correct, is in the main adopted.

Tried below before the Hon. W. H. Andrews. Suit in trespass to try title, brought by plaintiff to recover of the defendant Barley a portion of the Mary Scott survey. The heirs of Mary Scott, Martha, with her husband, Malcolm Johnson, Sarah Scott and Elbert Scott, on September 26, 1855, sold the land in controversy, and conveyed it to Geo. H. Pegues, reciting the consideration paid as $400. At that time Elbert Scott was a minor.

<p>Appeal from Bell. Tried below before the Hon. X. B. Saunders.</p>

Tried below before the Hon. A. S. Broaddus. Suit in trespass to try title, brought by P. N. Spofford against H. L. Bennett and others. The defendants pleaded “not guilty,” and the defenses of the three, five and ten years’ statutes of limitation. The plaintiff produced in evidence a colonial grant to Thomas Byrd, and a chain of title from the grantee down to himself.

Tried below before the Hon. F. P. Wood. 1. In 1858 various .persons, some of them claiming as the heirs of Joseph H. Punchard, and others as the vendees of other of the heirs, brought suit in Hill county for a league of land granted to Harriet and Lucretia Punchard, heirs of Joseph Punchard, deceased. The parties plaintiff sued as joint owners of the league.

I. B. McFarlane. Suit brought against appellee on the 24th day of June, 1814, to recover $50,000 damages, occasioned, as claimed in the petition, by the willful neglect or failure of appellee to transmit and deliver, within a reasonable time, the following telegraphic message: “ Giddings, Jan. 16, 1874, A. D. “To C. O. So Relle, “Office over Miller’s Stable: “Tour mother is dead; come on night train. Conveyance at T. Wroes. (Signed) “ Wm.

<p>1. Occupation tax.— Though telegraphic companies may be subject to congressional regulation, they are also subject to pay occupation taxes to the state; at least until congress shall otherwise provide..</p> <p>2. Occupation tax—Inter-state commerce.—An occupation tax imposed on a telegraph company, which graduates the tax according to the business done, regardless of a distinction between business dons wholly within the stats and business done in part without the state, is free from the objection that it regulates or obstructs interstate commerce.</p> <p>3. Interest—Taxes.—The state cannot recover interest on taxes, payment of which has been deferred, unless the statute authorizes interest on such taxes.</p>

Tried below before the Hon. W. A. Blackburn. Action of trespass to try title to six hundred and forty acres of land, brought by appellant, Thomas Sellman.

<p>1. Citation.— Though, under the Revised Statutes (arts. 1315, 1319, 1330), the citation to a defendant should state, amongst other things, the nature of the plaintiff’s demand, it was not designed to supply in this respect the place of the petition; a general statement notifying defendant of the character of plaintiff's demand, and avoiding any attempt at detail, is sufficient.</p> <p>2. Same—Statutes construed. —In a suit against an incorporated company, citation may be served upon a local agent representing the company in the county in which such suit may be brought (R. S., 1333). A petition alleged that a defendant incorporated company had an office “for the transaction of business as a common carrier in the city of Austin, Travis county, Texas, at which place the agent of said company is Robert S. Collins.” The suit was brought in Travis county. Held, that service of citation on Robert S. Collins was sufficient to hold the defendant to answer the petition, and that no judicial ascertainment of the agency was required to authorize a judgment by default.</p> <p>3. Service.—When service of citation is made upon the agent of an incorporated company who resides in the county where the suit is brought, the defendant company, though its principal office may be elsewhere, is not entitled to be served -with a certified copy of the petition.</p> <p>4. Fact case.—See opinion for facts stated in motion and affidavits to set aside a judgment by default, which so far excused a failure to answer, that, if accompanied with a showing of a meritorious and valid defense, should have authorized the granting- of the motion.</p> <p>5. Practice.— A defendant against whom a judgment by default has been rendered cannot complain that plaintiff’s claim for damages was excessive, if, after overruling his application to set aside the default, the court permitted the defendant to introduce evidence to show the true extent of damage sustained.</p> <p>6. Common carrier—Railroad company—Bill op lading.— From considerations of public policy, common carriers are made liable under the statute (R. S., art. 378), and under the decisions of the courts of Texas, as at common law, for all losses not occasioned by the act of God or the public enemy; and any exceptions or special contract seeking to vary that liability are invalid. But if the shipper practices a fraud on the carrier by fraudulently concealing, either through his acts or omissions, the value of the article shipped, the carrier is discharged.</p> <p>7. Fact case.— See case for facts, stated in an application to set asido a judgment by default, which were held insufficient to show such a valid, meritorious defense as to authorize the granting of the applicátion.</p> <p>8. Hearsay evidence.— In a suit for damages resulting from the loss by a common carrier of a family portrait, a member of the family was permitted to testify that he knew the value (stating it) of the painting from family tradition and from his deceased father. Aside from this, artists testified that the painting was worth that amount, though other witnesses swore to a le.ss value. The court in the charge authorized the jury to look to the original cost, etc., in determining value. Held,</p> <p>(1) That the error in permitting the hearsay evidence required a reversal of the judgment, exception being taken in time.</p> <p>(2) Whenever improper evidence has been admitted which may have influenced improperly a jury, the error requires a reversal of the judgment.</p> <p>9. Depositions—Practice.—Notice of objections to the manner or form of taking depositions is in time if given before both parties have announced ready for trial. Until then the trial of the suit has not, in contemplation of the statute, commenced. R. S., art. 2235.</p> <p>10. Measure of damages—Evidence.— It is error to permit a witness to give his opinion as to the measure of damages, that being matter of law.</p> <p>11. Witness—Evidence.—A witness may, while on the witness stand, refresh his recollection as to the value of specific articles by referring to a bill of particulars, known to him to be a copy of a correct memorandum of their value, made by himself.</p> <p>13. Damages—Measure of damages.—In a suit to recover damages • for the loss or destruction of family portraits, which have no market value, the jury may look to their original cost and to the probable cost of reproducing and replacing the same.</p>

