Volume 58 — Texas Reports

Tried below before the Hon. O. C. Potter. W. E. Shinn et al. brought this suit against appellant’s tenants the 27th day of April, 1880, to recover the land described in the petition. They claimed the land as heirs and vendees of the heirs of Geo.

<p>Appeal from Falls. Tried below before the Hon. Jo Abbott.</p> <p>This suit was filed October 18, 1881, by Annie E. Spencer, joined by her husband, H. F. Spencer, against appelleés O. IT. Eosenthall & Co., and Cyrus Whitaker, sheriff of Falls county, to restrain the sale of a tract of land claimed as the separate property of the wife, Annie E. Spencer. .</p> <p>On the 19th day of August, 1881, appellees Eosenthall & Co. recovered a judgment against IT. F. Spencer for $1,113.81. Execution issued October 5, 1881, and was levied on the land. The wife, joined by her husband, alleged in her petition that the land was her separate property, purchased during the marriage, but with her separate means which she had owned before her marriage; that the deed was made to her, and the property was in the deed limited .to her sole use and benefit.</p> <p>In March, 1882, the court, upon exceptions, dissolved the injunction, and, plaintiffs not asking that the case should stand over for trial, dismissed the suit.</p> <p>Plaintiffs appealed, and assigned as error the ruling of the court sustaining the motion to dissolve the injunction.</p>

Tried below before the Hon. E. B. Turner. Suit brought September, 1872, by J. E. Ferguson and his co-plaintiffs, heirs of McGowan, for one hundred and ninety-eight acres of land, patented to the heirs on the 15th day of December, 1871, against J. T. and Mary J. Dulany and S. W. Turner, alleging trespass and ejectment of plaintiffs by Turner, abetted by his co-defendants.

<p>Appeal from Bobertson. Tried below before the Hon. W. E. Wood.</p> <p>The opinion will be understood in connection with a former report in 51 Tex., 65.</p>

<p>1. Disqualification of judge.—The constitutional provision disqualifying one from sitting as a judge in a “ case ” where he shall have been of counsel, does not limit his disqualification to a case pending at the time his services as counsel were invoked.</p> <p>2. Same.— If an attorney has been consulted as such, and has given advice as to a matter in dispute, which afterwards results in a suit, between the parties at variance, he cannot sit as a judge in that case, even though he charged no fee for his advice.</p> <p>3. Same — Practice.— An issue as to the disqualification of a judge to sit as such in a cause pending in his court, should be tried and determined by him, and the facts in evidence on the issue should be incorporated in the record on appeal.</p> <p>4. Same — Evidence.— The statements of the judge on the trial of such an issue should be made under oath, unless the same be waived by the parties litigant.</p> <p>5. Same — Bill of f.xceptions — On appeal from the judgment of the court, on an issue involving the disqualification of the judge, his statement appended to a bill of exceptions, relating to facts occurring before the institution of the suit, cannot be regarded.</p> <p>6. Same — Fact case.— See statement of case and opinion for facts held sufficient to reverse the judgment of a district judge who had held that he was not disqualified from trying a cause.</p>

Tried below before the Hon. B. T. Estes. Action for damages for loss of an arm by the negligence of the railroad company. Verdict and judgment for $8,000. This case should have appeared in 57th Texas, but the transcript was not accessible. More space than usual is allowed it on account of the dissenting opinion of Associate Justice Bonner. The evidence was as follows:

Error from Anderson. Tried below before the Hon. Peyton F. Edwards.

Tried below before the Hon. Joseph Bledsoe. On December 30,1876, appellees brought this action of trespass to try title against appellant and others, to recover a one-half interest in and to the land described in their petition, claiming as the coinmunity interest of their deceased mother; claiming that John Ohronister and.

Tried below before the Hon. Joseph Bledsoe. Charles J. Ball filed Ms petition in district court of Grayson county on the 22d day of October, 1879, alleging in substance that plaintiff and defendant entered into a- copartnership about the 1st day of September, 1878, for the purpose of erecting ice works in Sherman, Texas, and manufacturing and selling ice for profit, by which appellee was to furnish the money necessary to buy machinery and erect buildings, etc., and appellant…

Tried below before the Hon. Green J. Clark. Action of trespass to try title to three hundred and twenty acres of land lying in Delta county, and for rents, instituted by appellants on the 1st day of June, 1874.

Tried below before the Hon. I. B. McFarland. May 30, 1872, appellee brought this suit against L. P. Rucker as maker, on the following note: “ $312.20.

<p>1. Appeal bond — Defective description op judgment.— It is not a sufficient ground for dismissing an appeal, that the appeal bond fails to specify all of the defendants against whom judgment was rendered.</p> <p>2. Same — Misdescription op judgment.— Where the appeal bond erroneously describes the judgment as in favor of two named parties, when in fact it was rendered in favor of one only, it seems that the misdescription is a sufficient objection to the bond, a motion to dismiss being made in time.</p> <p>3. Final judgment.— A judgment dissolving a temporary injunction and for costs, hut not otherwise disposing of the subject matter of litigation, is not a final judgment, and will not support an appeal.</p> <p>4. Same — Parties.— It seems that a judgment is not final if it fails to dispose of the case as to one of the parties.</p>

<p>Appeal from Falls. Tried below before the Hon. X. B. Saunders.</p> <p>Appellants, as the children of Frank Barnes, deceased, instituted this suit against appellees March 1, 1876, to recover then}-, interest in the land described in the petition. In 1866 Frank Barnes and his wife, Elmira Barnes, together with the appellants, their two minor children, occupied the property in controversy as their homestead. It was the community property of Frank and Elmira Barnes. Frank Barnes conveyed the same to Oakes during that year; his wife, Elmira, did not join in the deed. July 20, 1867,- Oakes conveyed it to Mary Hazlewood. April 28, 1869, she conveyed to Scogin, he conveyed to Bledsoe in 1872, and Bledsoe conveyed to John E. Wood the same year. July, 1871, after the death of her. husband, Elmira Barnes brought suit against Scogin to recover the property and to have the above mentioned deeds canceled, etc., on the ground that her husband’s conveyance was without her consent. The district court decided against her, and an appeal was taken to the supreme court, where, on the 14th day of October, 1873, that court reversed the judgment of the district court, and rendered judgment in her favor for the land, and adjudged that the conveyance from Frank Barnes to Oakes and those claiming under him be canceled and held for naught. After the rendition of that judgment, Elmira Barnes, as appears from the record, conveyed the land to Scogin.</p> <p>The case was tried before the court without a jury, and the court rendered a judgment in favor of the appellants for an undivided half interest in the property in controversy. Upon motion of appellees that judgment was set aside, and the cause again tried without a jury, and judgment was rendered against appellants, that they take nothing, etc., and for costs, from which this appeal was taken.</p> <p>Several errors were assigned, among them that the judgment in favor of appellees and against appellants is contrary to the law and the evidence.</p>

Tried below before the Hon. J. P. Bichardson. On August 25, 1873, appellants, as creditors of the estate of N. O. Baymond, deceased, brought this suit against Lucinda Baymond' as principal, and Hancock and Walton as sureties on her bond, given as survivor in community. The bond was dated March 11, 1871. By the allegations in the petition it was claimed that the estate of N. 0.

Tried below before the Hon. L. D. Bradley. , Action of trespass to try title by Hardin, who filed an abstract of his title, under the heirs of Benoni Middleton, to whom the land was patented. On the trial plaintiff failed to prove a complete chain of title, but did establish title under W. B. Middleton, who conveyed the land September 2, 1867.

Error from Hunt. Tried below before the Hon. W. H. Andrews, special judge. The case was submitted to the court on an agreed statement of the facts, which agreed statement is sufficiently set out in the opinion.

Tried below before the Hon. Geo. H. Noonan. Suit by the state against Otelia Bergstroem as principal, and Louis Bergstroem, Paul Wagner and F. Hummel, sureties on her bond as surviving wife of Charles Bergstroem, deceased, administering, as such surviving wife, the community estate under the statute, which allows her to manage the community estate without submitting to the jurisdiction of the county court.

<p>1. Creditors — Intervention.— In a suit brought by a creditor to subject property alleged to have been fraudulently conveyed,to the claims of himself and the creditors of the estate, a compromise and agreement to dismiss the suit, made between the original plaintiff and defendant, cannot affect the fight of a creditor who has intervened by leave of the court to have his rights as a creditor adjudicated. An order dismissing the suit after such intervention and dismissing the petition of intervention is error, for the original action could only have been maintained when brought for the benefit of all the creditors.</p>

Error from Travis. Tried below before the Hon. E. B. Turner. The questions involved will appear from the statement of the case and the agreed facts, as the same are made and presented in the brief of the appellants’ counsel.

