Volume 60 — Texas Reports

Tried below before the Hon. W. A. Blackburn. This was a suit of trespass to try title, in ordinary form, by appellant. Appellee defended on several pleas, by original and amended answer: 1. Demurrer. 2. General denial and not guilty. 3. Limitation under the three, five and ten years. 4. Boundary; and 5. Improvements in good faith. The assignments of error were as follows: 1. The court erred as set out in the several bills of exception, Uos. 1, 2, 3, 4, 5, 6, 7, 8 and 9. 2.

Tried below before the Hon. Allen Blacker. This case originated in the county court of Tom Green county, and was an application, filed November 1, 1879, by appellants, to require the appellee, Merritt, as administrator of the estate of F. G. Taylor, deceased, to sell certain real estate, and apply the proceeds to the payment of approved claims against the estate, owned by appellants.

Tried below before the Hon. L. C. Alexander. Appellant Mrs. Virginia A. Taylor (formerly Virginia A. Downs), joined by her husband, W. A. Taylor, with whom she intermarried in December, 1866, as plaintiffs below, brought suit on the 18th day of September, 1875, against Theodore Bland and his wife, Sallie G. W. Bland, as defendants, upon a note, of which the following is a copy: “ §2,500. ' Waco, Texas, June 2, 1863. “Five years after date I promise to pay Mrs. Virginia A.…

Tried below before the Hon. Jo Abbott. Suit brought by appellant to recover-$650 on a note, which on its face purported to be given to… Held: Fancher and defendant canceled their contract for the conveyance of said land, and by an understanding between all the parties, Brooks agreed to, and did, deliver up to Fancher his two notes; and it was agreed between Brooks and defendant that in lieu of his former security, that Fancher should convey to defendant the title to Brooks…

Tried below before the Hon. Spencer Ford. The original petition in this cause was filed January 21, 1874; the first amendment, October 30, 1877. The second amendment which appeared in the record was filed March 31, 1879, and a trial amendment April 1, 1879. The object of the suit, by W. K. Hamblen, was to enjoin a judgment which had been rendered in the district court of Milam county January 6, 1874, in favor of appellee against appellant and one W. II.

Tried below before the Hon. D. M. Prendergast. Trespass to try title, brought by E. D. McKie et al. against appellants. Plaintiffs claimed that the land was embraced in the Eachael Leach grant, and derived title from Jacob Elliot, deceased, McKie suing as his executor, and the others as his legatees. The appellants claimed under the Everett grant, and answered by a special plea of estoppel, not guilty, and suggestion of improvements.

Error from Falls. Tried below before the Hon. L. G. Alexander. Brown & Scott brought this action of trespass to try title against McLennan, May 14, 1874, claiming the land by and through a judgment, orders of sale and constable’s deed. The judgments were respectively in favor of Brown & Scott, against Z. I. Morrell, obtained before a justice of the peace on service by judicial attachment.

<p>Appeal from Palo Pinto. Tried below before the Hon. T. L. Hugent.</p>

<p>Appeal from Atascosa. Tried below before the Hon. D. P. Marr.</p>

<p>1. County commissioners’ court — Statute construed.—While a county-court may meet and transact business in the absence of the county judge, the law does not in such case recognize any number of the county commissioners less than the whole as constituting a court. It results that any order-made by three county commissioners, in the absence of the county judge, is not the order of a court, and is void.</p>

Tried below before the Hon. E. B. Turner. Action of trespass to try title, brought by John H. Conner and his children, as the heirs of their deceased mother, Salina A. Conner, for the recovery of about twenty-two lots in the city of Austin, against Ella R. Carter and her guardian, Elvira Rust. The defendants demurred, pleaded the general issue, and also set up special matters of defense.

<p>1. Purchaser op school land — Actual settler.—Under the constitution (art. VII, sec. 6), the actual settler on county school land is secured in his right to purchase the same in quantity not to exceed one hundred and sixty acres. The word “ settlement,” as used in that clause of the constitution, cannot be construed to limit the right of purchase to the amount actually improved, but embraces any amount of land within the limit prescribed. The applicant to buy must be himself a settler on the land to bring himself within the constitutional protection, and he cannot be an actual settler who claims only under another who had resided on the land.</p>

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

Tried below before the Hon. L. C. Alexander. On January 29, 1876, appellants sued Patterson on a note for $108.50, dated June 1, 1875, and due one day after date, payable to Hutchinson & McConnell, reciting that it was for tin work and material furnished by them on his house and homestead, and acknowledged a lien to secure the same.

Tried below before the Hon. Geo. H. Aldredge. This suit was brought October 4, 1877, by appellant Hughes against II. M. Moore, sheriff of Dallas county, and S. W. S. Duncan, to restrain the sheriff from making a deed to Dnncan for a piece of land which Duncan had bid off at a foreclosure sale made by the sheriff, and from receiving from him the amount of his bid.

Tried below before the Hon. Z. Hunt. December 15, 1876, appellants brought this suit in the district court against appellee as road overseer to restrain and enjoin him from opening up a public road through their inclosed land, in obedience to an order of the county commissioners’ court.

Tried below before the Hon. Geo. N. Aldredge. Suit brought by appellant as administrator of Adelaide Keithley, deceased, against appellees J. C. Seydell, N. R. Winniford, Wm. Fleming, S. C. Atterbury and Wm. II. Freeman, upon a promissory note. The note was alleged to have been executed and delivered to plaintiff’s intestate by the defendants and one Wm. Keithley (since deceased), and was set out in the petition as follows, to wit: “§1,000.

Error from Johnson. Tried below before the Hon. D. M. Prendergast. On January 14, 1873, Ennis and wife brought suit against Norris on a note for $180, and sought a foreclosure of a vendor’s lien upon the land described. By supplemental petition they set up another note and claimed that it was also given for the land, and pray foreclosure of the lien secured by that note.

Tried below before the Hon. J. P. Richardson. Pedro Sais brought this suit against the state of Texas, under the act of August 15, 1870, for a confirmation of title to three leagues of land situated in Starr county. He claimed as part owner and one of the heirs of Juan Jose Sais, deceased.

<p>1. Community estate — Action by heirs to recover.— Though the administrator of a deceased husband’s estate has authority to maintain a suit to recover land for purposes of administration belonging to the community, without joining therein the heirs either of the deceased husband or wife, still a judgment against him in such a suit would constitute no bar to a suit by the heirs of the mother for her community interest.</p> <p>2. Case followed.— Hodge v. Donald, 55 Tex., 344; and lull, that when a colonist in Peters’ colony settled upon land in 1848, which was appropriated afterwards by a certificate issued to him in 1850 as the head of a family, his wife having died in 1849, the land belonged to the community estate of the husband and wife.</p>

Error from Fannin. Tried below before the Hon. John C. Easton. Plaintiffs in error sued in trespass to try title to three hundred and twenty acres of land, claiming as the heirs of Thomas and Haney Jane Harrison, and by reason of their homestead rights, etc. The defendants claimed the land by and through a decree against Thomas and Francis Harrison, foreclosing a mortgage upon the land, and sheriff’s sale by virtue of that decree. The facts are disclosed in the opinion.

Tried below before the Hon. John H. Rice, special judge. The opinion states the case sufficiently to understand the principles ' announced and the facts to which they apply.