Tried below before the Hon. J. M. Lindsay. Suit by Louisa P. Hodges and others, as the heirs of Wm. B. Haws and his wife, Catharine Haws, brought in May, 1871, to recover their mother’s community interest in land.

<p>• Appeal from Bastrop. Tried below before the Hon; J. P. Richardson.</p>

<p>Appeal from Anderson. Tried below before the Hon. Peyton P. Edwards.</p> <p>The opinion states all facts necessary.</p>

• Appeal from Bowie. Tried below before the Hon. B. E. Estes. Suit brought August 4,1879, by Kate A. Moore and her three children, the children suing by J. B. Barkman, as special guardian, to recover of appellants $25,000 damages alleged to have been sustained by the death of Spencer C. Moore, caused by the alleged negligence of the appellants. On the 5th of October, 1880, Mary C. Moore, the mother of Spencer 0.

Tried below before the Hon. W. A. Blackburn. Appellants, who were riparian proprietors from the source of Simpson’s creek down to a point above the land of appellee, were accustomed to use the waters of that stream for irrigation. Before irrigation began, the water ran in the channel by the land of Brown. The testimony was conflicting as to the condition of the water of the stream on appellee’s land after irrigation was resorted to by appellants.

Tried below before the Hon. Spencer Ford. In 1870 W. S. Q-. Wilson brought this suit in the district court of Milam county, against D. 0. Jones and wife, to recover a tract of land containing eight hundred and thirty-seven acres (less two hundred acres, their homestead), being situated in Milam county. The petition was in “ trespass to try title,” alleging that defendant, Applewhite Jones, wife of D. 0.

<p>1. Census — Constitutional law — Collector of taxes.— In determining whether a sheriff elected in 1880 was, under section 16, art. VIII, of the constitution of 1876, also ex officio collector of taxes by reason of his county containing less than ten thousand inhabitants, under the “last preceding census of the United States,” the list of the enumerator taking the .tenth census for the county, if duly certified as such, and filed in the office of the county clerk, prior tó his election, will govern.</p> <p>2. Mandamus.—It is well established that mandamus is the remedy to restore one to an office from which he has been illegally ousted, or to place him in possession of one illegally detained, and to cause delivery of its papers, books and archives.</p>

Tried below before the Hon. L. W. Moore. Suit brought by the appellants on November 15, 1873, contesting the validity of the probate of the will of Susan M. Larremore, proved and ordered to be recorded by decree of the county court of Caldwell county at its April term, 1869, praying that it be set aside and the property of the estate partitioned among the heirs. The plaintiff alleged the invalidity of the will and its probate, for— 1.

Tried below before the Hon. H. Barksdale. July 2, 1874, Mary E. Robinson and Sarah J. Choat (joined with their husbands), as heirs of Israel Earles, brought suit in “ trespass to try title ” for three hundred and twenty acres of land against Benjamin Fulton and Charles Harold. July 13, 1874, defendants demurred and pleaded not guilty.

Tried below before Hon. C. B. Kilgore, special judge. On the 19th of July, 1875, B. J. Norton, appellee, filed his petition in the district court of Wood county against L. T. Edwards, for specific performance of a parol contract to convey lot No. 11, in block No. 3, in the town of Mineola, Wood county, Texas.