Error from McLennan. Tried below before the Hon. L. 0. Alexander. Suit in trespass to try title, filed July 4, 1879, by plaintiff in error against a number of defendants. Two of these, Victoria Guedry and her husband, F. E. Guedry, filed a disclaimer on the 24th of June, 1881, for the 10th day of May, 1880. And on the same day Fannie A. Nichols, joined by her husband, Charles H. Nichols, made themselves parties defendant, as landlords of the other defendants.

Tried below before the Hon. Green J. Clark. Action of trespass to try title, by Susan Spofford against F. A. Waters, H. J. Snow and J. M. Carter, the land in controversy being two thousand acres of a league and labor patented to Isaac Lee as assignee of Piere Tesia.

<p>1. New trial—Jurisdiction to grant during term.—The jurisdiction of the district court to set aside its own judgments continues during the term, and this is so although all the steps prescribed by the statute for the perfection of an appeal have been taken before the close of the term.</p> <p>2. Appeal—To what term returnable.—Where an appeal bond is filed and approved during the term, the case is not returnable to the supreme court sooner than it would have been had the bond been filed and approved on the last- day of the term.</p> <p>3. - Statutes construed.— K. S., arts. 1387-8, 1401-5, and 1410, construed.</p> <p>4. Case overruled.— Cahn v. State, Austin term, 1880, overruled.</p> <p>5. Case followed.—Kellogg & Co. v. White, Austin term. 1882, followed.</p>

Error from Caldwell.' Tried below before the Hon. L. W. Moore. Pierce brought this suit against Greenwood the 17th day of ■ August, 1875, on the following note: “ $177.50.

Error from Falls. Tried below before the Hon. D. M. Prendergast. Poole brought this suit January 5, 1875, against the railroad company, J. L. Scott and La Prelle & Bro. (The latter were dismissed on the ground of insolvency.) The case as made was in effect this: Poole, a merchant in Galveston, sold to La Prelle & Bro., merchants at Marlin, thirteen cases of boots and shoes, November 23, 1874, on a credit of ninety days.

<p>Appeal from. Grayson. Tried below before E. De Armand, Esq., special judge.</p> <p>Nancy J. Light and the appellee, D. W. Light, intermarried in Grayson county, Texas, about August 24,1854. They had five children, one of whom died in infancy, and the other four were still living. About January 12, 1867, the wife left the husband, and at the same time filed a suit against him in the Grayson district court for divorce, on the ground of cruel treatment, and for a division of the community property. Pending the suit alimony was allowed the wife. About August 4, 1869, the suit was dismissed by the wife. About August 22, 1878, the husband filed a suit against the wife in the Grayson district court for divorce, on the ground of abandonment without cause, the wife having remained away after she separated from him, January 12, 1867, and on September 19, 1878, the wife having interposed no defense, the husband obtained a decree of divorce. February 15, 1879, the wife filed this suit for the recovery and division of the community property of herself and husband; in December, 1879, the wife died, and the suit was revived in the name of the appellant, G. W. Newcome, as her executor.</p> <p>On September 12, 1881, the appellant filed an amended original petition, and on May 17, 1882, filed by agreement an amendment to his original amended petition, alleging in his pleading as it then stood, in substance, that the wife was forced to leave her husband January 12, 1867, by his cruel treatment, and that of his kinsmen, introduced by him into the family in 1857, and that at the date of separation the husband and wife owned certain community property, describing it, which the husband retained, excluding her from the benefits of it, and contributing nothing . thereafter to her support, she living with and being supported by her father, the appellant ; that after the separation, and prior to the wife’s death, the ■husband acquired certain property, which was also community property, and that the husband retained the custody and control of the children of the marriage against the wife’s consent, not allowing her to see and associate with them.</p> <p>On March 15, 1881, the appellee filed an amended original answer, alleging in substance that she abandoned him without cause about January 12, 1867, and remained away, though he invited her to return ; that she aided him in no way in the acquisition of property after she left him, and contributed nothing to the support of the children; that he alone supported the children, alleging the amount expended in that way; that he paid her alimony in the suit filed against him January 12, 1867, giving the amount; that at the date of the separation there were community debts which he paid, stating the amount; that the wife dismissed her first suit because she could not maintain it; alleged his suit against her and the decree granting the divorce, and prayed that appellant be charged with the support of the children, the alimony and the community debts paid according to the wife’s proportion of the same.</p> <p>On May 9, 1882, the appellant filed an amended first supplemental petition, and alleged in substance that the husband retained the custody of the children against the consent of the wife, and volum tarily supported them, though the wife was willing to support and. educate them to the best of her ability; that pending the suit by the wife against the husband for divorce, in which the alimony was paid, the husband had separate property and the wife had none; that the alimony was paid under the orders of the court; that the causes which influenced the wife to leave the husband continued to exist after she left, and she would have returned if they had been removed; that the decree of divorce in favor of the husband was null, because Joseph Bledsoe, the judge who rendered the decree, was disqualified by reason of having been of counsel in the cause; that the property in possession of the husband was the outgrowth and increase of the community property on hand at the date of the separation, and the two and four years’ statutes of limitation were pleaded against the demands of the husband, on account of alimony and community debts paid, and expenses of rearing and educating the children.</p> <p>On this state of the pleading the case came to trial May 20,1882, and resulted in a verdict and judgment for the appellant for $499.03.</p> <p>The court charged the jury in first subdivision of its charge: “That the decree granting the defendant a divorce, introduced in evidence, established the fact that Haney J. Light abandoned D. W. Light without sufficient cause. You will, therefore, in the consideration of the testimony, confine your inquiry to such acquisitions of property as were made by the husband and wife up to the date of such abandonment.” . . .</p> <p>In the suit by the wife against the husband, begun August 32, 1867, for divorce, on the ground of cruel treatment, and for a division of the community property, Joseph Bledsoe was of counsel for the husband, and himself prepared and placed among the papers in the case an answer for the husband, alleging as a defense to the action that the wife had abandoned the husband without cause; and Joseph Bledsoe ivas the judge who rendered the decree of divorce in favor of the husband, in the second suit, on the ground of abandonment without cause.</p>

Error from. Bastrop. Tried below before the Hon. J. P. Bichardson. Fitch and wife brought this suit against Boss July 14, 1874, to recover damages for slanderous words uttered and published by him of and concerning Mrs. Fitch. The words so charged to have been uttered and published imputed to Mrs. Fitch a want of chastity.

Tried below before the Hon. Spencer Ford. Suit in trespass to try title, brought by S. E. Moss against Henry Dotson, on the 13th of October, 1876, claiming one hundred and seventy acres of the Antonio Manchaca six-league grant. Defendant Dotson filed general denial, and afterwards, June 10, 1879, Henderson Pede was admitted to defend as landlord, who filed general denial and plea of ten years’ limitation.

<p>Appeal from Gregg. Tried below before the Hon. John 0. Robertson.</p>

<p>1. Assignment.— A valid assignment for the benefit of creditors, under the act of March "24, 1879, must convey all of the property, real and personal, of the debtor, except such as may be exempt from forced sale. If the assignment be by copartners, it must convey the firm property as well as the individual property of the members composing the firm.</p> <p>2. Assignment.— Ño title passes as against objecting creditors by a deed of assignment executed by copartners, which only purports to convey to the assignee the partnership property, and with the condition expressed that only such creditors shall receive benefit from the assignment as will join in a release of the debtors. A deed of assignment containing such a condition is only valid when it conveys all the property of the firm as well as that of the individuals composing it, except that which may be exempt under the constitution and laws from forced sale. If all the property, both of the firm and its individual members, be not conveyed, the deed presents no obstacle to an objecting creditor seeking to collect his debt by the usual process.</p>

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

<p>1. Notice. — One sending a telegraphic message is charged with notice of the printed conditions of the blank form on which his message is written.</p> <p>2. Telegram — Negligence. — A telegram was written and delivered to a telegraph company at Marshall, Texas, to be sent to New York, as follows:</p> <p>“S. M. Swenson, Son & Co., 80 Wall Street, New York:</p> <p>“ If not already, close out my Decembers. Buy four hundred May deliveries. Answer. John F. Womack.”</p> <p>The telegram was incorrectly transmitted by adding the letter “d ” to the word “close,” whereby the sender claimed to have suffered loss. No order was given by the sender to have the message repeated to guard against mistakes. In an action for damages against the company, held,</p> <p>(1) The mere fact that the message received at New York differed as stated from that sent from Marshall was not of itself evidence of such negligence as to entitle plaintiff to recover a larger amount than the sum paid for the message.</p> <p>(2) The sender who signed the message was bound to take notice of the printed terms thereon, which required it to be repeated in order to hold the company liable for any amount beyond the sum paid for the message. His ignorance of, or omission to read the printed form, cannot relieve him from being bound by his signature.</p> <p>(3) This case distinguished from those in which printed forms were used in bills of lading, and other instruments signed, not by the shipper or sender, but the party to be bound.</p> <p>3. Telegraph companies. — Telegraph companies can, by express contract or by proper rules and regulations contained in printed notices or otherwise, and which are brought to the knowledge of those with whom they-deal under such circumstances as to create an implied contract, limit their liability for delays and errors in transmitting and delivering messages, except when caused by the misconduct, fraud or want of due care on the part of the company, its servants or agents.</p>

Tried below before the Hon. Everett Lewis. The town, acting through the mayor and board of aldermen, whether by direct ordinance is not shown, erected near the center of the public square in the town of Seguin a small wooden building, one end of which was used and designed for a calaboose or prison, in which those offending against the town government were confined, and the other end was used and built for a market house.

Tried below before the Hon. John C. Eobertson. In this cause a motion was made to strike from the record what purported to be a statement of facts, for reasons which will be found stated in the opinion, which was delivered on the motion.

<p>1. Action—Multieabiousness—Parties.— In an action by heirs against the administrators on the estate of the ancestor and their sureties, and the sureties on a second bond executed under art. 1292, Pasch. Dig., it was alleged that a large sum of money, the amount not being known, was in the hands of the administrators when the second bond was executed; that large funds of the estate were invested in railroad stock by one administrator while the first bond was in force, in connection with sureties on the second bond, before the same was executed, and in their own name, which were held as collaterals to indemnify the second securities from loss on their suretyship; that all the papers of the estate were lost, and though the amounts wrongfully converted under each of the two bonds could not be stated, about $17,000 was converted under each bond. They prayed that the amounts of money wrongfully converted, for which each set of sureties were liaable, might be ascertained, and for judgment for the railroad stock against the second set of securities, for an account, discovery and general relief. Held,</p> <p>(1) There was no misjoinder of parties or of causes of action.</p> <p>(2) A joinder of both sets of securities as defendants in one action was not only proper for the protection of those interested in the estate, but also for the adjusting of equities existing among the sureties themselves.</p> <p>(3) The joinder was proper to avoid a multiplicity of suits.</p> <p>(4) The second set of securities were connected with the subject matter of the suit before their liability as sureties began, on account of their conversion of the assets of the estate; and also afterwards, in the wrongful appropriation of a trust fund, which not only the heirs may follow, but which the sureties on the first bond may follow for their own protection in adjusting liabilities between the two sets of sureties.</p> <p>(5) A bill of discovery, though unknown to our practice in Texas, eo nomine, is practically given under the statute, and a resort to its provisions, so as to make the answers of each defendant under oath evidence in this case, approved.</p> <p>(6) The second set of sureties having, before their liability as such begun, wrongfully connected themselves with the subject matter of the suit, which was the property of the estate, are liable in connection with the sureties upon the first bond, without reference to the bond which they afterwards executed.</p> <p>(7) In ascertaining who are proper parties to a suit, it is not indispensable that all the parties should have an interest in all the matters in controversy; it will be sufficient if each party has an interest in some matters in the suit, and they are connected with the others.</p> <p>(8) One who improperly obtains from a trustee a part of the trust estate is a proper party to a suit against the trustee to enforce the purposes of the trust.</p> <p>(9) The second set of sureties, holding the proceeds of funds thus invested in railway stock, on account of which funds in part the liability of the first set of sureties depends, cannot be permitted to appropriate the same in discharge of their own liability, to the prejudice of the first set of sureties.</p>

Error from Caldwell. Tried below before the Hon. John P. White. Suit by Conrad & Fabel, as partners, against T. H. Huff and A. L. Brock.

Tried below before the Hon. Jo Abbott. Suit brought by appellees against Lizzie Griffie, administratrix, Hattie Griffie and Alva Griffie, the first named being the surviving widow and administratrix of the estate of John Griffie, deceased, and the two latter his minor children, to establish title to and recover possession of an undivided half interest in lot 1, in block 38, in the town of Cleburne; for partition and damages, and to establish two claims for money secured by…

<p>1. Practice.— In trespass to try title; since the plaintiff is not required to set forth in his petition bis chain of title, it is not necessary that he should state the fact that the written evidence of any link in the chain has been lost. Being himself a competent witness under the statute, he may testify as such to the loss of a missing deed, without being required to first file the suppletory affidavit of its loss, required at common law.</p> <p>2. Lost deed — Secondary evidence.— A party claiming title to land through a lost deed, testified that'he saw it executed in 1858; searching for it in 1869, when, for the first time, he became interested from having married one having interests under it, he found it amongst the papers of one who had been county clerk. He delivered the deed to another person to have it recorded, and was afterwards informed by him that it had been destroyed by fire which burned his store. This person afterwards died, and his papers came into witness’ possession; he looked through them to ascertain the condition of his estate, and though not looking specially for the lost deed, knew that it was not among the papers of the deceased party to whom, he had intrusted it, and who reported its destruction by fire. Held, that the evidence of its former existence and loss was sufficient to admit secondary evidence of its contents.</p> <p>8. Secondary evidence.— When secondary evidence is resorted to for the purpose of establishing the former existence of a deed claimed to be lost, and no copy of which was preserved, after the lapse of twenty years a general description of the property conveyed and of the substance of the deed is all that can be required.</p> <p>4. Evidence — Witness.— A party to a suit against heirs claiming the property through their deceased ancestor, is precluded under art. 2248, R. S., not only from testifying to statements made to him by the deceased, and to transactions between the deceased and himself, but also as to any such statements to or transactions between deceased and third persons; and this although occurring at a time when the witness had no interest in such statements or transactions.</p>

Tried below before the Hon. John 0. Robertson. Suit brought by appellants against appellees to recover an undivided one-fifth interest in one thousand acres of land, alleged to be the interest to which W. D. Bailey was entitled as an heir at law of W. S. Bailey and his wife, upon the death of Mrs, W. S. Bailey.

Tried below before the Hon. Everett. Lewis. Suit brought by the county of Guadalupe against Wilson county for the jurisdiction and control of territory alleged to be a portion of the county of Guadalupe, by an act of the legislature of Texas, passed on the-day of March, 1846, incorporating the county of Guadalupe, etc.; the portion sued for being included within the boundaries of Guadalupe county as then established by said act.

Tried below before the Hon. W. D. Wood. The facts are stated in the opinion and in the former reports of the same case. House & Co. v. Collins, 42 Tex., 487; Randall v. Collins, 52 Tex., 435.

<p>1. Practice — Will—Evidence.— An instrument was offered in evidence as an ancient document coining from a proper custody, as follows:</p> <p>“ Friday, Oct. the 18th, 1838.</p> <p>“I, John Toole, of the city of New Orleans, state of Louisiana, bequeath to Mr. Thomas Redmond, or order, of the city of New Orleans, one quarter league of land and one town lot, situated in Aransas, in Power’s colony, Texas, as Martin</p> <p>Lawler has the deeds to it. Signed by my own hand. - his„, “ John x Toole.</p> <p>“Witness, Martin McLoughlin. mark</p> <p>“ Witness, James Toney.”</p> <p>It was offered as the will of John Toole in 1881, and had never been probated either in Louisiana or Texas. The land in controversy had been conveyed by John Toole to Martin Lawler before the date of the instrument offered. It was objected to and excluded on the ground that it was not described, and a copy thereof given in the abstract of title under which the party offering it claimed, and which was demanded by the objector before the trial. Held,</p> <p>(1) That since the record did not show that Toole was dead, the probate of the pretended will, nor did the instrument contain a sufficient description of the property claimed to have been devised by it; coupled with the fact that Toole, b ifore its date, had conveyed the property by deed to one under whom the adversary claimed, it did not appear from the paper that it was the intention of the testator to convey the land in controversy, its exclusion did not prejudice any right of those claiming ‘ under it, and without considering whether the objection to its introduction urged below was properly taken or not, its exclusion was immaterial.</p> <p>2. Heirship.— See opinion for facts held totally insufficient to establish sole heirship.</p> <p>3. Description — Limitation — Stale demand.— A party claiming title by limitation of five years under a recorded deed, read in evidence his tax deed conveying “ one thousand one hundred and seven acres of land taken from the league of land originally granted to John Toole, lying and being in the county of San Patricio, on the Popalotte, and more particularly designated as that part of said league of land claimed and held by Thomas Redmond.” The land in controversy was not part of a league granted to John Toole, but was a separate survey of one thousand one hundred and seven acres granted to him. Held,</p> <p>(1) The deed did not describe the land in controversy with that clearness and certainty requisite to meet the rigid requirements of the five years’ statute of limitations.</p> <p>4. Limitation — Payment op taxes.— A failure to prove payment of taxes for any year of the five years’ possession under a deed recorded will be fatal to the defense of limitation under the five years’ statute.</p> <p>5. Possession.— The casual and incomplete possession of land, which is not visibly occupied by him who claims such possession, but is evidenced by grazing sheep and cattle on it, and constructing and fencing around a tank of water, does not import such dominion and control of the land as to show a claim exclusive, hostile, adverse, or entirely inconsistent with the claim of the true owner.</p> <p>6. Stale demand.— No conclusion adverse to the legal title of the true owner of land can be drawn from the fact that, after his title is perfected, he refrains for a long period of years to take corporeal possession of it.</p> <p>7. Possession.— One’s title to land in law draws to it the possession, and the constructive possession remains with the owner of the fee until some hostile act amounting in law to an act of ouster destroys the character of possession.</p> <p>8. Same — Failure to pay taxes—Laches.— The mere failure of the real owner of land to pay taxes, or his laches or delay in bringing suit for its recovery against an adverse claimant, will not defeat his action, when there has been no actual adverse possession for a sufficient length of time to support a plea of limitations.</p> <p>9. Case approved.— Andrews v. Marshall, 26 Tex., 217, approved.</p> <p>10. Cases distinguished.— This case distinguished from Carlisle v. Hart, 27 Tex., 350, and Connoly v. Hammond, 51 Tex., 648. Those were cases in which the doctrine of stale demand was invoked against the assertion of a right purely equitable and which had been long neglected.</p>