Error from Grayson. Tried below before the Hon. Joseph Bledsoe. Suit brought by S. P. Simpson, a minor, by his next friend, John L. Simpson, against the H. & T. C. R’y Co., to recover damages for injuries received by S. P. Simpson, on the 12th day of October^ 1878, in having his right leg caught and crashed in a turn-table located at Denison, in defendant’s yard at that place, and being defendant’s property.

Tried below before the Hon. D. M. Prendergast. Appellee brought this suit in trespass to try title against appellant and Samuel Truitt, to recover possession of one thousand two hundred and eighty acres of land, claiming title to and possession of the whole of the tract by virtue of a deed from O. P. Arnold, as sheriff of Johnson county, to C. Y. Kouns, dated the 6th of April, 1875, same purporting to convey the title of the plaintiffs in the case of Haltaman et al. v. Newby…

T. L. Nugent. Suit by G. Y. Coop against F. F. Parker upon two promissory notes. An attachment was issued and levied on one thousand six hundred and forty-five acres of land as the property of defendant.

Tried below before the Hon. I. B. McFarland. Suit brought by the appellee Morriss, joined by the other appellee, Mrs. Connor, against Thos. F. Hudson and others, to set aside a sheriff’s sale of land, made under a venditioni exponas based on a judgment owned by the appellees.

Tried below before the Hon. A. J. Booty. The appellee alleged in his petition that he was the owner in fee simple, on the 10th of March, 1881, of lots 3 and 4 in the Williams addition to the city of Marshall; that on that day he entered into a contract with Jones for the erection of four tenement houses on the lots, including outhouses, fences, wells, etc., for which he obligated himself to pay $4,250; afterwards, by a verbal agreement, an additional room was to be added to…

Tried below before the Hon. Peyton Edwards. Suit by appellee, in which she charged that on January 25, 1882, the plaintiff, Mrs. Blackshear, executed a deed conveying to the defendant Hardin five acres of ground, with improvements thereon, situated in Palestine, Anderson county, in part payment of a stock of goods, notes and accounts agreed to bo sold by Hardin to her brothers, J. S. & B. A. Witherspoon.

Error from Lamar. Tried below before the Hon. R. R. Gaines. This was a suit brought by D. H. Scott to recover from J. L. & M. A. Dyer, in an action of trespass to try title, a lot of land in the town of Paris, claiming it under his purchase at sheriff’s sale under a judgment and execution more particularly described hereafter, in favor of the plaintiff, against the defendants, as husband and wife. The defense was that the lot was the homestead of the defendants.

Tried below before the lion. Richard Maltbie, special judge. Baker brought this suit against Baines and wife to recover land described in the petition. Baker claimed the land by virtue of a judgment against W. C. Baines, in favor of Jno. D. Scott & Co., for $416.50, rendered April 5, 1871, and alias execution, levy, sale and sheriff’s deed, dated March 10, 1873.

Error from Collin. Tried below before the Hon. R. R. Gaines. Suit against the railroad company to recover damages for personal injuries, the killing of a horse and the destruction of a wagon.

Error from Dallas. Tried below before the Hon. Z. Hunt. Elliott brought this suit against Handel January 21, 1875, to recover on an account for $217.92 and interest, and to foreclose a material man’s lien on a house and lot in the city of Dallas. Handel answered by general demurrer and general denial, and other pleas not necessary to notice.

Tried below before the Hon. R. H. Morris, special judge. Suit to try right of property to some cotton, which was originally tried before a justice of the peace, appealed to the county court, and from there found its way into the district court by reason of the jurisdiction of the county court being diminished by act of the legislature.

Tried below before the Hon. G. H. Noonan. August 4, 1879, Bremer sued Case, Hardy and Deifenbaugh, in trespass to try title, in the district court of Bexar county, to recover three hundred and twenty acres of land originally granted to J. De Cordova.

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

Tried below before the Hon. Joseph Bledsoe. On July 11, 1879, appellant filed this suit against appellees in the district court of Grayson count)'-, to recover the value of certain goods alleged to have been assigned to him by Wilson & Simpson for the benefit of their creditors, and taken from him by virtue of an attachment issued in a suit by P. J. Willis & Bro. against Wilson & Simpson after the execution of the deed of assignment.

Tried below before the Hon. John C. Robertson. Suit in the district court of Van Zandt county against appellants, alleging the residence of Hyman Blum to be in New York, and the other defendants in Galveston county and Van Zandt county, Texas.

<p>1. Action by tenant in common.—The right of one tenant in common to recover the entire tract of land from one having no title was not affected by the Revised Statutes, but the same exists as recognized in Croft v. Rains, 10 Tex., 523, and Watrous v. McGrew, 16 Tex., 510.</p> <p>2. Good faith—Improvements.— One who purchases land from another, whom he honestly believes to be the grantee of the same, he having the same name with the grantee, and, having paid for and entered upon the land, makes, permanent improvements thereon, ignorant that some other person has the better right, is entitled to recover from the true owner, under the terms of the statute, compensation for his improvements.</p> <p>3. New trial.— See opinion for a case in which the appellant was entitled to a new trial because of the absence of facts to sustain the verdict.</p>

Tried below before the Hon. A. J. Hood. Suit by Susan White and others against Mary T. Mitchell, as administratrix of the estate of Samuel Mitchell, to recover an interest in land and for partition. Mary T. Mitchell claimed homestead rights as surviving widow, etc. The case will be understood from the opinion and statement in syllabus.

<p>Error from Hamilton. Tried below before the Hon. T. L. Nugent.</p>

<p>Appeal from Guadalupe. Tried below before the Hon. Everett Lewis.</p> <p>The opinion states the case.</p>

Tried below before the Hon. W. A. Blackburn. Suit by the appellee against appellants for damages for the seizure and conversion of a stock of liquors valued at $1,005.96, and claimed by defendant as his property. The petition contained allegations of malice on the part of the defendants in the seizure and conversion of the property, and prayed for actual and exemplary damages amounting to $3,125.69.

Error from Karnes. Tried below before the Hon. H. Clay Pleasants. Bishop brought this suit against Rush and two others for contribution on an administrator’s bond, upon which all were sureties, alleging the execution of the bond, death and insolvency of the principal.

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

<p>1. Charge of the court.—Where the pleading alleged, and evidence was introduced, to the effect that the railway company had agreed to stop its train at a particular point, viz., a section-house, and then refused so to do, in an action for damages against the company it was error in the court to charge that, ‘ ‘ under the allegations and proof, it is immaterial to the plaintiff’s right to recover, whether the train was stopped at the section-house or not, and in making up your verdict you will not consider that question.”</p> <p>3. Same.— Such a charge is also, to some extent, one upon the weight of evidence.</p> <p>3. Same.—A charge of the court as follows: that as soon as “the deceased alighted in safety from the car in which he and his wife (the plaintiff) were carried, then the relation ceased, and from that time the defendants owed them no duty as passengers,” is too strong and unqualified in its character.</p> <p>4. Carrier and passenger.— The relation of carrier and passenger does not necessarily cease where the latter alighted from the car and still aids the carrier’s servants in removing his baggage from the car; nor does the act of so aiding make him a servant of the carrier.</p>

<p>1. Pleading in trespass to try title.—When the plea “not guilty” and a special plea (other than limitation) are filed, the plaintiff cannot himself rebut evidence admitted under the special plea, unless he has made allegations in pleading under which it would in other cases be admissible. In avoidance of evidence admissible under the general issue, he can submit testimony without such allegations.</p> <p>2. Same.— In trespass to try title, defendants, after pleading “ not guilty,” pleaded specially that the sheriff’s deed under which plaintiff claimed was void. On the trial the defendants showed a chain of title from thfe government to themselves. Held, that the plaintiff could show fraud in the acquisition of defendants’ apparent title, and this though plaintiff had not set up the fraud in his pleadings; the defendant having pleaded no tiling to render it necessary.</p>