Tried below before the Hon. Peyton F. Edwards. Suit was brought by the appellants against the appellees, to recover from them the alleged value of houses and machinery at Nechesville, Texas, known as the Miller, Billups & Co. gin factory and mill, situated on the town lots of the appellants, in the town of Nechesville. Appellants averred in their petition, that, as surviving partners of Messrs.

Tried below before the Hon. J. P. Richardson. Appellant brought this suit March 5, 1875, against appellees, to recover seven hundred acres of land out of the one-third of a league patented to Cunningham, as assignee of Dempsey Pace; the patent bore date the 26th day of September, A. D. 1845. The deed from Cunningham to appellant was dated 8th day of June, 1847.

<p>1. Writ of error—Practice in supreme court.—A writ of error will be dismissed unless it appears that all the defendants in error have been cited. The question of error will not be considered unless all the parties defendant are thus brought before the court.</p> <p>2. Fact case.— See opinion for facts in which it was held that a writ of error should be dismissed.</p>

Tried below before the Hon. John C. Robertson. Meyer and wife, who were residents of New York, at the April term, 1881, filed their application to transfer the cause to the circuit court of the United States, next to be held in Smith county, Texas. Meyer and wife, who were defendants, against whom the suit was brought, appeared before the court at the preceding term, service having been made on them, and pleaded to the merits.

<p>1. Powers—Contract.— In a mortgage with a power to sell, the power to make title, though not expressed, will be inferred as a necessary incident.</p> <p>2. Purchaser — Homestead — Equity.— When a homestead was sold by a creditor under a mortgage with a power to sell, the same having been executed in 1875, the creditor was not authorized to apply the overplus resulting from the sale, after liquidating his secured debt, to the extinguishment of a further amount due him and unsecured. The mortgagee having sold the homestead and become the purchaser thereof, was entitled to no benefit from his purchase until he had paid to the mortgagors whatever remained from proceeds of sale after satisfying his secured debt.</p>

Tried below before the Hon. Francis P. Wood. Suit brought in the district court of Navarro county on March 26, 1873, by the appellants against John D. Clark and Margaret Gilliam.

<p>Appeal from Ellis. Tried below before the Hon. Geo, H. Aldridge.</p>

Tried below before the Hon. L. C. Alexander. This suit was instituted April 23, 1878, by Frankland against Cassaday, for the recovery of two tracts of land in McLennan county, in trespass to try title. The defendant pleaded not guilty, and special pleas which it does not become material to notice. The title of plaintiff and defendant is traced to one R. P. Jones.

Tried below before the Hon. E. B. Turner. The Willis Donahoe, Jr., league and labor was located in Williamson county in two tracts, one on Brushy creek and one on Donahoe creek; both tracts were surveyed in 1853, and subsequently patented in the name of G. W. Glasscock, assignee of Donahoe. The A. L. Eaves league was located in Williamson, Milam, Comanche and Callahan counties, and also patented to G. W. Glasscock, assignee of Eaves.

<p>Appeal from Anderson. Tried below before the Hon. Peyton F. Edwards.</p> <p>The opinion states the case.</p>

<p>Appeal from. Tarrant. Tried below before the Hon. A. J. Hood.</p> <p>The opinion states the case.</p>

<p>Appeal from San Saba. Tried below before the Hon. W. A. Blackburn.</p>

Tried below before the Hon. Green J. Clark. Gaston & Thomas brought trespass to try title to the land in controversy against W. B. Dashiell, who pleaded “not guilty.” Hester Morrow became the guardian ad litem of Alfred H. and Ann R Dashiell, minors, and as such intervened in the suit.

<p>Appeal from Marion. Tried-below before the Hon. B. T. Estes.</p>

<p>1. Judgment.—A judgment was rendered in 1800 for a community debt against a surviving wife in her representative capacity, whose husband, dying in 1859, had by will appointed her his executrix, with a provision that no other action should be had in the county court concerning his estate than the probate and registration of his will and the return of inventory of the estate. That judgment was affirmed on appeal by the supreme court. Those entitled to the estate were never cited to give bond under the provisions of the act of 1848 (Hart. Dig., 1219), nor was a bond executed. Under that judgment execution was levied on community property, which was sold to satisfy it. In a suit by the heir against one claiming under the purchaser at that sale, held,</p> <p>(1) The judgment was valid and binding in so far as it affected the property in controversy, and the heir was bound thereby.</p> <p>(2) Her designation as executrix in the proceedings on which judgment was obtained was immaterial, since the pleadings disclosed that the suit'was against her in her representative capacity, and that such capacity was that of survivor.</p> <p>(3) The judgment being valid when rendered, the subsequent marriage of the widow would not have the effect of rendering the sale of the property made after her marriage, void, so as to subject it to attack in a collateral proceeding</p>