<p>Error from San Patricio.</p> <p>On May 2, 1879, appellant brought suit in the form of an action of trespass to try title against appellee. The real object seems to have been to fix the location of a dividing line between the lands of the litigants. Judgment was rendered for defendant in that suit in May, 1879. Afterwards this suit was brought by appellant against the same defendant on the same alleged cause of action, February 18, 1880. Judgment for defendant below sustaining his plea in bar.</p>

Error from San Patricio. Tried below before the Hon. H. Olay Pleasants. This case will be found sufficiently stated in 44 Tex., 392. A statement of the evidence would not render more plain the opinion, or aid in understanding the conclusions announced in it.

Win. H, Burkhart. Appellees brought this action of trespass to try title against appellants, April 21, 1875, claiming the land described in the petition by virtue of patents issued to them, one for one hundred and eighty acres as assignees of W. 0. B. Schmidt, dated December 5, 1873,. the other for three hundred and twenty acres as assignees of Jacob Kaderli, dated September 3, 1873.

Tried below before the Hon. H. Olay Pleasants. . On the 9th of August, 1881, the commissioners’ court of the county of De Witt levied a special tax of one-fifth of one per cent, on all property subject to taxation in that county on the 1st day of January, 1881; the levy being for building an addition to and repairs on the court house. Appellants, on the 28th of February, 1882, applied to the Hon. IT.

Tried below before the Hon. H. Olay Pleasants. Suit in trespass to try title, brought by Terrell and others^ who claimed under Louisa Sevier, against Anna Teal and others, who claimed under Peter Teal, deceased. The defense was the plea of not guilty and the limitation of ten years. The land in controversy was originally granted to John B. Sideck. The plaintiffs derived title under conveyances from Mrs. Sevier.

Error from San Patricio. Tried below before the Hon. D. P. Harr. Suit by the county of San Patricio against plaintiffs in error, Kate Timón, surviving wife of H. Timón, deceased (former sheriff of San Patricio county during the years 1876-80), and John Timón and Nicholas Bluntzer as sureties on the official bonds of the sheriff, H. Timón, for certain moneys alleged to be due the county by said sheriff at his death.

Error from Jefferson. Tried below before the Hon. H. 0. Pedigo. Suit by injunction, filed April 24, 1874, by appellants George T. Bondies, William Bondies and Laura George, joined by her husband, W. A. George, against appellee T. R. Buford, executor of Letitia Simpson, deceased. Buford, the defendant, resided in the county of Jefferson, in which the suit was brought, but the will of Mrs.'Simpson was probated in the county of San Augustine, where she died in the year 1861.

Tried below before the Hon. L. W. Moore. Suit brought October 28, 1879, by Miohaelis, against the appellant Zapp, upon the covenants of a title bond from Zapp to Michaelis, of date March 24,1869, for thirty and -fa acres, a part of what was known as the “ Pullen tract,” adjacent to the village of Round Top, in Fayette county. The consideration was $358.50, as follows: $50 cash, and the balance in instalments, the last of which fell due January 1, 1872.

Tried below before the Hon. John 0. Russell. This suit was brought by E. B. Whitmore to recover from appellant $10,000 compensatory damages, $400 special damages, and $10,000 punitory damages, for injuries to his person, alleged to have been caused on July 26, 1881, by the use of a defective engine operated by a careless engineer in the employ of appellant, and while plaintiff was also in its employ.

San Patricio. Tried below before the Hon. D. P. Marr. , This was a suit of trespass to try title, brought by Whitehead against John Timón, to recover a third of a league of land described in a patent issued to Hiram Riggs. Timón claimed that the land was part of a colonial grant issued to Juan de la Garza.

Tried below before the Hon. L. W. Moore. This suit was brought by Bebecca Null and others, plaintiffs in the court below, on April 28, 1881.

Tried below before the Hon. H. Clay Pleasants. Appellants were in possession of a stock of goods, wares and merchandise conveyed in trust to Iglehart by an insolvent debtor (John Owens), to be sold to pay the debt due to appellants, amounting to about $4,500. Appellees, other creditors of Owens, sued out an attachment against him and procured its levy on the stock of goods in appellants’ possession.

Error from Webb. Tried below before the Hon. J. D. Russell.. Suit filed March 3, 1880, to recover possession of lots 5 and 6, in. block 113, in the city of Laredo. Plaintiff alleged that on the 17th day of December, 1878, he was lawfully seized and possessed of those lots; that while so seized and possessed, defendant, by force and arms, entered into and upon said premises, and did by force and arms eject plaintiff therefrom, and had ever since held possession of the same.

<p>Error from. Madison. Tried below before the Hon. W. D. Wood.</p>

Tried below before the Hon. Jo Abbott. Appellee, as administrator of James Black, deceased, had recovered a judgment against W. Hile Elam.for the purchase money in part of a tract of land sold by Black to W. Hile Elam, with decree of foreclosure. The amount was $1,189.73. Haney and John Elam, father and mother of W. Hile Elam, were parties defendants, because the deed by Black was made to them. Intervenor Graves was also adjudged $254.74, and S. A. Elam $325.75.

Tried below before the Hon. H. 0. Pedigo. This suit was brought by Trinity county against Polk county March 31, 1877, to recover $620, claimed to be the pro rata portion of the existing indebtedness of Trinity county, owing by the citizens of a certain territory taken from Trinity and attached to Polk county; and in the alternative to recover the said territory, and all the taxes that had been collected from the same by Polk county.

Error from Polk. Tried below before the Hon. II. 0. Pedigo. This suit was brought in the district court by defendant in error against W. W. Hunter and plaintiffs in error.

Tried below before the Hon. Wm. H. Stewart. Appellant brought this suit against the city of Galveston May 21, 1877, to recover the sum of $0,832.82; of that amount, $6,679.01 was claimed as fees of the city clerk received and appropriated by the appellee from the 1st day of May, 1875, to the 31st day of March, 1877, during which time appellant claims to have been the clerk of said city, and as such entitled to said fees.

Tried below before the Hon. James Hasterson. This case rivals that of Jarndyce v. Jarndyce, at least in its duration.

Tried below before the Hon. Everett Lewis. Ehrenworth. brought this suit against Friedlander and others on the 1st day of February, 1876. He sued as one of the sureties on the bond of Dora Morris, administratrix of Carl Morris, deceased, who was also a defendant in this case.

<p>1. Practice — Attachment.—The writ of attachment and the officer’s return thereon should always, in attachment proceedings, constitute a part of the record on appeal or 'writ of error to the supreme court.</p> <p>2. Attachment — Affidavit of claimant.—When the claimant of property seized by attachment files as such claimant the statutory bond, and at the same time makes written oath that his claim is made in good faith, the absence of the jurat, which through inadvertence was not attached to the affidavit, will not vitiate the proceedings if cured in time by amendment.</p> <p>3. Case distinguished.—This case distinguished from Carter v. Carter, 36 Tex., 693.</p> <p>4. Cases approved — Intervention.—The doctrine announced in Pool v. Sandford, 52 Tex., 621, and' Rodrigues v. Trevino, 54 Tex., 198, reaffirmed. The proper remedy for one whose property is seized for the debt of another is not by intervention, but by filing a claimant’s bond under the statute or pursuing the officer who made the levy in an action of trespass.</p> <p>5. Cases apprjyed.— Sims v. Redding, 20 Tex., 388, and Arnold v. Kreissler, 23 Tex., 581, approved.</p>

Tried below before the Hon. James Masterson. Injunction suit by E. H. Harrington and Mary Harrington, his wife, against William Burnett and Ben McCarthy, by which they sought to enjoin them from constructing a building or any improvements on a piece of ground adjoining the western boundary line of E. H. Harrington and wife’s homestead tract, to a distance of eighty feet therefrom, alleging: 1st. That the same was a street, and was originally dedicated as such by William…

Tried below before the Hon. Wm. H. Stewart. Suit brought by John P. Davis against B. A. Burney, in his official capacity as collector of taxes for Galveston county, to recover the sum of $601.94, claimed to be the amount of illegal county taxes paid to appellee by appellant under protest.