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

<p>Appeal from Brown. Tried below before the Hon. A. R. Col-man, special judge.</p> <p>Pugh brought this action of trespass to try title against Wren and Lee. On the 30th day of August, 1878, Pugh and Lee exchanged lands, each executing to the other his deed, containing stipulations as follows: “ And it is agreed and understood that if said J. r. Pugh, his heirs and assigns, should be ousted from possession of said land, above described, then this deed and everything contained in it shall be utterly void and of none effect, and then and thenceforth it shall be lawful for the party or parties so ousted or evicted, title, his or their said former messuage or tenements and premises, with all and singular the appurtenances, to retain, and the same to have, repossess and enjoy as his or their former estate, anything herein to the contrary.” The stipulations were alike in the two deeds, except the names of the grantor and grantee were reversed. The covenant of general warranty was given after the above stipulation in said deeds. Both deeds bore date August 30, 1878, and filed for record same day. One Henry Urquhart filed suit in the United States circuit court, at Austin, on the 29th day of August, 1878, against Lee and Gilliland, to recover a tract of land including that conveyed by Lee to Pugh. This suit resulted in a judgment against Lee and Gilliland for the land on the 10th day of January, 1879, under which Pugh was evicted by the United States marshal on the 29th day of September, 1879.</p> <p>On the 9th day of August, 1879, Lee conveyed to Mays, by warranty deed, the land conveyed to him by Pugh.</p> <p>Mays intervened in this suit, after Lee and Wren had filed disclaimer, and in his answer set up his purchase from Lee, and asserted Pugh’s covenant of warranty as an estoppel, and asserted title by virtue thereof, by way of reconvention.</p> <p>The case was tried without a jury, and judgment rendered for Mays for the land, from which this appeal was taken.</p>

Tried below before the Hon. A. J. Booty. A. L. De Milley sued the Tex. & Pac. R’y Co. for personal injuries alleged to have been sustained while he was a passenger on its road on November 6, 1880. He charges that the injury was the result of the gross negligence of the company in permitting its road at the point of the accident to remain out of repair for the space of three months. The accident was caused by a broken rail.

<p>1. Negligence — Railway company, duty op as to cattle-guards.— As a general rule, it is the duty of a party to protect himself from the injurious consequences of the wrongful acts of another, if he can do so by ordinary effort and care, or at a moderate expense, for which he may charge the wrong-doer; and where by the use of such remedies he can prevent loss, he can only recover for such loss as could not be thus prevented.</p> <p>3. Same.— But to this rule there are exceptions; as where a railway company, by the construction of defective cattle-guards, jeopardizes the growing crops of a farmer, there is no obligation on the latter, who is not presumed to be skilled in such work, to assume the risk of having the defect corrected, or of exercising his judgment to select some one skilled in such work to do it for him. In such case, the farmer through whose inclosure the road runs may leave the whole matter of constructing and repairing stock-guards in the hands of the company, which has impliedly contracted to perform the work, and he is not chargeable with contributory negligence if damage shall result from his not attempting to repair the defect.</p> <p>3. Same — Statute construed.— The statute (R. S., 4343) which authorizes the owner of the land to construct or repair cattle-guards is not obligatory, but permissive only, and does not qualify or impair the obligation imposed on the railway company, whose road-bed crosses the inclosed lands of another, to construct and keep cattle-guards in proper repair.</p> <p>4. Distinguished. — This case distinguished from Loker v. Damon, 17 Pick., 288.</p> <p>6. Measure of damages.— The proper measure of damages for destruction of growing crops is their value at the time of their destruction. Following Sabine & E. T. R’y Co. v. Joachimi, 58 Tex., 456.</p> <p>6. Case discussed.— Ward v. Paducah R. R. Co., 4 Fed. Reporter, 863, discussed and distinguished from this case.</p>

Tried below before the Hon. John C. Robertson. This suit was brought by Joseph Williams and his wife against the defendant company, alleging in substance that on the 17th of December, 1880, their son George, a child about eight years old, left his home without their knowledge, and engaged in playing on the platform at defendant’s depot; that the defendant company, knowing this, continued to move the cars by the platform, until the child, in attempting to leap from the…

Tried below before the Hon. B. T. Estes. B. B. Webster, by his father as next friend, brought this action against M. Heldt for malicious prosecution, among other things alleging that, in connection with William Braxton and Jeff Benjamin, he-was charged by appellant with fraudulently and wrongfully appropriating with Heldt’s consent eight hundred pounds of cotton seed of the value of $24, the property of Heldt.

<p>Appeal from. Cass. Tried below before the Hon. B. T. Estes.</p> <p>The opinion states the necessary facts in the case.</p>

Tried below before the Hon. B. T. Estes. H. S. Matthews instituted this suit on the 10th of February, 1881, against the appellant, to recover damages for the construction of the railway across the H. S. Janes survey of land, situated in Bowie county. First, for the value of the land taken; second, for the value of the timber cut down. Trial and verdict for the plaintiff for the sum of $500.

Tried below before the Hon. A. S. Broaddus. Appellees brought suit, February 9, 1880, against John T. Rowe, F. W. McGuire and I. N. Hale, alleging that the defendant Rowe, on the 14th day of July, 1874, executed to the order of appellees his promissory note for $150, payable in six months, with ten per cent, interest from date. That the consideration of the note was part of the purchase money of lot 6, block 12, in the town of Giddings, Texas.

Tried below before the Hon. L. W. Moore. Suit for. partition, filed February 28, 1879, against appellant by appellee S. H. Burnett and his sister, Sarah E. Owens, joined by her husband, James Owens.

Tried below before the Hon. Everett Lewis. Trespass to try title brought by Sarah E. and O. E. Adams against Basil Hayden, L. Hayden, James W. Hayden, 0. B. Palmer and G-. P. Palmer, in the district court of Wilson county, for the recovery of six hundred and forty acres of land lying in that county. The defendants pleaded “not guilty,” and the statutes of limitations of three, five and ten years, with a suggestion of good faith and valuable improvements.

Tried below before the Hon. A. J. Hood. The object sought to be accomplished by the suit was to have a certain conveyance made by one Charles H. Shirly to appellant declared void, said conveyance dated July 21, 1880, and conveying the land described in the petition to appellant, asserting that said conveyance was made to hinder, delay and defraud the creditors of the said Shirly, and especially the appellant, and that appellee, at and before the time of the conveyance, knew…

Tried below before the Hon. Geo. H. Aldredge. Held: and that the plaintiff Martha H. Davenport, as the widow of said Silas D. Davenport, receive such share of his estate as she is entitled to under the laws of descent and distribution of this state, or such share .as she would be entitled to in the case of his intestacy.” From this judgment defendants appealed.

<p>Error from Franklin. Tried below before the Hon. B. T. Estes.</p>

Tried below before the Hon. B. T. Estes. On the 31st of December, 1881, Mundell, Munzesheimer & Co. filed their petition in the district court of Cass county, upon an open account against John F. Brothers, in which they claimed that there was due them the sum of $615.63, for goods sold to defendant.