Tried below before the Hon. Reuben R. Gaines. Suit brought by appellant S. E. Watson against W. B. Aiken, on the 27th day of October, 1880, to cancel a trustee’s deed from A. M. Taylor, trustee, to Aiken for a tract of one thousand four hundred and thirty-eight acres of land in Red River county, surveyed for Abner McKenzie, to remove clouds from plaintiff Watson’s title, for general relief, etc. The grounds alleged in the petition are as follows: 1st. That on the 27th day of…

Tried below before the Hon. George N. Aldridge. Proceeding in the nature of a quo warranto, filed by the appellant Seay, county attorney of Dallas county, in behalf of the state, on the relation of John Stone, against Zimri Hunt, on the 9th day of May, 1881, to show by what warrant he held and claimed the office of mayor of the city of Dallas.

Error from Cook. Tried below before the Hon. J. M. Lindsay. E. M. Samuels & Sons brought this suit against T. H. Hays & Co. on the 19th day of October, 1874, to recover $763.50 claimed to be due by account, which was attached to and made part of the petition. The principal items of the account were acceptances in favor of divers parties, drawn by Hays & Co. on Samuels & Sons. The defense was a general denial and plea of payment.

Tried below before the Hon. Wm. S. Bledsoe, special judge. On the 5th of February, 1872, J. W. H. Blackwell and his wife, Martha Blackwell, were the owners of the lots in controversy, occupying the same as a homestead.

Tried below before the Hon. Green J. Clark. Amongst other charges given, the jury were told that if they should believe from the evidence that the sheriff had been notified by the plaintiff in this execution, or his attorney of record, that he would be present at the time of the sale, and that he desired to bid on the land, and that the sheriff believed, or had reason to believe, that Johnson, the bidder, was present to represent the plaintiff or to bid for him, and that the…

<p>1. Separate property.— Money was given by the father either to his daughter-in-law or his son (her husband), with which to buy a homestead, the title to which should be taken in the wife’s name. The money, amounting to $2.000, was thus invested, leaving a balance of §500 due, for which the joint note of husband and wife was given, and the deed was made to the wife. The husband was at the time in debt and improvident. One year (1876) he rendered the property for taxes in his wife’s name. The deed was made by the father of the wife, but the money furnished by the father of the husband. In a suit to recover the deferred payment for the land and to subject it to sale, judgment was rendered against the husband alone, and the mother of the husband became the purchaser with a f ull knowledge of all the facts. In a suit afterwards brought by the wife against her husband and the purchaser to set aside the sheriff’s sale and to remove cloud, held,</p> <p>(1) As between the wife and husband and all parties having notice, the deed to the wife vested title in her as her separate property.</p> <p>(2) Such, under the circumstances of this case, was the legal effect of the deed whether the purchase money became by its gift the separate property of the husband or wife.</p> <p>(3) The effect of the deed depended on the intention of him or them who at the date of its execution had the right to control it. In arriving at that intention all contemporaneous circumstances and declarations are evidence of the most satisfactory character.</p> <p>(4) It would seem that the wife was not entitled to equitable relief without first discharging the deferred payment, evidenced by the joint note of herself and her husband.</p>

Error from McLennan. Tried below before the Hon. L. C. Alexander. Suit by Wm. Steele in trespass to try title against B. O. Gambrell in his life-time, to recover one hundred and sixty acres of land in McLennan county.

Error from Hunt. Tried below before the Hon. Green J. Clark.

Error from Burleson. Tried below before the Hon. E. P. Wood. November 12, 1859, W. S. Holmes sold to B. B. Baker two thousand three hundred and fifty-six acres of land out of the A. Colvin league survey in Burleson county, taking notes amounting to $1,500, secured by vendor’s lien on the land sold. In 1867 he placed the notes in the hands of Morriss (defendant in error), an attorney, for collection.

Tried below before the Hon. Geo. H. Noonan. Suit brought by Concepcion Arambould (the former wife of Ignacio Perez, deceased), joined by her present husband, Refugio Arambould, in behalf of herself and her two minor children, Josefa and Trinidad Perez, by her first marriage, against Jacob Linn and wife, to set aside conveyances made by Ignacio Perez during his lifetime, and .shortly before his death, of certain parcels of land specified in the petition, conveyed to Jacob…

Tried below before H. E. Eldridge, special judge. Suit in trespass to try title brought in the district court of Cooke county, April 9, 1879, by the appellees against appellant.

Tried below before the Hon. A. J. Booty. Article 1401 of the Revised Statutes provides, “Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof.