Volume 56 — Texas Reports

Tried below before the Hon. Green J. Clark. Suit filed on the 2d day of July, 1879, by appellees against appellant T. S. Rogers, as indorser of a promissory note for $2,000, executed by Y. M. Kelly to T. S. Rogers, and indorsed by the latter to appellees. Judgment against the estate of Y. M. Kelly had been previously rendered.

Tried below before the Hon. W. A. Blackburn. This case was complicated both by pleading and evidence, but is sufficiently stated by the opinion to properly understand the conclusions announced.

<p>1. Homestead.— The title to the homestead of the husband and wife, upon his death in 1863, he dying insolvent, and no constituent of the family other than the widow surviving him, vested in the widow, and a conveyance of the same by her, made afterwards, vests the title in the purchaser.</p> <p>2. Deed — Contract.— A deed from a mother to a son recited a consideration paid. Afterwards the mother died, and by will devised the land to another, who, in an action of trespass to try title brought against him by the son’s hem, under a plea of “not guilty ” attempted to show that the real consideration of the deed from the mother was the son’s promise to pay her a stipulated sum yearly, which was never paid. Held,</p> <p>(1) The deed from the mother to the son, reciting a consideration paid, and love and affection, was an executed contract.</p> <p>(2) The deed was not cancelled by the failure to pay the stipulated annuity.</p> <p>(3) In the absence of evidence showing the inability of the son’s estate to comply with his alleged agreement, proof that he failed to pay the annuity would constitute no defense.</p> <p>3. Estoppel.—No agreement made by the guardian of a minor concerning the partition of an estate in which he is interested, can, unless ordered or sanctioned by a court having jurisdiction, operate an estoppel on the minor.</p>

<p>1. Judgment — Rules of court.—A judgment was entered on the 16th of December, 1879, on a motion to enter the same nunc pro tune as of the 6th of December, 1879, that being the last day of the preceding term. The cause had been submitted to the judge for trial on the law and facts in November, during the term which closed December 6, 1879. No consent to a continuance after submission was agreed to by counsel and placed of record, as required by rule 65 for the district courts. The judgment sought to be entered had never been read in open court; it bore no file-mark of the clerk showing it had been filed during the former term, nor was there any entry of that term in the judge’s docket showing its character. The judge, in signing an exception to his action, on granting the motion to enter mine pro tune, stated that the motion was granted because the judgment was “ the exact judgment rendered by the court on the 6th December, 1879.” Held,</p> <p>(1) The entry of the judgment was in violation of rule 65 for the district courts.</p> <p>(3) To authorize the entry of a judgment nunc pro tunc, the proof that it was rendered should he. absolute and definite,— absolute from the record that a judgment was rendered, and its terms and conditions should be distinctly established by competent testimony.</p> <p>3. Fact case.— See opinion for facts pleaded, held sufficient to authorize the introduction of parol testimony to prove the consideration for a deed, with a view of showing that the land was separate property.</p> <p>3. Tenant in common.— The deed of a tenant in common to a specific portion of the common property is not void, but will be respected so far as it may be consistent with the rights of co-tenants.</p> <p>4. Compromise.— The compromise of a doubtful right is a sufficient foundation of an agreement, and such compromise "will not be set aside though it should afterwards appear that the party taking something under the contract was really entitled to nothing, provided the compromise was in good faith, and without concealment, fraud or misrepresentation.</p>

Tried below before the Hon. A. J. Hood. J. B. Wilson and Winfield Scott, as the assignees at sheriff’s sale of Alex.

Tried below before the Hon. John P. White. Suit by Jane C. Holmes et als., brought the 23d of January, 1813. In the petition it was alleged that the plaintiffs, as the widow and children of Eli E. Gaither, were the legal and equitable owners of a league of land on the San Antonio road, in Hays county, known as league No. 1, and the same was set out by metes and bounds. That they deraigned title to the land: First.

Tried below before the Hon. J. P. Richardson. Suit brought by the appellee to establish the alleged nuncupative will of Hiram P. Ferrill, deceased, which purported to devise to Presilla Ferrill a certain designated lot in the city of Austin, and providing that John M. Holland, as executor of his said will, should take possession of the remainder of 'his property, and with it pay his debts.

Tried below before the Hon. E. Lewis. Suit by Pfeuffer & Ireland against appellant, alleging that appellant had forcibly taken possession of and evicted appellees from their land; that defendant had already greatly damaged appellees in cutting and filling said property and in divers ways destroying its value; that the line of the road was then located and established from east to west across the land the entire distance, thereby partially injuring the same in value and…

Error from Cooke. Tried below before the Hon. J. A. Carroll, special judge.

<p>1. Action—Statute construed.—The fact that six months has not expired after the date of publication of notice of the appointment of an assignee, under the provisions of the law regulating assignments for the benefit of creditors, approved May 34, 1879, can furnish no defense to an action brought against the assignee for 'the purpose of protecting and securing the estate for ultimate distribution.</p> <p>2. Same.— If at any time after executing bond an assignee under said act misapplies assets confided to his care for the benefit of creditors, whether through negligence or fraud, the creditors may maintain an action against him to preserve the trust estate. In such case it is immaterial whether the assets misapplied were scheduled in the assignment or not, if the property belonged to the assignor, and was received by the assignee as a part of his estate.</p> <p>3. Same — Statutes construed.— It is not necessary that such action should be brought in the name of the assignee, under the ninth section of the act, but it may be brought by any of the creditors in their own names for the benefit of all.</p> <p>4. Pleading.— In a petition filed by creditors against an ássignee appointed under the act of March 34, 1879, for misapplying the assets received by him, there was no distinct averment that there did not remain in the hands of the assignee assets not misapplied, sufficient to discharge the debts. On general demurrer, held, ■</p> <p>(1) That the omission was not fatal.</p> <p>(2) The statute having been made for the. benefit of insolvent debtors and their creditors, no presumption can arise that a debtor who avails himself of its provisions is solvent.</p> <p>(3) Conclusion against the demurrer reached in a case where the property misapplied was alleged to be of a value equal to two-thirds of the indebtedness of the assignor.</p> <p>5. JURISDiCTiON.— The district court, under its general equity powers, has, in a suit brought against an assignee for the benefit of creditors, who is charged with misappropriating the assets, power to remove him and appoint another.</p>