Tried below before the Hon. Wm. TI. Burkhart. On the 21st day of October, 1879, appellants sued appellee on a note for $100, before Frank McGreal, a justice of the peace of precinct Ho. 2 of Brazoria county, and on the 19th day of January, 1880, they instituted another suit against appellee on another note for $130.39, in the same court. Certain credits were allowed on these notes, reducing them in the aggregate to less than $200.

Tried below before the Hon. John R. Kennard. Suit was brought in the district court of Houston county by appellants, J. 0. Wooters, Collins & Douglas, W. E. Mayes, Estey Melius and Dwight Ripley, against Stephen Hollingsworth and W. A. Davis on certain obligations given for the purchase money of land, and to foreclose the vendor’s lien.

Error from Orange. Tried below before the Hon. W. H. Ford. In this suit by Stark against Whitman, brought in Orange county, the defendant below interposed his plea of privilege to the jurisdiction, in which he stated very fully, under oath, that he was a citizen of Newton county when the suit was brought, but failed to negative any of the exceptions to the rule which required him to be sued in the county of his residence. The plea was sustained and the suit dismissed.

Error from Trinity. Tried below before the Hon. John R. Kennard. Suit by S. T. Robb against J. F. Kelly and J. W. Roberts, filed in the district court of Trinity county May 9, 1881, to enjoin the defendants from cutting and removing oalc timber from plaintiff’s land, and for damages. A writ of injunction was sued out. Defendants filed a general demurrer and motion to dissolve the injunction, and a general denial.

Houston. Tried below before the Hon. John R. Kennard. In addition to the facts stated in the opinion, the following appeared: Appellee offered in evidence depositions of Lee Wallace, that he, in 1878, leased the land in controversy of appellant for'three years ending January 1, 1881, with the privilege of purchasing, and that he sub-rented to Hart for the years 1879 and 1880.

Tried below before the Hon. John E. Kennard. Suit filed August 9,1880, by appellant against appellee and D. I). and A. M. Powell, for the recovery of about one hundred acres of land.

Tried below before the Hon. L. W. Moore. Suit for the trial of the right to property in goods levied upon by virtue of an execution from a justice of the peace in favor of CL W. Klaeden against Wm. Newman, as the property of the defendant. The levy was made January 30, 1879. On the following day the claimant, Susan, made affidavit and bond, one of the sureties being W. W. Bethany.

Error from Jefferson. Tried below before the lion. W. II. Ford. Suit instituted for damages by the Western Union Telegraph Co. Defendants answered by general demurrer, special demurrers, and general denial. The cause went to trial before a jury on the claim for damages for the amount of money paid to employees, the sum of $207.

Tried below before the Hon. W. H. , Ford. Minerva Merchant, the surviving wife of James A. Merchant, deceased, suing for herself and James P. Merchant, Laura M. Merchant, Ambrose P. Merchant, Ida Merchant and Tip Merchant, the' minor children of herself and deceased, and Lizzie Pietzcker, joined-by her husband, Ezra J. Pietzcker, brought this action against appellants to recover damages for the alleged wrongful taking and conversion by appellants of certain personal property…

<p>Aj’peal from Jefferson. Tried below before the Hon. W. H. Ford.</p>

<p>1. City charter — Veto message.— It is not necessary that a veto message of the mayor of Galveston, objecting to the passage of an ordinance or resolution, should be returned to the city council within three days after the passage of the ordinance or resolution which it proposes to veto. Ho such duty can be inferred from the requirement to place such resolution or ordinance in the office of the city clerk, and for it to remain there for three days before going into effect. It there awaits the veto, or the express or silent approval of the mayor, for three days.</p> <p>2. Same.— As the objections of the mayor, in case of veto, are to be returned to the city council with the ordinance vetoed, they must be placed with it in the clerk’s office to await a session of the city council, and when this occurs they are to be sent in together for action.</p> <p>3. Veto of a mayor.— A verbal motion, made and carried in the city council of the city of Galveston, to accept a proposed contract on the part of a citizen to do city printing, which was referred by a committee having full control of the matter to the council for its action, was not such a resolution as was required to be placed in the clerk’s office for three days to await the action of the mayor.</p> <p>4. Same.— The mayor of the city of Galveston has no power to compel a two-thirds vote of the city council by his veto, in order to validate a contract with the city, authorized by previous resolution, and ratified on motion by the council.</p> <p>5. Cases approved.— Gas Co. v. San Francisco, 6 Cal., 190, and San Antonio v. Lewis, 9 Tex., 69, approved.</p> <p>6. City charter construed.—Art. V, sec. 1, title X, of the Galveston city charter, did not confer on the city council power to select and contract with a new printer, in its discretion, during the municipal year for which a contract with another printer had already been made.</p> <p>7. Charge of the court — Verdict.— A verdict of the jury sustaining a contract for erroneous reasons under the influence of an erroneous charge will not be disturbed when the verdict is clearly right and the contract valid, though from a different view of the law from that given in charge by the district judge.</p>

Error from ¡Newton. Tried below before the Hon. W. H. Ford. This was a suit originally instituted,by appellees before a justice of the peace in Newton county. Exceptions to the service of citation were sustained April 9,1881, when Woods & Co. obtained leave to amend.

<p>1. Acceptance—Pleading.— In a suit against the acceptor of a bill, who accepted it to be paid “so soon ” as the acceptor “should find himself in funds,” it must be alleged and proved that the acceptor was in funds to pay the bill; and this condition is not fulfilled by his having property other than money in his hands more .than sufficient in value to pay the bill. .</p>

<p>Appeal from. Chambers. Tried below before the Hon. Edwin Hobby.</p> <p>On March 5, 1880, appellant, as the administratrix with the will annexed of the estate of Traugott Schlutter, deceased, brought this action of trespass to try title against appellee Mayes, to recover the lands described in the petition, and to remove cloud from title, etc., claiming the lands as belonging to the estate of Schlutter, and that the same had been illegally sold and conveyed to appellee by one Howard, who was acting as the executor of Schlutter’s will.</p> <p>The will bore date December 12, 1871, and was probated June 9, 1875; the deed to appellant was executed January 7, 1876. Appellant was appointed administratrix with the will annexed August 4, 1876. By the will the property of Schlutter was bequeathed to John Howard, Bever B. Davis and Julius Fredrich, “ and the survivor of them in trust,” as therein provided. He also appointed them executors, and provided that they should act independent of the courts. Davis and Fredrich renounced the trust and Howard qualified. It was claimed that he had no power under the will to make the sale and conveyance to appellee.</p> <p>Appellee answered by a general demurrer, and “ not guilty.”</p> <p>March 8, 1881, a trial of the cause was had, which resulted in a verdict and judgment for appellee, from which this appeal was taken.</p> <p>The points relied upon for reversal were: 1st. Howard could not sell and convey land under the terms of the will, Fredrich and Davis having declined the trust. 2d. The court erred in charging the jury that Howard had authority to sell the property to pay debts, or to invest the proceeds so as to secure an income; for in the first instance there was no evidence authorizing the charges, and in the second case there was no such power conferred by the will.</p>

<p>1. Landlord and tenant.— There was no such privity between a landlord and the sub-tenant, arising merely from that relation, as would subject the sub-tenant to liability for the debt of the tenant from whom he has leased, to the landlord, there being neither privity of contract or of estate between them. Pasch. Dig., arts. 5027, 5028.</p> <p>2. Same—Pleading.—The pleading of a landlord who sought to justify his seizure of the crop of a sub-tenant under a distress warrant issued under the statute in force in 1873, alleged an agreement that all the crops raised by the sub-tenant should be held subject to the payment of the landlord’s rent; but they failed to state with what party the sub-tenant had such agreement. Held,</p> <p>(1) That under the rule which requires a plea to be construed most strictly against the pleader, the agreement will be regarded as having been made between the tenant and sub-tenant, and not with the landlord.</p>

Tried below before the Hon. James Masterson. For a full and complete statement of the case, that contained in appellee’s brief is adopted.

Harris. Tried below before the Hon. James Masterson. Appellant brought this suit in trespass to try title on the 20th of June, 1874, against C. P. McCormick, to recover possession of fifty acres of land in Harris county, being a portion of the league originally granted by the Mexican government to Arthur McCormick, claiming title to and possession of the same on the 1st day of January, 1874, when defendant’s entry was alleged.