Tried below before the Hon. Everett Lewis. Lewis sued Wallace on the 9th day of February, 1880, to recover certain town lots, and to have annulled and vacated a deed made by Lewis to Wallace June 23, 1879, conveying the property. He alleged that Lewis had been arrested and committed by a justice of the peace on a charge of felony. His bond was fixed at $500.

Tried below before the Hon. T. L. Nugent. Appellees instituted this suit against appellant, alleging in substance that the commissioners’ court of the county, on the 16th day of December, 1876, made an order employing and contracting with S. P. Haynes, Wm.

Tried below before the Hon. R. R. Gaines. March 24, 1857, Lovejoy sued William Davis for a specific enforcement of a bond for title, made by Davis to Edward Roberts, and dated March 21, 1849, which obligated Davis to make title to sixty acres of land therein described as soon as a patent issued to Davis. Lovejoy claimed to have purchased all Roberts’ interest in the land, soon after its date, and that the patent had issued to Davis.

Tried below before the Hon. Joseph Bledsoe. Trespass to try title against appellants and Amanda Gearheart to recover the land described in the petition. Appellants and Amanda Gearheart answered by general demurrer and plea of not guilty. Appellees claimed the land by virtue of a patent to the heirs of John S. Thorn, deceased, and deed from David F. and Samuel D. Thorn, as the only heirs of John S. Thorn, to Addison Frazer, from whom they inherited the land.

<p>1. Vendor and vendee.— The right of a vendor to subject the land to the payment of purchase money in the hands of a subsequent vendee’is not affected by the fact that a lien is not reserved in the deed, if it recites the fact that notes had been given for the purchase money. Peters v. Clements, 53 Tex., 140, approved.</p> <p>3. Pleading—New cause of action.—A change in the relief sought, or the addition of a prayer for farther or alternative relief, does not amount to the setting up of a new. cause of action.</p> <p>3. Limitation.—The holder of purchase money notes, to secure which a lien was reserved in the deed, brought suit thereon in 1873, the notes having-been executed before 1861 and maturing during the suspension of the statute of limitations in 1863. No limitation began to run against the holder until March 30, 1870, and it required the lapse of four years from that time to bar an action by the holder to foreclose his lien on the iand. The holder of the notes could sue both the maker and the vendee of the maker in one suit, or bring a separate suit against the subsequent vendee, within the same period of time, to subject the land to the iiayment of nodes given by his vendor.</p> <p>4. Evidence.— The date of the issuance of an execution may be shown by the records of the clerk’s office from which it issued, and any mistake in such date may be shown by the clerk.</p> <p>5. Same.— The contents of an execution may be shown by any one who can testify either from recollection or from an examined copy.</p>

Tried below before the Hon. John C. Robertson. Trespass to try title, brought by J. H. Jarrell, against the Texas & St. Louis Railway Company, to recover a tract of land described in his petition, and $500 damages. Plaintiff alleged that the entry of defendant upon the land was wrongful and without his consent.

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

Tried below before the Hon. B. T. Estes. Suit brought by appellees in justice’s court, on the 24th of September, 1881, against appellants; to recover the sum of $200, the alleged value of certain timber charged to have been cut and carried off. Service was had upon appellant Joe Hedges and upon W. J. Williams & Sons, by service upon W. J. Williams. On November 3, 1881, the case was tried by the justice. Judgment for appellees against appellants for the sum of $140.

Tried below before the Hon. L. D. Bradley. Suit for trial of right of property under the statute. The appellants claimed the right of stoppage in transitu of goods, and asserted their right by filing the claimant’s oath and bond. Issues were made up under the direction of the court and filed. The cause was tried before a jury, and resulted in a verdict for the plaintiffs; judgment thereon.

Tried below before the Hon. J. A. Carroll. Trespass to try title, brought in July, 1879, by appellants in right of inheritance as heirs of J. B. Floyd, deceased, for one hundred and sixty acres of land in Wise county, Texas, patented to said J. B. Floyd, January 13, 1883.

<p>1. Pre-emption.— Ho rights can be acquired to laud, under the location of a land certificate upon land occupied by one as an actual settler under pre-emption laws, before the expiration of the twelve months within which the settler was required to make return of his field notes to the general land office.</p> <p>3. Pre-emptor—Statute construed.—An occupant of public land claiming as a pre-emptor caused the land to be surveyed five months after the passage of the act of May 36, 1873, concerning pre-emptions, and made the required affidavit of occupancy, etc., stating that his occupancy began under the previous act of 1870. Held,</p> <p>(1) The occupant claiming pre-emption rights came within the provisions of the act of May 36, 1873, as “a person who has occupied a portion of the public domain as a homestead under previous law,” and was entitled to have the land surveyed and the field notes thereof returned to the general land office within twelve months from the passage of that act.</p> <p>(3) His possession and occupancy were notice to one filing a certificate thereon and procuring a survey in September, 1873, and no rights could be obtained as against the pre-emptor, under a patent issued on such certificate.</p> <p>(3) The law of 1873 extended the benefit of occupancy to the settler’s right, so as to waive his default in not having the survey made within the time prescribed by the previous law under which the settlement was made.</p> <p>(4) This case distinguished from Teel v. Huffman, 31 Tex., 781.</p> <p>3, Damages.— The pecuniary loss sustained in defending a suit involving title to land cannot be considered as damages which a party may recover; and when this is the only basis for actual damages there can be no recovery for exemplary damages.</p>

Tried below before the Hon. R. R. Gaines. Trespass to try title by Mrs. Mattie Henderson, joined by her husband, Travis Henderson, and by Travis Henderson as guardian for the minor Ella Thomas, to recover from one of the appellants, Thomas J. Towery, a lot of ground in the town of Paris, Lamar county. The plaintiffs gave bond and sequestered the property.

Tried below before the Hon. L. D. Bradley. On the 22d of May, 1879, the appellee, S. A. Pace, recovered a judgment in the justice’s court against P. M. Holbrook for $78.77, and execution thereon issued on the 4th of September, 1879, and had a levy made on two bales of cotton as the property of Holbrook, on the 25th of September, 1879.

Tried below before the Hon. Green J. Clark. Tibbles brought trespass to try title against James H. Starr and several other defendants, October 19, 1880, to recover an undivided half interest of a league of land. He also prayed for partition of the land between himself and the defendants.

<p>1. Negotiable note—Collateral security.— The transfer of a negotiable note as a collateral security for a pre-existing debt is in due course of trade and for a valuable consideration. Following Liddell v. Crain, 53 Tex., 555. The case is stronger for holding the assignee a bona fide purchaser, when, in addition to the pre-existing debt, money is advanced by him for the benefit of the apparent holder of the note.</p> <p>2. Notice—Principal and agent.— Though a principal is chargeable with notice of all facts coming to the agent’s knowledge while acting within the scope of his agency, lie is not chargeable with notice of such facts if they come to his agent's knowledge while he is engaged in a transaction with which the principal has no concern.</p>

Tried below before the Hon. B. T. Estes, Information in the nature of a quo warranto, instituted by virtue of the act of 1879 (see appendix R. S., p. 45), and to obtain a judgment of dissolution as to a private corporation. R. S., art. 604. The information was filed on leave of the court, settting up: 1. Long continued non-user of the corporate franchises, to wit, since June, A. D. 1876. 2.