<p>1. Appeal bond—Jurisdiction.— An appeal bond, executed by plaintiff in the court below, which has been approved by the district clerk, the sureties on which were sureties on plaintiff’s bond for costs, is sufficient to give the court jurisdiction in a case where the objection is waived by the failure of appellee to set it up in his motion within the time prescribed by the rules of court. Rules of Supreme Court, 8 and 9.</p> <p>2. Case discussed.— Daniels v. Larendon, 49 Tex., 219, discussed.</p> <p>3. Case distinguished. — This case distinguished from Labadie v. Dean, 47 Tex., 90.</p>

<p>Appeal from Camp. Tried below before the Hon. B. F. Estes.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>1. Evidence—Witness.—A defendant who, in a suit for property brought by an administrator, disclaims all interest, is a competent witness to acts and conversations of the decedent affecting the title.</p> <p>2. Fraud — Trusts.—Á child whose father purchases land and pays for the same with money which he owes the child, taking title in the name of a third party with his knowledge and consent, may recover the property, though the father may at the date of the purchase have been in failing circumstances, and intended by the purchase to prefer the child to other creditors.</p> <p>3. Same.—If such a purchase, with the title thus conveyed, was intended by the father as an advancement, the child would be entitled to recover the property only if the advancement was not to the prejudice of existing creditors.</p> <p>4. Fraud.— If a father in failing circumstances, with a view of secreting his property, shall invest in land, taking title,thereto in the name of a third party with his consent, and on the trust that he will hold one-half interest in the same as an advancement for the child of the purchaser, the title having vested in the’third party, a court will not divest it to enforce the trust at the suit of the child, though the child did not participate in the fraud and had no knowledge thereof. ’</p> <p>5. Resulting trusts.—No resulting trust can spring from an act contrary to .public policy or a statute.</p>

<p>Appeal from Freestone county.</p>

<p>Appeal from Grimes.</p>

Tried below before the Hon. Wm. H. Stewart. For a history of the former case to which reference is made in the opinion, see 52 Tex., 427.

Tried below before the Hon. D. D. Claiborne. Mrs. Cinda Brown, the wife of appellant, in August, 1878, made her last will and testament, bequeathing her property to the heirs of her brother, A. W. Pridgen. Mrs. Brown died a few days after the will was executed, and Pridgen made application to the district court of DeWitt county to have the will probated, when the appellant contested the same upon the following grounds: First.

<p>1. Venue.— Though under the statute (R. S., art. 1198, subdiv. 13) a suit may be brought for the partition of land in any county in which one of the defendants may reside, yet if in the petition it be shown that the defendants assert an adverse title, and there be a prayer for the recovery of title, the suit must be brought in the county where the land is situated.</p>

Error from Houston. Tried below before the Hon. J. R. Kennard. Suit by defendant in error against plaintiff in error, February 11, 1881, for the specific performance of the following contract, or in. the alternative for judgment for the amount specified therein ($300), and interest, with foreclosure of vendor’s lien: “April 14, 1880.

Tried below before the Hon. John R. Kennard. Suit for damages for breach of contract. The plaintiff, A. B. Strange, contracted with W. P. Turner for a certain tract of land for one year, the terms being, one-third of the corn and one-fourth of the cotton to be paid to Turner as rent for the year.

Tried below before the Hon. John R Kennard. Mrs. M. H. Dill, the surviving wife of J. H. Dill, deceased, brought this suit in the district court of Trinity county against Rachael Forsythe, surviving wife of W. E. Forsythe, deceased, and against the surviving children and heirs of W. E. Forsythe; also against P. W. Thorn, upon two promissory notes executed and delivered by W. E. Forsythe in his life-time to J. H. Dill on the .14th day of December, 1878.

On the 10th day of October, 1815, W. J. Jones brought this suit in the district court of Galveston county against B. F. George, to recover on the breach of warranty.

<p>1. Fact case — Presumption.— See statement of case and opinion for facts from which a conveyance of land may be presumed, consisting in acts and declarations of him who invokes the presumption, coupled with the conduct of him in whom the apparent title vested, though not of a character nor continued for a period that would confer title under the ten years’ statute of limitations.</p> <p>2. Declarations.—The declarations of a deceased party exercising acts of ownership of land, concerning his title, when made in connection with such acts, to the effect that he had purchased the land, cannot be admitted in evidence to sustain the title of one . claiming under him.</p> <p>3. Estoppel.—An estoppel to be available as a defense need not be specially pleaded, but no verbal declarations can operate as an estoppel which did not influence the action of another.</p>

Tried below before the Hon. Livingstone Lindsay. Suit by John Donahoe against the appellant to recover $10,000 damages. The petition charged in substance as follows: That on the 1st day of April, 1875, Donahoe, at Randon Station in Fort Bend county, on the railway line owned by appellant, went aboard of the west-bound passenger train, with the view of going to Ruling, another station on the line.

Tried below before the Hon. John R Kennard.. In addition to the facts stated in the opinion, the following evidence was given as bearing on the question of fraud: E. Currie, Sr., testified that he conveyed his interest in the tract in question to his son, November 1, 1876; the consideration being that the son should pay a debt due from the father; that the son was in possession at the time of the conveyance from Currie, Sr., to Currie, Jr., and so remained up to the time…

<p>1. Suit against tenant — Effect of as to landlord — Limitation— Part owners.— In an action of trespass to try title the defendant set up a previous judgment obtained against the tenant of the present plaintiff, and claimed that the same was conclusive against Mm. Held,</p> <p>(1) That notwithstanding articles 4789 and 4790 of the Revised Statutes, directing that where the premises are occupied the person in possession shall be the defendant, and, where that person is a tenant, authorizing the landland to make himself a party or be made a party on motion of the tenant, yet where the landlord is.</p> <p>not a party, and has no notice of the pendency of the suit, he is not bound.</p> <p>(3) The petition and judgment in such previous suit against a tenant are inadmissible as evidence to defend the action by the landlord; to treat them as conclusive against the plaintiff in such action is error sufficient for reversal. ®</p> <p>(3) That such previous suit stopped the running of the statute of limitations in favor of the landlord as to an undivided half interest sued for; but this did not apply to the remainder, to which no claim was there made.</p> <p>(4) Where the landlord’s possession has been sufficient to give him title by limitation as against any other part owner than the plaintiff in the previous suit, it is error to award to that plaintiff exclusive possession of the entire premises.</p> <p>(5) It seems that though such possession be insufficient to give title by limitation, it may be sufficient to protect the party from being ejected as a mere trespasser by a part owner suing only in his own behalf.</p>

Tried below before the Hon. W. D. Wood. R. N. Read et al. brought this suit in Houston county on August 26, 1880, against appellees Mrs. Walker and Mrs. Allen, for an undivided half interest in the Aughenbaugh league of land situated in that county, and to revise, limit or set aside in part a judgment for the league recovered in November, 1878, by appellees Walker and wife alone, against appellants (except Mrs. Thompson and Mrs. J effus, who were not parties), each appellant…

Tried below before the Hon. W. D. Wood. Suit brought by Jeffus and wife against appellees to limit and set aside in part a judgment recovered by appellees Walker and wife against appellant Caleb Jeffus and others in November, 1878, for the whole of the Aughenbaugh league. The allegations in the petition were substantially the same as in the petition of the appellants in the preceding case, the present appellants being also appellants in that cause.