<p>1. Quashing an execution.— An execution cannot be quashed after it has performed its functions and has been returned by the sheriff.</p> <p>2. Execution.— A claimant of property seized under execution will not be heard to assert its invalidity unless it be void.</p> <p>3. Same.—An execution issued on a dormant judgment is not void, but voidable merely.</p> <p>4. Motion to quash Execution.— Only such defects as are apparent on the face of an execution, and the records on which the questions presented by a motion to quash the execution arise, can be reached by such motion.</p> <p>5. Same.— A third party desiring to attack the validity of an execution which is voidable only should do so by direct pleading, or exceptions filed in the nature of a demurrer to the sufficiency of evidence, in case the supposed defect renders it void, or by tendering an issue of fact under the direction of the court. Unless the execution be attacked in some such way, no presumption will be indulged in favor of a judgment declaring the invalidity of the execution, notwithstanding there is neither statement of facts or bill of exceptions in the transcript.</p>

<p>Appeal from Jefferson. Tried below before the Horn W. H. Ford. '</p> <p>In this cause the following motion' was filed by appellee’s attorney.</p> <p>“ And now comes the appellee, H. W. Joachimi, by his attorney in this cause, and moves the court to strike out the bill of exceptions of the appellant, the Sabine & East Texas Railway Co., for the following reason, namely, because the said bill of exceptions, containing two exceptions, was not filed within ten days after the entry of the judgment in the cause in the district court. The cause was tried, verdict rendered, and judgment entered on the 24th day of ¡November, 1882, and the bill of exceptions was not filed until December 5, 1882. R. S., art. 1363.</p> <p>“ Tom J. Russell, Attorney for Appellee.</p> <p>“The appellee H. W. Joachimi, by his attorney, moves the court to strike out the statement of facts as appears in the transcript in this cause, because the rules of the court and the statute (R. S., arts. 1377, 1378) were not complied with, in this, that the appellant, nor its attorneys, did not submit the statement of facts to the appellee H. W. Joachimi, or Tom J. Russell, his attorney, for inspection and acceptance or rejection, before the same was presented to the judge of the district court of Jefferson county, who tried the cause for his approval, as appears by the appended affidavit.</p> <p>“ Tom J. Russell, Attorney for H. W. Joachimi.</p> <p>“ The State of Texas, County of Galveston.</p> <p>“ Before me, the undersigned authority, personally appeared Tom J. Bussell, attorney of record in the cause Bo. -, Sabine & East Texas Bailway Co., appellant, v. H. W. Joachimi, appellee, who, being duly sworn, says that he was the attorney for the plaintiff H. W. Joachimi v. Sabine & East Texas Bailway Co., defendant in the court below; that judgment was given on the trial for the plaintiff, and that defendant appealed; that an order was taken by defendant of ten days’ time after adjournment of court, in which to prepare and file a statement of facts; that the court adjourned on December 5, 1882; that he, affiant, has an office in the city of Beaumont, county seat of Jefferson county; that he was in his office during office hours during the days as follows: On "Wednesday, December 6th; Thursday, December Yth; afternoon of Friday, December 8th; on Sunday, December 10th; on Tuesday, December 12th, and on Wednesday, December 13, 1882; and that during that time, the days above named, nor at any other time previous to the filing of said statement of facts, December 15, 1882, did the appellants, the defendants below, or their attorneys of record, O’Brien & John, nor other person on behalf of appellants, present to affiant the statement of facts in said cause for inspection, so that he could agree to or reject the same; and that affiant never saw the statement of facts as made up by appellant or its attorneys before the same was filed in the office of the district court of Jefferson county; and affiant is informed by H. W. Joachimi, appellee, that no statement of facts in said cause was ever presented to him for inspection, by appellant, its attorneys or other person, from and after the adjournment of the court December 5, 1882, and on or before the 15th day of December, 1882. Tom J. Bussell.</p> <p>“ And further, the appellee in this cause moves the court to dismiss this cause, namely, the Sabine & East Texas Bailway Company, appellant, v. H. W. Joachimi, appellee, because the appeal is not properly perfected, in this, that there is only one copy of appellant’s brief filed in this court in the cause, as the rules require.</p> <p>“ Tom J. Bussell, Attorney for Appellant.</p> <p>“ The above affidavit was sworn to and subscribed before me this 16th day of January, A. D. 1882.</p> <p>“ Dan’l D. Atchison, Clerk.”</p> <p>Appellant’s counsel filed the following answer to the foregoing motion, January 16, 1883:</p> <p>“ And now comes George W. O’Brien, attorney for appellant, and ' being duly sworn, says: That having several statements of facts to prepare in other cases during the time allotted after the term, he had not completed them until about the expiration of the time, and the judge being at W oodville, he took it for granted that T. J. Russell, Esq., had, in this cause, notice of appeal having been given, prepared a statement for appellee, and took his statement for appellant to the judge at "Woodville, and found in the hands of the judge the appellee’s statement made up by the said T. J. Russell, Esq., a part whereof, in the writing of the said Russell, Esq., was adopted by said judge and made a part of the statement which is a part of the record. Geo. W. O’Brien.</p> <p>“ Sworn to and subscribed before me by the said Geo. W. O’Brien this 17th day of January, A. D. 1883.</p> <p>u Dan’l D. Atchison, Clerk.”</p>

<p>Appeal from Jefferson. Tried below before the Hon. W. H. Ford.</p>

<p>Appeal, from ¡Nueces. Tried below before the Hon. John 0. Russell.</p>

Tried below before the Hon. Edwin Hobby. In 1877 J. W. Davis and his mother, Amanda Davis, sold to appellees a certain tract of land situated in San Jacinto county, estimated to contain two hundred and ninety-five acres, upon which there was a farm which the Davises, the vendors, had been cultivating for about twenty-five years, for which the appellees gave their five promissory notes for §354 each, due in one, two, three, four and five years, with interest from maturity.

<p>1. "Venue.— The right to be sued in one’s own county is a personal privilege which will be regarded as waived unless specially claimed. When the fact does not appear on the face of the petition that the defendant is sued in some other county than that of his residence, he must raise the question of his right to be sued in the county where lie lives by plea in abatement; when it does so appear, he may avail himself of the privilege by special demurrer.</p> <p>‘2. Revival of judgment by scire facias — Venue.—A proceeding to revive a judgment by scire facias is not a new suit, but a continuance of the one in which the judgment was obtained, and the proper venue of it is the county in which the judgment was rendered.</p> <p>3. Scire facias to revive judgment lien.— A scire facias may be sued out on a judgment which, though not dormant, has lost its lien.</p>

Tried below before the Hon. Edwin Hobby. Appellee Martha E. Adams, joined by her husband John H. Adams, sued appellant for the title and possession of a tract of land described in the petition as containing sixty acres, and alleged to have been the homestead of appellees and their children; that the land had for a number of years been used by them to support themselves and their family by means of the corn and cotton and produce raised therefrom; that appellees have no other…

From Bexar county. This was an application to the supreme court for mandmnus, in which it was stated that Leonardo, Garza, as plaintiff, on the 12th of December, 1882, recovered in the district court of Bexar county a judgment against the applicants for the restitution of certain premises, and for $250 damages; that on the 14th of December, 1882, the plaintiff filed a written motion to reform the judgment (unnecessary to be here explained), and which was overruled; that…

<p>Appeal from Hardin. Tried below before the Hon. Edwin Hobby.</p>

<p>1. Boundary — Compromise line.— In a suit between parties involving a question of boundary, it was shown that after different surveyors had disagreed as to the true locality of the dividing line, the parties agreed themselves on a line which should be the dividing line between their adjacent lands, and one of them afterwards built his fence and constructed his houses with reference to that agreed line as the true boundary. Held,</p> <p>(1) The fact that one of the parties would not have assented to the agreed line but for the belief that it was the true line, and, discovering his error, attempted to repudiate the agreement, afforded no ground for his relief; he was bound by the agreed line.</p> <p>(2) The validity of an agreement for the settlement of a boundary does not depend on the accuracy with which the line is run.</p> <p>(3) Whether the parties were right or wrong in locating the agreed line properly was immaterial, if there was doubt or dispute as to its correct location on the ground, and they settled that agreement by a compromise line.</p> <p>(4) Time and long acquiescence are not necessary to the validity of a parol agreement fixing a compromise line between adjacent surveys.</p> <p>(5) When the parties have acted with entire good faith, a court of equity will not disturb such compromise line on the ground of mistake of fact. The rule which enforces such agreements rests on the soundest principles of public policy and justice.</p> <p>(6) Coleman v. Smith, 55 Tex., 259; Hoxie v. Clay, 20 Tex., 536, and George v. Thomas, 16 Tex., 89, discussed and approved.</p> <p>(7) The special issues found by the jury having ascertained all the facts necessary to a final decision of the case, the judgment below was reversed, with instructions to the district court to take such steps as might be necessary to have described and defined on the ground the dividing line which the parties had agreed on, and to enter a judgment establishing that line.</p>

Error from Wharton. Tried beloxv before the Hon. Wm. H. Burkhart. This suit was brought November 15, 1877, by defendant in error, J. Bust, administrator de bonis non of the estate of ¡M¡. S. Sfcith, deceased, against plaintiffs in error, O. A. Floyd, J. A. Hamilton and W. J. Goodsey, upon a note given by them for land purchased by Floyd at a sale made by the administrator, and to foreclose a mortgage thereon given by the purchaser.