<p>1. Notice — Possession.— The sole office which possession performs in the matter of notice is, to put a person desiring to purchase upon inquiry, and it has no effect in determining what the inquiry shall be or of whom it shall be made.</p> <p>3. Notice.— A purchaser from a vendee whose vendor remains in. possession is not bound to inquire further as to the title, when he finds on record in the county a deed from such vendor conveying title, properly proved up and registered. To hold otherwise would be to strike at the very foundation of the policy on which registration laws rest. When inquiry as to title is prosecuted to the highest source which affords evidence of the right, there is no obligation to explore inferior and less reliable channels of information. Mullin’s Guardian v. Wimberly, 50 Tex., 457, discussed and distinguished. Van Keuren v. Central R. R. Co., 9 Vroom, 167; Grotons Savings Bank v. Batty, 30 N. J. Eq., 133; N. Y. Life Ins. Co. v. Cutler, 3 Sandf. Ch., 179; Cook v. Travis, 20 N. Y., 400; Bloomer v. Henderson, 8 Mich., 395; Scott v. Gallaher, 14 S. & R., 333, cited and approved.</p> <p>3. Chabqe op ooübt.— See opinion for charge of court held erroneous as applied to the case.</p> <p>4. Lien — Homestead.—A lien on a homestead, existing prior to the adoption of the present state constitution, cannot be divested under its operation, and one who received an absolute deed from the owner of the homestead as security for advancing money to discharge such a lien would be subrogated to the rights of the original lien holder against the homestead.</p>

Tried below before the Hon. L. D. Bradley. Trespass to try title brought in the district court of Navarro county by the appellant against the appellees, John P. Whatley and W. O. McClurg, and P. M. Beal. Pending the suit Beal died, -and his administratrix, Mrs. W. Beal, was made party defendant. The suit was for the recovery of about nine hundred acres of land in Navarro county, on the Elijah Powers league.

Tried below before the Hon. John C. Robertson. Suit by appellee alleging that on the 6th day of April, 1881, the plaintiff, E. A. Copeland, being a woman fifty-four years of age, and of strong bodily health and vigor, applied, as a passengér for hire, for transportation over defendant’s railroad at a water tank and section house about two miles north from Lindale, in Smith county, Texas, the water tank and section house being a place where defendant usually received…

<p>1, Parties — Husband and wife.—A mere separation of the husband and wife, and his refusal to join her in the action, is not sufficient to authorize the wife to prosecute alone a suit to recover damages for an assault and battery committed upon her during coverture.</p> <p>2. Separate property.—No property acquired by the wife during coverture becomes her separate estate except such as is derived by gift, devise or descent; all acquired in any other manner is community property.</p> <p>8. Parties.—The exceptional cases in which the wife has been allowed to maintain an action for the community estate have been where she had been abandoned by her husband and was destitute of the means of support, unless she resorted to the community property.</p>

Tried below before the Hon. L. D. Bradley. Suit in trespass to try title by the heirs of William H. and Margaret W. Harris against J. M. Eliot et al., for the recovery of the John Taylor headright league of land lying in that county. On the 12th day of October following, Israel Griffith filed an application to be made a party defendant, and setting up title in himself to the land.

Tried below before the Hon. Geo. N. Aldredge. Appellants brought this suit to enjoin a writ of possession issued upon a judgment of the district court of Dallas county rendered in favor of Elliott, and against A. Coiret, for certain lots in the city of Dallas.

<p>1. Legal title — Purchaser from heir.— A bond for title, in which the obligor agrees to convey one-half of designated land to the obligee when the latter shall obtain a patent upon a certificate located on the land, does not pass title to the quantity agreed to be conveyed, even though the obligee has paid the full value of the certificate. The legal title remains in the obligor, and, descending to the heir, passes by deed to a purchaser who had no notice of the existence of the bond.</p> <p>2. Same.— Titles, when cast by descent, are not, as between father and child, different titles, but the title when obtained by inheritance, when a legal title, is the apparent equitable title,' upon which all persons may rely, in the absence of notice, against all outstanding legal titles or equities, subject to the registration laws. On this point Rodgers v. Burchard, 84 Tex., 451, overruled by Taylor v. Harrison, 47 Tex., 459.</p> <p>3. Stale demand.— No recovery can be had on a bond executed in 1852 for the conveyance of land, on which suit was first brought twenty-eight years afterwards, in the absence of facts explaining the delay. The demand is stale.</p>

Error from Panola. Tried below before the Hon. A. J. Booty. M. L. Crenshaw sued the appellants Guice & Mercer, averring that on the 26th day of March, 1881, plaintiff, at the request of the defendants, contracted with them to deliver to them at their sawmill, situated south of Sunny Point in Panola county, two thousand saw logs, to be of the average length of sixteen feet, and to square not less than ten inches; the logs to be delivered by the plaintiff at defendants’ mill…

Error from Smith. Tried below before the Hon. John. C. Bob-er tson. Suit was instituted by plaintiff in error against defendant in error upon a promissory note for $1,180, due the 25th day of December, 1873, and to foreclose vendors lien, less credits indorsed, and upon a note for $110. The defendant .in error set up several sums as payments, alleging them to have been paid upon usurious interest notes given by him to plaintiff in error.

Tried below before the Hon. D. M. Prendergast. On December 30, 1861, Thos. E. King, as administrator of John Chamblee, deceased, brought this suit against the unknown heirs of Jonathan Wallis, deceased.

Tried below before the Hon. Jos. Bledsoe. Appellant having been appointed guardian ad litem of the minor heir of S. H. Toler, deceased, by the district court of Grayson county, for the purpose of instituting this suit, filed his petition in the ordinary form of an action of trespass to try title on the 15th day of February, 1879, against the defendants, to recover the land in controversy, and for the cancellation of their deeds, claiming that the defendants, except W. S.…

<p>1. Statutes construed — Suit to correct authentication of a deed.— Art-4858 of the Revised Statutes, which authorizes any party interested to bring an action in the district court to correct the defective certificate to the acknowledgment of an instrument, which was in fact properly acknowledged, applies as well to deeds as to other instruments properly executed and acknowledged by married women but defectively certified to.</p> <p>2. Same.—That provision of the law does not create a right, but permits the judgment of a court to be substituted for the defective certificate of the officer, which should have been the evidence of it, and it cannot be said to operate retrospectively.</p> <p>3. Same.— That provision of the statute was intended to have a prospective operation, and that it may operate upon causes of action based upon past contracts does not change its character.</p> <p>4. Same.—Art. 4353, B. S., simply provides a new rule of evidence and a remedy by which it may be shown that a contract was really made in accordance with law.</p> <p>5. Separate acknowledgment.— Though the statute must be complied with in order to pass title to a married woman’s separate property, it does not necessarily follow that an instrument willingly executed by her and actually acknowledged as required by law, is absolutely void, simply because of the officer’s failure to make the proper certificate which the facts'authorized, and which the law required him to make.</p> <p>6. Case reviewed.— Dalton v. Rust reviewed, and the doctrine announced, that though an instrument aeknowleged by a married woman may be defectively certified to, it may, in connection with other facts, become the basis of a right which a court of equity will protect.</p> <p>7. Constitution.—The constitution, art. III, sec. 56, recognizes the power in the legislature to give effect to informal and invalid wills or deeds, and restricts its power only in one respect.</p> <p>8. Cases reviewed.— Chesnut v. Shane, 16 Ohio, 599; Watson v. Bailey, 1 Binney, 476; Webb v. Den, 17 Howard, 577; Deutzel v. Waldic, 30 Cal., 142, and other cases, reviewed and discussed.</p> <p>9. Statute construed.— Art. 4353 of the Bevised Statutes never intended to permit the validating of conveyances when in fact the law had not been complied with in taking the acknowledgment, but gives only a new remedy for ascertaining the fact that the acknowledgment was in fact properly made.</p>

Tried below before the Hon. R. R. Gaines. Appellees brought this suit against the firm of J. & D. Caviness and J. J. Cothran, in 1875, to recover on an account for goods sold and delivered by appellees to a certain firm alleged to have been composed of J. & D. Caviness and (appellant) J. J. Cothran.