<p>Appeal from Houston. Tried below before the Hon. J. R. Kennard.</p>

Error from Montgomery. Tried below before the Hon. James Masterson. •Suit in trespass to try title, brought by P. J. Willis against W. H. Bailey, for a tract, of land in Montgomery county. The petition was filed February 27, 1873. Pending the suit P. J. Willis died, and his heirs were made parties plaintiff. Both parties traced their titles to one James McOown, and it was admitted that his title was good.

Tried below before the Hon. D. M. Prendergast. Suit in trespass to try title by James Robinson against Virginia E. Black, to recover a tract of land in Freestone county. The petition was filed March 1, 1876. . April 7, 1876, defendant answered by a general .demurrer and a plea of “ not guilty.” October 17, 1876, C. L. Watson appeared and made.himself a party defendant, alleging that Virginia Black was his tenant, and adopting her answer.

Tried below before the Hon. William H. Stewart. The following was the agreed statement of the points under rule 59: Seeligson, who was plaintiff in the court below at the time of the institution of this suit and at the dates hereinafter named, was a cotton factor and commission merchant, and as such doing business in the city and county of Galveston.

Tried below before the Hon. W. D. Wood. Suit in trespass to try title, brought by Emma Brown, joined by her husband, A. B. Brown, against John McConnell et al., plaintiffs claiming title through heirship of Emma Brown from Isaac Adair. Defendants resisted on ground of purchase from Mrs. A. L. Adair, widow and executrix of Isaac Adair, under their plea of not guilty.

<p>1. Underwriters’ contract with—Nature of goods—Usage — Evidence admissible—Payment of losses.— In a suit against an insurance company for the value of eighty barrels of honey insured by them, to be earned on a vessel from Tuspan, Mexico, to Galveston, Texas, and alleged to have been lost in a storm at sea, the defendants claimed that the honey was carried on deck, and for that reason denied liability therefor. Held,</p> <p>(1) That a policy on property in general terms, “laden or to be laden on board,” does not cover property on deck: but if the goods are named, and are such as are usually carried on deck, in the particular trade, for satisfactory reasons, this will be presumed to have been known to persons doing an insurance business in such particular trade, and to have been contemplated by the parties to the insurance contract.</p> <p>(3) Where, from the nature of the articles, they can properly be carried only on deck, it is a condition that they shall be so carried.</p> <p>(3) The statements of experienced persons as to how the business in question had been carried on for a series of years, were admissible in evidence as tending to show the usage in the trade.</p> <p>(4) In order to establish the liability of the underwriters, it was not necessary to show a custom among them to pay losses on goods carried on deck.</p>

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

Tried below before the Hon. Henry C. Pedigo. Williams & Guyon brought this suit against G. W. Davis, January 20, 1875, to recover two tracts of land situated in San Jacinto county. Williams & Guyon claimed title to this land through an order of the probate court of Polk county, made January 28, 1867,' in the estate of I. T. & J. J. Patrick, then being administered in said court.

Tried below before the Hon. L. Lindsay. This was a suit brought by M. B. Dunlavy and wife against the G. H. & S. A. R’y Co. The facts of the case were substantially these: Mr. Dunlavy, his wife, infant and nurse took the train at Richmond to go to Walker’s Station, seven miles off, placing in the charge of the baggage master the lady’s trunk, containing her wardrobe, a gold watch worth $200, a music box worth $60, and other articles; the trunk itself, a “ hasp lock,” being…

Tried below before the Hon. H. Clay Pleasants. S. W. Dial brought suit against Solomon Parks to recover the value of certain timber taken from the lands of appellee, under a contract that Parks would pay him the reasonable value of such timber.

Tried below before the Hon. H. C. Pedigo. Appellants sued one Brick, April 22, 1875, on a note for $1,180, and to foreclose a mortgage on the land described in the petition or alternately for the land, joining appellee as defendant, representing that she was in possession and claiming a portion of the land. In 1861 Eliza Rudder sold the land to Brick, conveying it to him by a deed absolute upon its face, and therein acknowledging the payment of the purchase money.

Error from Galveston. Tried below before the Hon. Wm. H. Stewart.

<p>Appeal from Fayette. Tried below before the Hon. N. G. Shelley, special judge.</p>

Error from Galveston. Tried below before the Hon. Wm. H. Stewart. John H. Sandford brought suit on the 21st of May, 1814, against Win. Pool, to recover $6,000, alleged to be due him as the contract price agreed to be paid him for supplying all material and doing all work in the construction and completion of a dwelling house for said Pool on lots 5, 6 and 1, in block 264, in Galveston, and also for “extra” work thereon the sum of $1,951.50.

Tried below before the Hon. James Masterson. Suit filed March 8, 1881, by Augustus Farmer against the Howard Oil Company for injuries sustained by Farmer on the 14th day of January, 1881, while in the employ of defendant. Appellant’s counsel stated the case substantially correct as follows: Farmer was employed as a “stripper” in appellant’s oil factory, and while rubbing off the “heater” by order of the superintendent, had two of his fingers cut off.