Tried below before the Hon. James Masterson. This suit was instituted in the name of the county of Harris against the following officials of said county, viz.: M. Looscan, the county attorney; John A. Kerlicks, county clerk; Henry Scherffins, county treasurer; C. Anson Jones, county judge; O. C. Mulligan, Robert Blalock, James Harrington and J. C. McDougal, county commissioners.

<p>1. Ekaud—-Sefabate 'acknowledgment of wife.— In a suit by the husband and wife to recover property occupied by them as a homestead at the time of its conveyance, in which they sought to set aside their deed on the ground that the certificate of the notary to the wife’s separate acknowledgment, which was formal in its terms, was in fact untrue as to such separate acknowledgment, and also as to her privy examination, and the making of the explanation of the contents of the deed, as required by law, it was also charged that a fraudulent combination to swindle and deceive the wife,existed between the notary public and the purchaser. Held,</p> <p>(1) A charge of the court to the effect that the certificate of the officer to the wife’s separate acknowledgment, made in compliance with the statute, is not conclusive of the facts certified to, but may be attacked by the wife, even though the purchaser had completed the purchase innocent of fraud, and ignorant of any wrong or neglect on the part of the officer, was error.</p> <p>2. Cases approved.— Hartley v. Frosh, 6 Tex., 208; Shelby v. Burtis, 18 Tex., 644; Wiley v. Prince, 21 Tex., 637; Williams v. Pouns, 48 Tex., 146, and Kocourek v. Marak, 54 Tex., 205, approved.</p> <p>3. Separate acknowledgment op wipe. — The wife cannot impeach for fraud the certificate of her acknowledgment to a deed when the same is in conformity to the requisitions of the statutes, and when there is an adequate consideration paid to support the deed, if the purchaser neither participated in the fraud or had knowledge of its existence.</p>

Tried below before the Hon. W. H. Stewart. The opinion states the case. The charge of the court, which is short, will be found in appellees’ brief.

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

Tried below before the Hon. E. Lewis. The appellants sued the appellees on an account for $2,859.65, and caused to be issued and levied, in January, 1881, an attachment on the goods of the defendants. The attachment was quashed on the motion of defendants.

<p>1. Judgment final — Statute constbued.— When the suit is against a partnership, one member only of the firm being served with process, no judgment of discontinuance as to the member not served is contemplated by the statute. The mere taking of the judgment against the partnership, and against the partner served with process, operates an abandonment of future proceedings in the particular action against the partner not served, by execution against his individual property. Such a practice is not in contravention of article 1337 of the Revised Statutes.</p>

Tried below before the Hon. ¥m. H. Stewart. Suit filed March 21,1881, by John Wegner and Ernest Wegner in Galveston district court, against Henry Weyer, Henry Homberg, Ferdinand Sommers, Alfred Hewsom, John Heiman and Wm.

Tried below before the Hon. Wm. H. Stewart. Suit was brought by the appellee (plaintiff below) on the 3d day of May, 1880, in the district court of Galveston county against the appellant, to recover of him the sum of $1,297.34, with interest at ten per cent, per annum from December 31, 1874, on $1,024.19, and on $251 from the 15th of January, 1875, for the cost of construction of certain sidewalks alleged to have been constructed by the plaintiff, the city of Galveston, and…

Tried below before the Hon. Everett Lewis. This suit was brought July 24, 1880, by J. H. Halfman against appellant, alleging that in 1854 one Wm.

<p>1. Jurisdiction.— The constitution does not confer on the county courts, sitting in probate, jurisdiction over a claim by the former ward against the sureties on a guardian’s bond, for which judgment had already been rendered against the former guardian.</p> <p>2. Same.— The district court alone had jurisdiction, and the legislature had no power to confer upon county courts, as courts of probate, any jurisdiction not conferred upon them by the constitution.</p> <p>3. Same.— If the court a quo had no jurisdiction, an appeal cannot be entertained, although the court to which the appeal has been taken may have original jurisdiction of the question. When such an appeal has been taken from a probate court, having no jurisdiction, to the district court, which would have had original jurisdiction, and from its judgment an appeal is taken to the supreme court, the case will be dismissed.</p> <p>4. Statutes construed.— Arts. 2695 and 2696 of the Revised Statutes construed</p>

<p>1. Appeal.— On appeal from the judgment of the district court which allowed out of an estate a specified sum for a year’s support for a widow and children, a further sum in lieu of exempted articles, and an allowance of §2,000 in lieu of homestead, that judgment was reversed as to the allowance of §2,000, and affirmed in all other respects. Exceptions were filed below to the mandate of the supreme court, alleging that the judgment of the supreme court was void, which was overruled, and the district court reformed its judgment so as to make it conform to the judgment of the supreme court. Held,</p> <p>(1) The judgment of the district court, in effect refusing to disregard the direction of the supreme court, was proper.</p> <p>(2) No appeal lies from a'judgment of .the district court rendered in accordance with a mandate of the supreme court, which provides in substance for the final disposition of a cause.</p>

Tried below before the Hon. T. 0. Barden. Action of trespass to try title. The suit was filed February 13, 1860, by appellants, as the heirs of Phillip Dimmit, against E. G. Sevier and wife, to recover an undivided half interest in two leagues of land granted to Juan Flores and Miguel Manchaca. Pending the suit the wife of Sevier died, and appellees, her children, claiming in her right, were made parties.

Tried below before the Hon. James Masterson. Action of trespass to try title, instituted February 25, 1881, in the district court for Harris county, by the appellees, Anna Yon Lupin and her husband, Theodore Yon Lupin, and Charles Yon Zeuner, against the appellants, Cantagrel and Blau, to recover fifty-one and one-eighth acres of land situated in Harris county, near Houston, and the value of the rent.

Tried below before the Hon. W. H. Ford. This is an injunction suit brought by the appellants to enjoin the sheriff of Jefferson county from enforcing by the sale of their personal property, which he had seized and advertised for sale to collect the alleged yearly rental claimed to be due from them to the state of Texas, on account of their having inclosed by fencing twelve and a quarter sections of public free school lands, amounting to $306.25, under the provisions of “ An…

. Tried below before the Hon. W. E. Collard. Appellees brought this suit against Stephen Jackson August 15, 1876, to recover the land described in the petition, deriving title as follows: 1st. A grant to Sterling 0. Eobertson of four leagues of land by the government of Coahuila and Texas. 2d. Deed of Eobertson to Hiles F. Smith for the two thousand two hundred and twenty-two acres in controversy. 3d. Deed from Smith to John Darrington. 4th.

' Tried below before the Hon. Win. H. Burkhart. Appellee, wife of O. L. Battle, who refused to join in the suit, sued her husband and John and Sears, appellants, in trespass to try title and partition, to recover and have set apart to her an interest of two-sevenths, her separate property, in a tract of land consisting of about two thousand six hundred acres. O. L. Battle did not answer.

Tried below before the Hon. Edwin Hobby. Appellees Henry and Margaret McGowen, as husband and wife, brought this suit against Ben McGowen and appellant, in form of trespass to try title, and for damages, to cancel deed, and recover one-third of one hundred and thirty-two acres of land alleged to be the homestead of plaintiffs Henry and Margaret.

<p>1. Evidence — Trespass to try title.— Under the former statute, which allowed a second suit in trespass to try title, when the plaintiff was defeated in his first action, he was permitted to offer the same evidence on the trial of the second suit, and this was allowed in a second suit brought to set aside a sheriff’s sale, which is in effect but a suit in trespass to try title.</p> <p>2. Sheriee’s sale — Inadequacy op consideration.— While mere inadequacy of consideration will not of itself authorize the annulment of a sheriff’s sale, yet when the price paid is grossly inadequate, the sale will be closely scrutinized, and slight additional circumstances will suffice to set it aside.</p>

Tried below before the Hon. Peyton F. Edwards. Suit by appellees to enjoin the county of Anderson and its officers from levying and collecting a special tax, known as the 66 subsidy special county tax,” on certain lands situate in Anderson county, Texas, patented to the International & Great ¡Northern ¡Railroad Company, by virtue of certain land certificates issued to the I. & G. FT.

Tried below before the Hon. H. G: Pedigo. Appellee brought this suit of trespass to try title against appellants and others March 29, 1870, to recover an undivided one-half interest in the land described in the petition.