Tried below before the Hon. L. D. Bradley. During the summer of 1881, E. M. Ewing, a merchant, then residing in Blooming Grove, Navarro county, Texas, fifteen miles west of Corsicana, was approached by an agent of appellees to sell him goods, to be delivered in the future. The goods were bought on time.

<p>Appeal from Navarro. Tried below before the Hon. L. D. Bradley.</p> <p>The opinion states the case.</p>

<p>1. Pleading—Referee.— A charge that a referee refused to’hear evidence offered by one of the parties, without stating the materiality of the evidence, and what it was, is bad on exception. A report made by a referee stands upon the same footing as the verdict of a jury.</p> <p>2. Pleading.—Where a recovery of land is based on the report of a referee, to whom the parties had agreed to submit the question of the true location of a line, with a stipulation that the referee should examine that line, an answer charging that the referee did not examine the line is good on demurrer ; nor is the fact material that the report of the referee shows that he made the examination as required.</p> <p>3. Objections.— An objection to the report of a referee that the referee could only act in the event another first cliosen declined to act, and that his report or award could not be received until it was shown that the one first selected declined to act, comes too late when made for the first time on appeal.</p>

<p>1. Appropriation op payments.— If a creditor having several debts against a debtor receive money with instructions to appropriate it to one of them, it must be thus appropriated, and its appropriation being once thus directed, cannot be afterwards changed by the creditor without the debtor’s assent.</p> <p>2. Same.— The mere execution and delivery after payment of a receipt, showing the appropriation of the payment otherwise than as directed when payment was made, imposes no obligation on the debtor to have the receipt corrected, and works no estoppel on the debtor’s right to enforce the appropriation of the payment in the manner first directed by him.</p>

<p>Appeal from Kaufman. Tried below before Hon. J. E. Dillard, special judge.</p>

Tried below before the Hon. T. J. McCord. The appellant instituted this suit in the district court of Vanzandt county for the partition of certain real and personal property alleged to be owned in common by the intestate of appellant and defendants in this suit.

<p>Appeal from Kauffman. Tried below before the lion. Green J. Clark.</p>

Tried below before the Hon. L. D. Bradley. On the 6th day of September, 1880, W. L. Gilleland, a brakeman in the employ of the H. & T. C. R’y Co., was one of a crew — Jno.

Error from Bexar. Tried below before the Hon. George H. ¡Noonan. Suit by the plaintiffs in error for the purpose of trying the title to some thirty-eight town lots situated in the city of San Antonio.

Tried below before the Hon. J. R. Fleming. Schneider & Davis brought suit in the county court of Dallas county against Stephens & Johnson, a mercantile firm doing business in Comanche, on a note for $989, payable at Dallas, and at the same time sued out a writ of attachment, which was levied upon a stock of merchandise then in the possession of appellee, but which had formerly belonged to the firm of Stephens & Johnson.

Tried below before the Hon. W. A. Blackburn. Thomas W. Evans, Richard C. Gardner, Wm. R. Hutchinson and Wm. B. Milton, composing the firm of Evans, Gardner & Co., of the city and state of New York, as plaintiffs, sued Mrs. M. A. Taylor, surviving wife of D. W. Taylor, and W. W. Smith and Tilford Bean, sureties on her bond as the community survivor. I). W. Taylor had been a merchant in Lampasas.

Tried below before the Hon. Jo Abbott. The following statement, adopted by the commission of appeals, is made: Suit by appellees, Florence L. Helsley and her husband, James M. Helsley, against Lydia E. W. Moss and her husband, James S. Moss, and Mary, or Mollie, Pierce, a minor, alleging that plaintiff, Florence L. Helsley, and defendant, Mary Pierce, were the children of George M. Pierce, deceased, and his wife, the defendant, Lydia E. W. Pierce (now Moss); that George M.…

Tried below before the Hon. C. B. Kilgore, special judge. A detailed statement of the lengthy pleadings would not make more plain the principles decided in the opinion. The verdict from which the appeal was taken was for $10,000.

Tried below before the Hon. D. P. Marr. Appellant brought suit against appellee to recover the land described in his petition, claiming title as follows: By virtue of an application made by George H. Mills for the purchase of the land, the same being school section Ho. 12, surveyed by virtue of certificate No. 21-312, issued to the L. A. & M. G. R R. Co., situated in La Salle county, and the sale of which was provided for by act of April, 1881, the payment in due time to the…

Tried below before the Hon. A. S. Walker. On December 2, 1881, appellant brought suit against Creary and his sureties on his official bond as sheriff, to recover 010,000 damages for false imprisonment, etc. Appellees answered by general and special exceptions, and general denial. On the trial the special exceptions were sustained to the petition, but as the defects were cured by trial amendment that ruling will not be considered.

Tried below before the Hon. J. A. Carroll. Plaintiffs Rutherford et al. brought this action in trespass to try title. Defendant, by answer filed August 5, 1879, pleaded in abatement, first, that plaintiffs claimed by distinct titles; second, that one of the plaintiffs had died during the pendency of the suit. They excepted to plaintiffs’ petition, and pleaded not guilty.

Tried below before the Hon. B. T. Estes. Suit in the district court of Camp county against appellant for a divorce from the bands of matrimony and for the custody of' a child, born of the marriage with appellant. Appellee alleged her residence and citizenship in Camp county for more than six months next preceding the institution of the suit, and that defendant was a resident citizen of the city, county and state of New York.

Tried below before the Hon. W. A. Blackburn. Motion filed December 1, 1880, by which Warren sought to recover of Smith and one William Hunt the sum of $2,976, claimed to be the difference between the amount for which they bid off a certain tract of land of Warren’s at sheriff’s sale, and which bid they failed to make good, by not complying with the terms of sale, and the amount for which the land was sold by the sheriff on re-advertisement and sale.