<p>1. Promissory note —Indorser—Parol evidence.— A promissory note was executed and indorsed as follows:</p> <p>“$1,418.24. Galveston, June 1, 1873.</p> <p>“ Six months after date I promise to pay to the order of myself fourteen hundred and eighteen 24-100 dollars, value received, payable at --.</p> <p>(Signed) “ J. Blumenkron.</p> <p>“ Indorsed:</p> <p>“ J. Blumenkron,</p> <p>“Herman Hirsch,</p> <p>“S. Heidenheimer. ”</p> <p>The note was made for a debt from Blumenkron to appellant, a firm of which S. Heidenheimer was a member, and indorsed by the maker, and Hirsch, and S. Heidenheimer to secure an extension. Held,</p> <p>(1) On the face of the note as indorsed and delivered, Blumenkron was maker, and Hirsch and S. Heidenheimer were indorsers.</p> <p>(2) The fact that Hirsch became a party to the note in its inception and for the accommodation of Blumenkron did not make him liable otherwise than as indorser; nor.is parol evidence admissible to show the intention with which he signed.</p> <p>(3) One who by regular indorsement becomes a party to commercial paper for accommodation, though done when the paper is made and before delivery, occupies a different position from strangers to the paper who write their names thereon.</p> <p>(4) Parol evidence is inadmissible to show that the indorser released the owner of the note from obligation to use due diligence to enforce its collection, and a parol contemporaneous waiver of the right to notice cannot, under the statutes of Texas, be shown.</p> <p>2. Exemption of household furniture from forced sale.— The exemption of household and kitchen furniture from forced sale does not include any other than furniture for the family, and will not include beyond this furniture used in hotels and restaurants.</p>

<p>1. Homestead—Abandonment.— A citizen of Texas, owning a homestead in this state, left the state in 1888 with his wife, declaring his dissatisfaction with the government, expressing his intention not to return, and removed to Tuspan, Mexico. He returned to this state in 1873 and died in 1878, but never occupied again his former homestead. In a contest between a purchaser of the homestead at execution sale in 1871, and the widow and children of the deceased husband claiming homestead rights, held,</p> <p>(1) The homestead was abandoned and homestead rights lost.</p> <p>(2) The power of the husband to bind his children by abandonment of the homestead is clear, and the rights of the wife were lost by her voluntarily leaving the homestead and accompanying the husband when he abandoned it.</p>

Tried below before the Hon. James Masterson. In January, 1867, Upton et al. bought the land in controversy, and occupied the same as a home until the beginning of the year 1868. The deed to the same was in the usual form, and .in the name of the wife (but did not recite that it was bought with her separate means, or for her separate, use or estate).

<p>Appeal from Johnson. Tried below before the Hon. Jo. Abbott.</p> <p>The opinion states the case.</p>

<p>Appeal from Austin. Tried below before the Hon. L. W. Moore.</p>

Error from Jasper. Tried below before the Hon. Henry C. Pedigo. This was a suit brought by the plaintiffs in error against the defendant in error i;or a debt due by note for $1,200. The defense set up was discharge in bankruptcy.

Tried below before the Hon. J. R. Burnett. D. D. Davis and Mary J. Davis were husband and wife. Mary J. Davis died in April, 1866, leaving surviving her her husband and minor children. The husband died November 4, 1868, leaving a second wife, Mary E. Davis.

<p>Appeal from Austin. Tried below before the Hon. Livingston Lindsay.</p> <p>This was an action of trespass to try title, commenced June 26, 1871. The plaintiffs were John G. Bell, guardian' of the minors Daniel and Theodore Gross, and William S. Wright, guardian of the minor Mary Cross. These minors were the children of Lucy and Horace Cross, deceased. Lucy died in September, 1867, and Horace in December, 1869.</p> <p>The land in dispute consisted of several lots in the town of Hempstead, and were the homestead of Lucy and Horace Cross.</p> <p>September 1, 1869, the father conveyed this property to appellee by deed with general warranty. He acquired no other homestead. This property was the community property of the husband and wife, and this suit was brought to recover the half interest inherited by the minors from their mother.</p> <p>March 29, 1872, a trial was had and judgment' was rendered for defendant, which on appeal was reversed and the cause remanded. A report of the case will be found in 37 Tex., 572.</p> <p>In the progress of the cause the minor Mary intermarried with A. J. Fagan, who made himself a party plaintiff. It appears from the record that appellee knew of the condition of the property when he bought; that the price paid for it was $600; that it was worth $1,000 or $1,200 — though one witness testified that when it was sold times were hard, money very scarce; that it was doubtful whether the place would have sold for more than appellee paid for it, and that the rental value of the property was from $10 to $15 per month. There was no proof of community debts; but it appears that in the year 1869 Horace Cross sold a stock of cattle for $500 or $600, and that the money was paid, part of it at the time of the sale, part afterwards. Among other defenses set up by appellee was this: that after his purchase of the land, he had at the request of Horace Cross paid certain tuition bills for the benefit of the minor Mary, and some accounts for clothing furnished, these amounting to $60 or $70; that he had at the request of Horace Cross paid two installments of the premium upon a life policy, which Cross had taken out upon his life for the benefit of the minors Daniel and Theodore; that the guardian of these minors had received the money ($2,500) upon that policy after the death of their father; and that thus having been amply provided for by their father, they were estopped from claiming anything in this suit. Appellants objected to the proof of these facts when offered, but the objection was overruled and appellants excepted. The trial was had March 10, 1874. Verdict and judgment for defendant.</p>

<p>Appeal from Galveston. Tried below before the Hon. Wm. H. Stewart.</p> <p>Jemison recovered a judgment against the firm of Dobson & Clark for $642.40, to be made out of the firm property and the individual property of Dobson. On that judgment he sued out a writ of garnishment against appellee Scarborough, .who resided in Trinity county, on the 12th day of February, 1875. A commission was issued to the clerk of the district court of Trinity county, requiring him to cause Scarborough to go before him and answer under oath “ what he is indebted to the said firm of Dobson & Clark, and Thomas Dobson individually; or what effects of the said Dobson & Clark and of said Thomas Dobson he has in his possession, and had on the 22d day of February, 1875 (the time when the writ of garnishment was served); and what credits and effects there are of said Dobson & Clark and of said Thomas Dobson in the hands of any other person, and what person, to the best of his knowledge and belief.” The garnishee appeared before the officers September 18, 1875, and answered as follows: “I do not owe Thomas Dobson anything; and I do not owe the firm of Dobson & Clark anything; and I have no effects of the said Dobson & Clark in my possession, or of Thomas Dobson individually, and do not know who has.”</p> <p>Jemison made a motion against Scarborough for judgment, on the ground that the answer was evasive, insufficient and not responsive to the commission. The court overruled the motion and rendered judgment discharging the garnishee on his answer. The appellant assigned as error the overruling of his motion for judgment.</p>

Tried below before the Hon. Everett Lewis. Suit in trespass to try title and for damages for one hundred and ninety acres of land, part of the C. Dyer league, situated in Colorado county, brought by James E. Carlton against Mary L. Montgomery, Jane S. Montgomery, Morgian Montgomery, Ella Montgomery, B. F. S. Montgomery, Jessie Montgomery, and William Montgomery, all minors except Mary L. Montgomery, who was the guardian of the persons and estates of the other defendants.