Appeal, from. Victoria. Tried below before the Hon. H. Clay Pleasants. This suit was jointly brought by Leon & H. Blum and Heidenheimer Bros, against A. Goldman, administrator of the estate of T. C. Barden, deceased, and Eva L. Barden, his widow, and John Owens, to recover against said estate, in favor of Leon & II.

Tried below before the Hon. B. B. Gaines. This suit was brought April 14, 1882, by Amos Morrill against J. M. Bartlett and David Bainey to cancel and annul an agreement made between plaintiff and Bainey, to have surveyed and established the north line of a sixteen labor survey in the name of Price, and claimed by the plaintiff.

Error from Lavaca. Tried below before the Hon. Everett Lewis. The following plot of the J. C. Neil survey, and of the older surveys surrounding it when it was made, and for which its field notes called, is all that is needed to a proper understanding of the opinion:

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

<p>[Note.—The defendant in error filed the remittitur on the day when the opinion was delivered.— Reporter.]</p>

Tried below before the Hon. Wm. II. Stewart. On the 28th day of January, 1882, L. E. Edmondson, plaintiff below, brought suit against Mrs. A. Bourcier and James L. De Eorrest in the district court for Galveston county, for the recovery of a balance due for rent, and alleged in his petition “ That plaintiff and defendant Mrs. A. Bourcier entered into an agreement whereby defendant Bourcier was to rent and did rent from plaintiff lots numbers 12 and 13, in block Ho. 504, and…

<p>Error from Galveston. Tried below before the Hon. Wm. H. Stetfart.</p> <p>On the 3d of September, 1874, J. B. Coryell filed this suit, trespass to try title, for the property in controversy, being block Ho. 6 of the Love and Grosbeck survey, or southwest quarter of out-lot Ho. 13 of present map of the city of Galveston. '</p> <p>April 27, 1875, plaintiff filed his affidavit of diligent search for certain original deeds in his chain of title, among others a deed for the property by Antonio Officier to J. Bump, dated July 13, 1843, and that the same were lost. Plaintiff filed certified copies of said deeds from the records of Galveston county, and gave defendant notice of the filing thereof.</p> <p>This deed of Officier to Rump was proven for record by the only subscribing witness to it, and on trial the certified copy thereof was excluded by the court on the ground that a deed to be duly recorded must have two subscribing witnesses when it is proved for record by a witness. On appeal the commissioners of appeal held that this deed had been duly recorded, and in April, 1880, the mandate from the supreme court was filed in the district court.</p> <p>Defendants below filed trial amendment, December 16, 1881, in lieu of former answer, and set up general demurrer, plea of not guilty, plea of three years’ limitation, and that the deed of Antonio Officier to J. E. Rump was a forgery. They further alleged ownership of the property by inheritance as children and heirs of Antonio Officier and wife. Defendants filed, October 19, 1880, the affidavit of defendant Holmes, dated October 19, 1880, that he believed said deed (Officier to Rump) to be a forgery.</p> <p>Plaintiff filed supplemental petition excepting to filing of affidavit of forgery, an 1 further alleging value of rents and profits of the property to be $5,000.</p> <p>The court overruled plaintiff’s exceptions. Verdict for plaintiff for the property and $440 for rents.</p> <p>Much evidence was introduced in this case touching the character of J. E. Rump, and of the subscribing witness Edmunds, but its detail here would, in view of that portion of it which is stated in the opinion, subserve no useful purpose.</p> <p>The assignments of error were as follows:</p> <p>First. The court erred in permitting Oscar Parish, the former clerk of the county court, to testify o,s to the existence of an original deed from Antonio Officier to J. E. Rump, by placing before him (the said Parish) the record book of the registration of deeds, and upon his reading and examination of the same, testifying that there must have been an original, as he made a true copy, but he had no personal recollection of the matter.</p> <p>Second. The court erred in admitting in evidence the certified copy of the deed from Antonio Officier to J. E. Rump, without further proof of the execution and existence of the original than the testimony of the witness Parish, as shown in the first assignment of errors.</p> <p>Third. The court erred in admitting in evidence the certified, statement from the office of the comptroller, showing the condition of the property sued for, as to the assessment and payment of taxes on the same.</p> <p>Fourth. . The court errecl on the trial of said cause in permitting the witness Oscar Farish to testify as to the contents of the records (the books of registration of deeds), the same not being in evidence in said cause.</p> <p>Fifth. The court erred on the trial of said cause in admitting in evidence the certified copy of the deed of Antonio Ofiicier to J. E. Rump, after the same had been impeached as a forgery in the manner prescribed by law.</p> <p>Sixth. The court erred in instructing the jury that “ a deed over thirty years old is evidence without any other proof.”</p> <p>Seventh. The court erred in permitting the certificate from the office of the comptroller of the state of Texas to be read in evidence without the same having been previously filed in said cause, and notice thereof given to the defendants or their attorneys of record.</p>

Tried below before the Hon. James Masterson. In addition to the statement- of the case contained in the opinion, it may be stated that the appellant's first assignment of error related to the following clause in the charge of the court: “ It is an admitted fact before you, and of which no further proof is necessary, that plaintiffs bought the property claimed by them respectively by said map, calling for the streets upon which the property fronts, and that at the institution…

Tried below before the Hon. ¥m. H. Stewart. Suit by Kauffman & Bunge on two notes executed by defendant, one for $6,000, with foreclosure asked of a deed of trust executed by defendant on a lot and house in the town of Kosse. The deed of trust also embraced a stock of merchandise and land in Montgomery county. Plaintiffs admitted sale of Montgomery land, and allowed a credit on the note for proceeds.

<p>Appeal from. Fort Bend. Tried below before the Hon. Wm. H. Burkhart.</p> <p>In a suit for four hundred and fifty acres of land in Fort Bend county, instituted by appellants, the children of Wm. G. Holán, deceased, by his first wife, against appellee, his second wife, and their children, judgment was rendered by the court without a jury, at the October term, 1880, decreeing the fee in the land to appellants, with the right to use and occupy two hundred acres embracing the homestead, during her life, to appellee, the widow.</p> <p>On October 0, 1881, appellants filed this suit, alleging that so much of the judgment as decreed the life estate to Mrs. Holán was an unauthorized “ concession,” made by their attorney without their knowledge or consent, and by his mistake, they not being present in person at the trial, on account of sore eyes in the family; that the reason they did not sue at once to correct or set aside the judgment was because Mrs. Holán verbally agreed with them that if they would stop the tax-sale about to be made of the land, put the premises in repair, sell the' property and give her $250, she would sign the deed to the land; that meanwhile Mrs. Holán claimed the use of the two hundred acres and the rents from it. There was no allegation that a sale had b§en effected and a deed tendered for Mrs. Holan’s signature, nor of tender or offer to tender the $250.</p> <p>The prayer was to correct the judgment so as to leave, standing the part vesting title to the land in plaintiffs, and strike out the part decreeing the life estate to Mrs. Holán, or in the alternative for specific performance of the alleged verbal agreement.</p> <p>October 27, 1881, appellee filed general and special exceptions; among the latter that the petition was not sworn to, that it did not seek a new trial, but to revise a judgment of the court itself; that the judgment was obtained by plaintiffs’ duly authorized agent and attorney of record, and that the mistake, if there was any, was between plaintiffs and their attorney, and was in no way the fault of defendant; that the alleged verbal agreement by defendant was within the statute of frauds and void, and was without consideration. Defendant also answered denying the allegations of the petition; that the judgment of Hovember, 1880, fully decided the rights of the parties, and the same was res. adjudicata; that there was no fraud, misrepresentation or mistake on defendant’s part about the judgment, but that it was rendered on full and fair understanding between her attorneys and those of plaintiffs; she denied making the alleged verbal agreement, but that if she did, it was in ignorance of her rights, and as it would be a contract for the sale of lands for a longer term than one year, and not to be performed within the year, and being verbal merely, it was null.</p> <p>Plaintiffs filed a first amended original petition October 25, 1882, seeking to avoid these general and special exceptions and pleas, but still failed to verify the petition by affidavit.</p> <p>On the same day the defendant filed an amended plea, claiming the homestead and two hundred acres absolutely, in fee, and praying that, if the judgment already rendered be opened, her rights thereto be heard and determined; but otherwise that she be quieted in her possession and use for life in the homestead and two hundred acres. October 27, 1882, the case was again tried by the court, which in effect refused to open the former judgment, and decreed that the rights of the parties to the land had been fully, fairly and finally adjudicated in that judgment; that they were then res adjudieata, and that no other legal cause of action was presented by the petition, and the same ivas dismissed. Motion for new trial, asking that the cause be reinstated and that plaintiffs be allowed to amend and to swear to their pleadings. Mo new matter was set up in this motion, nor any errors in the ruling specially pointed out.</p>