<p>1. Separate acknowledgment.—It is not the duty of one purchasing the homestead of others to see to it that the notary does his duty in making a privy examination of the wife when she signs the deed; all that the law requires of the purchaser is to act fairly, and not avail himself knowingly of the fraudulent conduct of others.</p> <p>3. Husband and wipe — Same.— The husband having control of the community and separate property of the wife, one negotiating for the purchase of either is not bound to contract with the wife; and when, on purchasing, he is presented with a deed signed by husband and wife, and duly acknowledged before the proper officer, he has a right to believe that the wife has freely and with full knowledge given her consent to the same, and is not affected by the fraud of others in procuring her signature, of which he has no knowledge.</p> <p>3. Same.— Though if a fraud be perpetrated in securing her signature, and the purchaser, though ignorant of its character, is wilfully blind, that he may profit by it, he will be regarded as having perpetrated it, so far as it affects the validity of the deed.</p> <p>4. Deed — Mortgage — Evidence.— It was error to instruct a jury that they could not find a deed absolute on its face to be a mortgage, unless the fact that it was so intended should be established by two witnesses, or by one witness and strong corroborating circumstances. This rule is applicable only to cases in which it is sought to establish a trust by proving the declarations of a deceased trustee, or when the trustee is testifying to the trust in his own interest. Distinguished from Moreland v. Barnhart, 44 Tex., 275; and Peters v. Clements, 46 Tex., 114, followed.</p>

Tried below before the Hon. Spencer Ford. Love and others brought this suit against L. D. Bradley for an undivided half of two thousand three hundred and one acres of land, and for partition, alleging a common source of title in James Dunn; that James Dunn deeded the land to D. H. Love and Mary Love, his wife, on August 31, 1850, reciting in said deed a consideration of $1,000; that Dunn was the father of Mary Love; that no consideration in fact was paid to Dunn for the…

<p>1. Tax deed.—In a proceeding to.remove cloud from title, caused by one claiming under a tax deed, it was found that while the land had been assessed' in the name of the true owner, D. B. Wright, it was at tax sale cried off in the name of T. B. Wright; the deed described it as the property of T. B. Wright, and the judge, in his conclusions of fact, found that in this there was no mistake. Held, that, in the absence from the record of all evidence, the supreme court cannot say with certainty that a judgment for the plaintiff, removing cloud from title, was erroneous.</p>

Tried below before the Hon. John H. Rice, special judge. This action was brought by appellee for damages caused by the falling of a tree across appellant’s road-bed, whereby the engine of appellant was in the night time thrown from the track, and appellee’s leg broken, for which there was a verdict and judgment for appellee for $650.

<p>Appeal from Denton. Tried below before the Hon. C. C. Potter.</p> <p>Suit by appellants in trespass to try title against appellees, claiming the land through a judgment rendered in their favor and against T. W. and C. C. Daugherty, in the district court of Galveston county, October 10, 1879, execution thereon, and sheriff’s sale and deed. Paschal claimed the land by virtue of a conveyance from T. W. and C. C. Daugherty. Verdict and judgment for appellees.</p> <p>The controversy grew 'out of what is held to have been an assignment to Paschal for the purpose of paying the debts of T. W. Daugherty.</p> <p>Appellees introduced the same chain of title as that introduced by the appellants from the state to T. W. and 0. 0. Daugherty, and they further introduced a deed from T. W. and C. 0. Daugherty to appellee Paschal.</p> <p>B. F. Paschal, a witness for appellant, stated that the last deed mentioned was without consideration, “ and that he had, since its date, paid $1,500 to their creditors according to the agreement he signed that night.” Upon cross-examination witness was asked to state what the consideration of that deed was, which was objected to by appellants, if there was any writing or memorandum in writing explaining the same. The witness stated that there was a written instrument executed by him at the time, and a part of the same transaction. The witness, over objection, was permitted to state substantially the contents of the written instrument.</p> <p>Appellants proved the indebtedness of 0. 0. and T. W. Daugherty antecedent to the date of the deed to Paschal, to the amount of about $2,000, and that it was the same debt which had been reduced to judgment in the Galveston district court. Appellees then offered an instrument signed by B. F. Paschal, which recited that Paschal, in consideration of $5,000, paid in property as follows: Two tracts of land of one hundred and sixty acres each, one store-house on one half lot in Denton, and a stock of merchandise, all appearing in a deed for two tracts of land from O. 0. Daugherty to said Paschal— had made and entered into an agreement with T. W. "Daugherty as follows: He, Paschal (said T. W. Daugherty being in failing circumstances and being desirous of securing certain of his' creditors, shown by a schedule attached), agreed to sell and dispose of the property on the best terms he could, stipulating that he was only to be responsible for fair and honest dealing, and reserving the right to exercise his best judgment as to terms, time and conditions of sale; and to dispose of the proceeds as follows: First, to retain a compensation to himself not to exceed ten per cent. Second, to retain a necessary amount for costs and attorneys’ fees to defend the interest of the persons named in said schedule. Third, to pay out the remainder pro rata to the persons named in said schedule, and if,. after the claims of the persons named in said schedule had been paid there was a remainder, to pay the same to any creditor of said T. W. Daugherty which he (Paschal) might elect.</p>

Tried below before the Hon. A. J. Booty. Plaintiff Snider sued some two hundred persons in trespass to try title, charging them as joint trespassers on his land. The suit was filed in Gregg county, but afterwards removed to Harrison. The two defendants, O. H. Methvin, Sr., and O. H. Methvin, Jr., answered through the same attorney and joined in a plea of not guilty and disclaimer, and each for himself set out by metes and bounds the portion of land to which he laid claim.

Tried below before the lion. A. J. Hood. Suit was brought by the appellees on the 15th day of June, 1877, for an undivided half of one hundred and seventy acres of land, part of the Solomon Davis six hundred and forty acre survey.

Error from Hopkins. Tried below before the Hon. Green J. Clark. This case was last before this court on an appeal by the present defendant in error, and was reversed.

Error from Lamar. Tried below before the Hon. R. R. Gaines. The opinion makes plain the points decided without a statement of the case.

Error from Grayson. Tried below before the Hon. Joseph Bledsoe. E. J. Pinto brought this suit ¡November 26,1878, original petition filed January 4,1878, against the Houston & Texas Central Railway Company to recover damages for personal injuries sustained by him on the 24th day of January, 1877, on the Denison yard, in Grayson county, while in the employ of defendant as brakeman and switch-man for night work.

Tried below before the Hon. Geo. H. Noonan. Appellants, as the assignees of Edmund J. Davis, brought this suit against the city of Laredo, C. M. Macdonnel and Raymond Martin.

Tried below before the Hon. A. J. Booty. Suit brought by Hooker against Williamson to recover the amount awarded to him by arbitrators on a common law award. Williamson, bjr his answer, asserted various objections and reconvened, setting up all the matters of difference between them growing out of the purchase and running of a farm together as partners.

Tried below before Jno. H. Rice, Esq., special judge. Edward H. Belcher and his wife, Lydia M., acquired during their marriage a six hundred and forty acre headlight certificate. During the life-time of Lydia M., two hundred and fifty acres of said certificate were sold or traded to John Belcher, but the deed appears not to have been made until long after the death of Mrs. Belcher.

Tried below before the Hon. R. R. Gaines. On the 20th day of December, 1880, E. J. Chew took out a benefit certificate in the order known as the American Legion of Honor, for §5,000, payable to “W. R. and Helen M. Chew, father and mother.” He was a member of the local lodge of that order at Clarksville, Texas, by reason of which membership he obtained,the certificate, and he continued as a member and retained possession of the benefit certificate and paid the assessments and…

<p>1. Heirs—Colonist.—A colonist in Peters’ colony settled with his Avife and child on the land afterwards granted to him in 1843, and improved it. In 1844, during his absence with his family to another state, the wife and child died. In 1845 he returned, and two years afterwards again married, and with his second wife lived on the land until 1854. The colonist in his application for the land made oath to his immigration as a colonist with his wife and child prior to July, 1848. Held, that the children of the second mar- ' riage inherited from their mother no interest in the land.</p>

Tried below before the Hon. A. J. Booty. The appellants brought this suit by a bill of review to have the county court revise and correct its decree rendered, distributing the estate bf Ellen Y. Gray, deceased, and discharging Thos. J. Lacy, guardian of the estate. Ellen Gray died about 1879, and the decree was rendered in 1880. Appellants alleged that Ellen Gray died intestate, leaving neither father, mother, brother, sister, husband nor descendants surviving her.