Tried below before the Hon. James Masterson. Suit brought March 16, 1874. The following from the brief of appellee is adopted as a statement of the case: This is an action brought by the appellee for the use of J. M. Tryon against the appellant, upon a fire insurance policy issued by appellant to appellee for $800, upon a stock of goods kept by appellee in his store in the city of Houston, and which were destroyed by fire during the existence of the policy.

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

<p>1. Attorney.—The fact that a district attorney for the district composed of the counties of Galveston and Harris was recognized by the district court as having a right to prosecute a suit for Galveston county, cannot estop the county, in a subsequent suit brought by him to recover commissions claimed in the former suit, from denying his authority to represent it, there being no such issue between the parties to the former suit.</p> <p>2. District attorney.—Before the adoption of the Revised Statutes, while county attorneys were required to perform certain duties which might be performed by district attorneys, there was no law expressly requiring district attorneys to perform the duties imposed upon county attorneys.</p> <p>3. Statute construed.—Under the act of August 21, 1876, and the laws in force prior thereto, it was not the duty of a district attorney to institute suit upon a defaulting county treasurer’s bond.</p> <p>4. District attorney.—A district attorney who prosecutes a' civil suit for a county when not required so to do by law can recover no compensation for his services in the absence of a contract with the county.</p>

<p>1. Practice—Appeal bond.— A motion to dismiss a cause not filed within the time prescribed by the rules of court (Rules 8 and 9) will not be regarded except for defects which would affect the jurisdiction of the court.</p> <p>2. Practice — Supersedeas bond.—When the judgment is for the recovery of land, an omission in an appeal bond to describe the general features of that portion of the judgment which declared the recovery, however fatal to the appeal on motion filed in time to make defects of form available, cannot affect the sufficiency of the bond to give jurisdiction.</p> <p>3. Appeal bond.— An appeal bond to be unobjectionable as to form should follow clearly the terms of the statute, and should not mingle the provisions of a cost bond and a supersedeas bond, so as to make it doubtful to which class it belongs.</p> <p>4. Appeal bond.— It is not necessary in a bond intended as a supersedeas bond to insert a provision for payment of costs that have accrued, and which may accrue in the appellate court.</p> <p>5. Appeal bond.—A bond designed as a supersedeas bond, but insufficient as such, if sufficient as a cost bond will support the jurisdiction of the court.</p> <p>6. Jurisdiction.—The defects in an appeal bond which will defeat the jurisdiction of the court must be substantial and vital.</p>

Tried below before the Hon. J. C. Russell. Suit by William H. Russell against the city of Laredo for the alleged breach, by the defendant, of its contract with him to obtain from the state a patent for certain lands possessed by said city, and known as the ejidos of said city.

<p>1. Agreement between purchasers —Secret trust — Constructive notice.— D. conveyed his headlight league to R., who, however, claimed one-half, holding the other half in trust for D. H. having verbally agreed with D. to buy his half of the league, applied to R. and obtained from him an agreement to divide the land as soon as practicable, the agreement reciting, “ Now we, the parties above named, having been purchasers of said land from said D.” H., who had never paid D. for the one-half league, sold it by title bond to B., and the latter conveyed it to T. B., who procured an order from the probate court directing the executors of R. to convey to him all the interest of R.’s estate in the one-half league. This conveyance was made, and T. B. subsequently conveyed to plaintiff. Held,</p> <p>(1) That the agreement between R. and H. passed no title.</p> <p>(3) That the agreement shows on its face that H. only claimed through a purchase by R. and H. of D., and shows, therefore, that he was not a bona fide purchaser for value from R.</p> <p>(8) That the decree, and the conveyance in obedience to it, being based on this agreement, the plaintiff’s vendor, in whose chain of title these constituted a necessary link, was charged with notice that H. had only such right as was derived from D., and had none by purchase from R.</p> <p>(4) That the heir of D. not having been á party to the proceeding in the probate court, was not affected thereby.</p> <p>(5) That although the decree and conveyance vested the legal title in T. B., he held it in trust for D., unless he had acquired the equitable interest of D. or his heir.</p> <p>(6) That a charge which assumed that there was a secret trust in regard to the land between H. R. and D. was erroneous. A sale by H. to D. was necessary to the -existence of such a trust, and the fact of such a sale was an issue for the jury.</p> <p>(7) At the time of the conveyance to plaintiff there was on record a conveyance from the heir of D. to one-half the league, under which defendants claimed. This was constructive notice to plaintiff.</p>

<p>1. Jury commissioners—Objections to.—The fact that the father of a jury commissioner is or has been a party to the suit, or that the commissioner is a merchant doing business in the vicinity of the land in litigation, and several of the defendants trade with him, are neither of them objections which disqualify a commissioner or good ground for quashing the panel of petit jurors.</p> <p>2. Objections to jurors—Interest — Relationship. — That a juror lives upon the land involved so as to be interested in the particular suit, or is related within the third degree to any of the parties, is a sufficient objection against him individually, but does not require the quashing of the panel.</p> <p>3. Claim by limitation — Sufficient description.— Where part of the land sued for is claimed by limitation, and the plea describes that part so that it can be easily identified, the description is sufficient.</p> <p>4. Authority to sell presumed — Charge of the court.— Where community property was sold by the husband after the death of the wife, and there was a great lapse of time, together with long possession, under a bond for title, by defendants, before suit was instituted by the heirs of the wife to recover the land, held,</p> <p>(1) That the jury was authorized to presume that there were community debts or such other circumstances as authorized the husband to make the sale.</p> <p>(2) That the charge of the court went too far in telling the jury that after the great lapse of time it was a presumption of law that the husband had authority to sell; but where the assignment of errors is too general to require the court to revise the charge, and especially where, under the facts, any other verdict would have been against the evidence, the error becomes immaterial.</p> <p>(3) That where there was only negative evidence against the above presumption, the witnesses confessing ignorance of the state of affairs, a charge to the jury that if it had been proven that there were no community debts the husband was not authorized to sell his deceased wife’s interest, was properly refused by the court.</p>

Walker. Tried below before the Hon. John R. Kennard. Leon Blum, Sylvain Blum and Hyman Blum, partners, doing business under the firm name of Leon & H. Blum, sued A. E. Davis and W. J. Davis, partners, doing business under the firm name of A. E. & W. J. Davis, to recover a debt of some $1,600 claimed as due to Leon & H. Blum by A. E. & W. J. Davis. Appellants gave bond and made affidavit for attachment, which was issued and levied on appellees’ property.

Tried below before the Hon. Everett Lewis. ' Suit for damages for cutting and hauling timber from the land of appellants by appellee, and to remove cloud from title to six hundred and forty acres of the land described in the plaintiffs’ petition, owned by them. The petition was filed February 8, 1881, and was an appearance case at the March term, 1881.

<p>1. Estate of bankrupt — Concurrent jurisdiction of bankrupt and probate COURTS.— The widow and heirs of a testator sued to recover land sold under a decree of the United States district court in foreclosure of a mortgage held by the assignee of an estate in bankruptcy. The widow and two others had been appointed executors by the will, free from the control of the probate court. The suit to foreclose was brought by the assignee against the executrix, but the petition in the present case alleges that at the time the suit was brought and the sale made the estate was being administered by her under the rules of the probate court. In that suit the executrix appeared and answered, claiming only the homestead exemption. Held,</p> <p>(1) That the United States district courts, as courts of bankruptcy, and the state courts have concurrent jurisdiction of suits for the recovery of the property of a bankrupt estate, or of a debt due the estate, but the former have power to render their jurisdiction practically exclusive.</p> <p>(2) That had the defense been made that proceedings to collect the claim against the estate of deceased and enforce the hen were already pending in the probate court, the federal court would not have been divested of its jurisdiction, but the assignee merely required to elect between the two tribunals.</p> <p>(3) Where the bankrupt court proceeds to enforce a claim on the estate of a decedent, the preferences and exemptions given by the state law are to be respected.</p> <p>(4) That the decree rendered by the United States district court, in the exercise of its jurisdiction, bound the estate of deceased, and therefore those claiming the land as heirs or distributees; and this whether the estate was represented by an independent executrix, or one under the supervision of the probate court.</p>

Tried below before ,the Hon. James Masterson. Held: and then averred that plaintiff’s testator was a director in defendant’s company at the time he took the assignment from Bartlett; and that he fraudulently procured said officers to issue the certificate through which the plaintiff claimed, and the same was issued in mistake; wherefore plaintiff was not entitled to forty shares of…

<p>Appeal from. Freestone. Tried below before the Hon. L. D. Bradley.</p>

Tried below before the Hon. Wm. H. Burkhart. The statement of the case by appellant’s brief, being admitted correct by appellees’ counsel, is adopted as follows: Jacob Frank Fowler, deceased, was an employee in the service of the appellant as yardmaster at Hempstead, Waller county, Texas, when, on the 3d day of December, A. D. 1875, he was ordered by his superior officer, the assistant superintendent, to “run to wreck on Union Hill ” to get the passengers from a train which…

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>Suit by appellant Crews against Taylor and the sureties on his official bond as clerk of the district court of Harris county, on March 20, 1873, to recover $1,249.46 and interest as damages resulting to Crews on account of the negligence of Taylor as such clerk. The case as presented by the record was in substance this: On the 16th day of May, 1870, Richardson purchased of Buckholtz the land described in the petition for $1,500, — paid $500 cash and gave his note for $1,000. The deed recited that “in consideration of the sum of fifteen hundred gold dollars to me paid and secured by Joseph A. Richardson.” A mortgage was executed at the same time by Richardson to Buckholtz, on the land, to secure the note. The deed and mortgage were both acknowledged and deposited in Taylor’s office on said 16th day of May, 1870, and the recording fees were then paid, and the deed was recorded the same day. The clerk did not keep a file book, but the mortgage was filed the same day, but was not recorded until after the 20th of July, 1870. On the last named date Richardson applied to Crews for a loan of $6,000, proposing to secure the same by a deed of trust on the land. Crews had his attorney examine the records of Harris county; the deed from Buckholtz to Richardson was seen and examined by the attorney, but the mortgage was not seen, and no inquiry was made by the attorney for any file book, or for instruments filed but not recorded. Upon the advice of the attorney, the loan was made and the deed of trust was taken. Subsequently Buckholtz brought suit on the note and mortgage and obtained judgment for the amount and a decree foreclosing his lien. Crews to protect himself was forced to pay oft the amount of that judgment.</p> <p>The defense was that the record of the deed gave full notice of Buckholtz’s claim, contributory negligence upon the part of Crews, and that the property purchased by appellant under his deed of trust was of greater value than both notes, etc.</p> <p>The case was tried April 23, 1874, and resulted in a verdict and judgment in favor of the defendant, from which this, appeal was taken.</p>

<p>1. Heirs of intestate can sue and be sued, When.—The heirs of an intestate, in order to be entitled to sue for the claim of their ancestor, must prove some fact bringing them within one of the exceptions to the rule; as lapse of more than four years since intestate’s death without administration, or that administration has been closed and that there are no debts against the estate. Similar proofs must be made concerning the estate against the heirs of which it is proposed to bring suit on the ground of assets received.</p> <p>2. Probate law.— Judgments contrary to, erroneous.—In such a suit against heirs, the law contemplates a judgment in personam and not in rem, and the verdict and judgment in the present case for the amount of the debt, and subjecting the land thereto, followed by the decree that the defendants are not responsible for the amount of the judgment except to the extent of- property received by them from the estate of them ancestor,' are erroneous, being contrary to the provision of the probate law, that, if the creditor of the intestate shall establish his debt, he shall recover judgment against the heir, or other party in possession of the property, to the amount of his debt; provided, that such judgment shall never exceed in amount the value of the property so held by the heir or other party.</p> <p>3. Specific lien not given.—The law in such a suit confers no specific lien on the property of the debtor.</p> <p>4. Unknown heirs — Citation by publication.—Unknown heirs, when so sued, may be cited by publication. See McCampbell v. Henderson, 50 Tex., 611.</p>

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

<p>1. Certificate of acknowledgment of married woman.—The certificate of acknowledgment of a deed by a married woman is defective if it fails to show that the instrument was explained to her by the officer, and that she then acknowledged it to be her act, and declared that she wished not to retract it.</p>

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

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>It does not appear when this suit was instituted. Sutor, the plaintiff below, filed his first amended petition July 5, 1878, against plaintiff in error (defendant below), suit being trespass to try title for one hundred and sixty-three by one hundred and four feet of land situated in the city of Houston, Harris county, charging that the entry was made about January 1, 1875. Also that the defendant had since, without authority or consent, unlawfully built and constructed their railroad tracks thereon, being fixtures and part of the realty, and during all the time has run its cars, engines and trains on said tracks without his authority or consent. That the use of said land and the rents thereof during said time was and is reasonably worth the sum of $50 per month. That the defendant dug up the soil and made embankments and ridges upon the land, permanently damaging the same §500. That by gross negligence in making the ditches on each side of the track, the said company, by reason of the overflow of water occasioned, has seriously injured his adjoining lands upon which he lives. That in 1876 and 1877 his potato crop was thus overflowed and lost. That each of said crops was of the value of §100. That his dwelling-house was injured thereby in the sum óf $100, and one grape vine of the value of $25, besides other elements of damage.</p> <p>The defendant answered- by general and special exception, general denial, five and ten years’ limitation, and limitation of two years as to the damage. Also, in the event the court should decide the question of title to the land against defendant, it then asked a condemnation of the land for right of way for its road. -</p> <p>The case was tried November 15, 1878, when the jury returned the -following verdict:</p> <p>“We, the jury, find for plaintiff title to the land.</p> <p>Value of land................................................$135 00</p> <p>Interest on same.............................................. 30 65</p> <p>Damage to property.......................................... 300 00</p> <p>Damage to crop, ’76 and ’77.........................°......... 300 00</p> <p>Damage to grapes and peach trees............................. 55 00</p> <p>Damage on house............................................ 100 00</p> <p>$810 65</p> <p>Find right of way for defendant.”</p> <p>Judgment was rendered accordingly, and the case came up on writ of error.</p> <p>The errors assigned were numerous. The first was that the verdict for the plaintiff for the land was against the evidence, as the evidence showed a dedication of the land to the use of the railroad for its right of way as a public highway.</p>

Tried below before the Hon. James Masterson. On the 10th June, 1875, John Collins deposited with the Odd Fellows Building and Exchange Company of Texas (appellee) $500, for which he took their receipt and obligation to pay, in these words, to wit: “ Houston, June 10, 1875. “Received from Mary Collins five hundred currency dollars, payable on demand, interest at six per cent, per annum.

Tried below before the Hon. James Masterson. The Buffalo Bayou, Brazos & Colorado Railway Company being indebted to George Butler, the husband of appellee, prior to the 11th of June, 1868, the said Butler recovered a judgment against said company on the 18th of June, 1868.

<p>1. Jurisdiction—Limitation.— The town of Victoria, owning certain lands outside of the town proper but within the corporate limits, caused it to be surveyed into farm lots separated by streets, and sold lots O and P, separated by a street, the deeds calling to run with the street. Subsequently by statute the limits of the corporation were reduced, leaving these lots outside, the statute providing that the streets should remain set apart for public use. The owner of lots O and P having united them in one enclosure, the county commissioners of Victoria 'county ordered the fence removed, and the plaintiff claiming the entire enclosure as his property, brought this suit to enjoin the enforcement of the order. Held,</p> <p>(1) That the suit involved the title to real estate, and that the district court had jurisdiction.</p> <p>(2) That the deeds from the town conveyed no title to the street, and that the plaintiff therefore acquired no title by adverse possession for five years.</p> <p>(3) That the title by the party in possession under the ten years’ limitation, because such possession only continued ten years when counted against the county as well as the city, and against the former, being a subdivision of the state, the statute no more runs than against the state itself.</p>

<p>1. Burden op proof—City assessment.— An ordinance of the city of Galveston required the city engineer, where certain preliminary notices had been given, to proceed to fill up lots designated by the health officer of the city, and to make a list of the lots so filled, entering opposite each lot its proper portion of the cost. Upon the approval of that list by the city council, the amount placed opposite to each lot was made an assessment against the same and a lien thereon. In a suit to enforce such assessment and lien, held, .</p> <p>(1) That the burden of showing clearly, from the proceedings of the city council, that the assessment sought to be enforced was embraced in a list reported by the engineer and approved by the council, devolved upon the city.</p> <p>(2) That the approval of the council must be based on the report or list of the engineer, and where the proceedings showed no list embracing the assessment dated and sworn to on August 17th, and the action of the council was predicated on the report of a committee to examine reports, of the engineer, which committee reported on August 3d, that it did not appear that the approval of the council embraced the work done on the lots in question.</p> <p>(3) That the proceedings of the council in this case failed to show a valid assessment.</p> <p>2. See this case for the views of Associate Justice Stayton as to the want of power in the city council, under the charter, to authorize the health officer to designate lots to be filled, so as to make the cost of filling a lien on the lots.</p>

Austin county. H. Miller was appointed assignee of the estate of Theodore Menke (since deceased), by deed of assignment for the benefit of creditors, made December 2, 1880, conveying to him all the property of Menke not exempt from forced sale under the constitution and laws of the state.

<p>1. Divorce—Evidence.—The provision of the Revised Statutes (art. 3347) that the husband or wife of a party to a suit . . . shall not be incompetent to testify except as to confidential communications between them, does not give parties to divorce suits the right to testify in their own behalf. To so change the common law, the language of the statute should be clear and explicit.</p> <p>3. Former statute.— For construction of a former statute, see 41 Tex., 111.</p>

<p>1. Petition on fire policy—Matters of defense.—A petition to recover for a loss by fire on a contract of insurance need not exhibit the policy nor set forth such of its terms as are in the nature of conditions subsequent, or in the nature of exceptions, or which are prohibitory of certain acts by the assured—all these being matters of defense.</p> <p>2. Same —Conditions sufficiently set forth in—Estoppel.— Although proofs of fire and loss are by the policy made conditions precedent, the petition is sufficient on this point if it alleges notice of the loss, and that on a day and at a place specified, proofs thereof were taken by A., the company’s agent, authorized thereto, and also authorized to settle and adjust the loss, who waived further proof, and promised to settle the loss. These facts would estop the company from setting up failure to furnish proofs.</p> <p>3. Evidence of payment of purchase money—Erroneous charge.— Where the evidence is, that, with the exception of an outstanding unsatisfied vendor’s lien, the purchase money on property offered for insurance had been paid, a charge based on the hypothesis that the jury are satisfied “ that the purchase money had not been paid and that there was an outstanding unsatisfied vendor's lien,” was properly refused.</p> <p>4, Warranty of fee simple ownership—Not broken, when.—It seems that a warranty that the land on which the insured building stands is owned 'in fee simple, is not broken if the party is in a condition to enforce specific performance of a bond to convey.</p> <p>5. Correct charge—No error to refuse, when.— It is not error to refuse a charge when one substantially the same is given. See opinion.</p>

<p>Appeal from Harris.</p>

Tried below before the Hon. Wm. H. Stewart. On .the 16th of August, 1880, the appellee, Carrie Lowell, as the widow of H. Lowell, deceased, for herself and her two minor children, aged respectively nine and twelve years, filed her application in the county court of Galveston county, in the matter of the estate of H. Lowell, deceased, for an allowance in lieu of homestead and other exempted articles, alleging that they did not exist in' kind in the estate; and also for one…

Tried below before the Hon. T. C. Barden. The city of Indianola brought this suit. June 28, 1872' against the Gulf, Western Texas & Pacific Railway to recover upon a bond for $50,000 and interest.

Tried below before the Hon. T. C. Barden. Suit brought January 23,1872, by J. B. Fryer against the Indianola Railroad Company to recover compensation as contractor for building the road, depot grounds, wharf connections, switches, etc, and repairing that part of the road already built.

<p>Appeal from Galveston. Tried below before the Hon. Wm. H. Stewart.</p> <p>This suit was brought by Tiernan to recover of appellants two lots on Galveston Island, containing each about ten acres of land, and known as lots 120 and 125, section No. 2, on Phelan’s map of the original survey of the island. The original petition was filed, September 21, 18W, and the amended original petition, which sets but Tiernan’s title, was filed July 15, 1818. That title was as follows:</p> <p>1st. Certificate for three hundred and twenty acres of land, issued to Francis Hughes, July 4, 1844.</p> <p>2d. Transfer from Hughes to John Lambert, July 4, 1844.</p> <p>3d. Sale and transfer of the certificate (and confirmation of sale) by the administrator of Lambert to Christopher Fox, April 3, 1856.</p> <p>4th. Transfer from Fox to Tiernan, August 27, 1870.</p> <p>5th. Patents for those two lots granted to the heirs of John Lambert, deceased, assignee of Francis Hughes, his heirs and assigns, December 1, 1876.</p> <p>It appeared that on the 27th day of August, 1870, Tiernan filed the certificate with the county surveyor of Galveston county, together with his application for the survey of certain lots, including lots 120 and 125 above mentioned; survey made, etc.</p> <p>October 5, 1877, answer filed by appellants, consisting of a general demurrer, general denial and a plea of “not guilty.”</p> <p>November 19,1878, the case was submitted to the court without a jury, and judgment rendered in favor of Tier-nan. November 21,1878, Franklin and Hurlbut filed their motion for a new trial, which was overruled on the 27th, and notice of appeal given in open court. Appeal bond filed December 18, 1878.</p> <p>Appellants sought to establish a superior title in one James H. Holman or those claiming under him, by reason of a sale of a number of lots, including those in controversy, by the republic of Texas to Holman, and his payment of the purchase money. To prove these facts they offered the deposition of the state comptroller, to which was attached as an exhibit a transcript from one of the record books of his office which had formerly belonged to the treasury department of the republic. This exhibit consisted of a sort of summary statement, ruled into' columns from top to bottom. The first column contained the number of lots sold; second, the number of the section; third, the purchasers’ names; fourth, amount of purchase; at the top of the fifth column was written, “Paid on lands patented.” In the column containing the names of purchasers was the name of James S. Holman as the purchaser of eight lots, including the lots 120 and 125 in controversy. The total amount of the purchase (to wit, $167) was placed directly opposite in the column headed “ Amount of purchase,” and also directly opposite in the column headed “Paid on lands patented.” All the entries in this latter column were written in pencil. Opposite the names of one of the purchasers was written in this same column of entries, “Paid on lands patented,” these words in pencil: “Paid. See other book; ” and the comptroller testified that this “other book ” is not to be found, nor did he know to what book reference was made. The deposition of the commissioner of the general land office was also introduced, showing that a number of the lots corresponding to these pencil entries had been patented, and giving copies of certificates from the treasury department upon which the patents were granted. The entries in pencil were objected to by appellee, and excluded by the court, on the ground that records in pencil were incompetent. Defendant Franklin testified that he was a part owner of the lots and his title was of record in Galveston county, and had been in possession by his tenant (the appellant Hurlbut) since 1875; that in 1868 or 1869 he had obtained information from the comptroller of Holman’s title; that a son-in-law of Holman had promised him an interest in the lots, and he had relied on the promise; and that before the location by appellee he had notified Ward, who was associated with appellee, of Holman’s title to the lots. The transcript was filed in the supreme court February 1, 1879) and the cause was submitted on briefs of both parties on the 17th of the same month. February 6, 1882, appellee filed a motion to dismiss the appeal on account of alleged defects in the appeal bond.</p>

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

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

<p>1. Statute of limitations—Injuries by railboads.—The limitation of one year, placed by statute upon actions for injuries to the person of another, as assault, battery, wounding or imprisonment, applies to actions for injuries from accidents on railroads also, the classes above named being examples merely, and not intended to restrict the operation of the statute.</p>

<p>1. Sureties on claim bond — Bona fide purchasers.— The defendant in the trial of the right of property made a trust deed to certain land to his sureties on the claim bond, empowering the sale of the land in case he should fail to pay off or otherwise satisfy the bond at its maturity. Held,</p> <p>(1) When judgment was rendered against him and he faded to satisfy the bond, the contingency which authorized the sale of the land had happened.</p> <p>(2) Parties claiming under a superior outstanding title on the ground of want of notice of the trust, must, in order to defeat the trust deed, show themselves to have been bona fide purchasers without notice and for valuable consideration paid before such notice.</p> <p>(3) Where the evidence was that part of the consideration was paid before notice of the trust, but the amount so paid was not shown, it is insufficient to establish the defense of bona fide purchasers without notice.</p>

<p>Appeal from Lamar. Tried below before the Hon. R. R. Gaines.</p>