Tried below before the Hon. John C. Robertson. This suit was brought by W. C. Robards and Mrs. S. A. Cain, joined by her husband, W. G. Cain, to recover damages for breach of contract, which was as alleged in substance as follows, to wit: That Robards and Cain were to build at Ferguson, in Upshur county, Texas, and at that time the terminus of defendant company’s road and its junction with the Texas & Pacific Railway, a hotel of certain dimensions, which they were to keep…

Error from Grayson. Tried below before the Hon. Jos. Bledsoe. Trespass to try title brought by H. M. Chaffin, and also for damages done to the land by cutting a ditch and throwing up an embankment, laid at §1,500, and for rents during defendant’s occupation. On the 10th day of December, 1878, a suggestion of the death of plaintiff was filed, and making the heirs parties, which was ordered by the court.

Navarro. Tried below before the Hon. L. D. Bradley. The following statement of the case, in connection with the facts set out in the opinion, will be sufficient for a clear understanding of the case: The litigation which was ended by the judgment from which this appeal is prosecuted is in regard to the title of a tract of six hundred acres of land, a part of the S. F. McCandless one-third of a league survey in Navarro county; the facts in regard to the same, as set up in…

<p>1. Disposition op a deceased’s exempted property.— The laws in force in this state on this subject have often been construed, as in Green v. Crow, 17 Tex., 184. In that case it was held that the property of the deceased, which during life-time was exempt from forced sale, vested absolutely in the beneficiaries pointed out by law. Hart. Dig., art. 1154.</p> <p>2. Statutes construed — Administration.— The act of 1870 (Pasch. Dig., art. 5847) does not inaugurate a different line of policy and right from that which prevailed prior to its adoption, because of its failure to point out specially the manner in which the exempted property should be distributed among the beneficiaries. The act of 1848 considered. Under the act -of 1870, all of the deceased’s property exempted, except for the purposes of a partition of a solvent estate, is withdrawn from administration when any constituent of the family of the deceased survived him. The value of such exempt property may be withdrawn though not existing in kind. Also, under the act of 1870, the legislature intended to give the use of the property to the family so long as the family relation existed, but when such relation ceased, by death or otherwise, the property would return to the estate for the heirs and creditors not constituents of the family at the death of the ancestor.</p>

Tried below before the Hon. L. W. Moore. Appellees, as plaintiffs in the court below, the surviving wife and children of T. J. Grace, deceased, on the 14th day of July, 1882, instituted this suit in the district court of Colorado county against appellant, “ The Supreme Lodge of Protection, Knights and Ladies of Honor,” a corporation, for the sum of $1,000, claimed to be due them by appellant by reason of an alleged membership of the relief fund in appellant’s order, of said…

Tried below before the Hon. Jo Abbott. This was a suit brought by the appellees against the appellant on an itemized account for goods and merchandise amounting to $1,030.84, alleged to have been sold and delivered to the defendant, for which he promised to pay on demand what they were reasonably worth.

<p>Error from Washington. Tried below before the Hon. I. B. McFarland.</p> <p>The opinion states the case.</p>

Tried below before the Hon. D. M. Prendergast, special judge.

Tried below before the Hon. L. W. Moore. In June, 1881, in a suit then pending in the county court of Hays county, wherein appellants were plaintiffs and J. M. and H. M. Adams were defendants, a writ of attachment was issued andi levied upon certain sheep, which were valued by the sheriff at $500. J. T. Blanks, the appellee, made claim June 14, 1881, by making oath and giving bond.

<p>1. Jurisdiction—Probate court — Statute construed.—Art. 2096, Revised Statutes, does not confer upon the probate court jurisdiction over contracts which are not executory in their character.</p> <p>2. Jurisdiction of probate courts.—No general jurisdiction to establish claims against an estate can be exercised by the probate court except in the mode provided by law; and where there are conflicting claims between the estate and some other person to specific property, they must be settled in some other than the probate court.</p> <p>8. Same.—The district court can acquire no jurisdiction by an appeal from the probate court when the jurisdiction of the probate court over the subject matter of the controversy did not exist.</p>

Tried below before the Hon. J. C. Russell. The contract referred to the petition as contained in Exhibit A was as follows: “Exhibit A. “ Laredo, Texas, January 6, 1881. “ At a called meeting held this 6th day of January, A. JD. 1881,, there was present his honor the mayor, and aldermen . . .

Tried below before the Hon. B. W. Rimes. Suit by appellee Early Greathouse against John A. Greathouse, on a purchase money note for $275, given for a tract of land, and to enforce the vendor’s lien thereon.

<p>1. Power— Deed.— In 1848 the owner of land sold the same, received the purchase money and acknowledged and delivered a deed, perfect in every respect except that the jjame of the grantee was not inserted in a blank left for that purpose. At the same time the purchaser was verbally authorized by the vendor to fill the blank with his name, or that of any one to whom he might sell the land. In 1856 the purchaser sold the land to another, and with his deed delivered the deed he had received, with the blank not yet filled, and which he never filled until 1878, when, his attention being called to it, he inserted his own name. Held-.</p> <p>(1) The verbal authority given by the vendor to fill the blank with the name of the grantee, or with any other name, was sufficient.</p> <p>(2) The power to fill the blank was a power coupled with an interest, and was irrevocable.</p> <p>(3) The fact that the purchaser had sold the land to another before he executed his power to fill the blank did not work a revocation of his authority.</p>

<p>1. Practice in supreme court—Briefs.—While the supreme court may, of its own motion, notice any fundamental error of law, apparent on the face of the record, parties in preparing their briefs will be deemed to have waived any matter not presented as required by the rules governing practice in the supreme court.</p> <p>2. Negligence.—Whether the parents of a child were guilty of contributory negligence in permitting their child to play at a place where lumber was alleged to have been piled in a dangerous manner, from the fall of which the child died, was a question of fact for the jury, under appropriate instructions from the court.</p>

Tried below before the Hon. H. D. Prendergast, special judge. Suit by Edmond Pierson to recover two hundred acres of land and to vacate an execution sale made March 4, 1879, by virtue of an execution issued from justice court precinct Ho. 1, Falls county, on a judgment recovered by appellant against him on the 10th of December, 1877, for $89.16 and costs. The execution on which the sale occurred was issued the 4th of February, 1879, for $51.10, a balance of the judgment.

<p>1. Statement of facts.—The rule again announced that a statement of facts made up and filed after the adjournment of the term will not be recognized on appeal, when the transcript shows no order made during the term allowing this to be done.</p> <p>2. Bills of exception. — Bills of exception must be signed and filed during the term; and though, under rule 56, exceptions to evidence may be embraced in a statement of facts in connection with the evidence admitted, such exceptions will be disregarded, unless the statement of facts containing them be properly made out and filed during the term, and presented to the judge within ten days after the trial.</p> <p>3. Practice.—■ In the absence of a statement of facts, the supreme court refused to revise the ruling of the district court in excluding a map offered, when the question was one of boundary, though exceptions thereto were properly taken and filed during the term. On this question the cases of Harvey v. Hill, 7 Tex., 591; Webb v. Maxan, 11 Tex., 679; King v. Gray, 17 Tex., 62; Galbreath v. Templeton, 20 Tex., 46; Sublett v. Kerr, 12 Tex., 367, and Balby v. Booth, 16 Tex., 563, were reviewed. Even if it was error to exclude the map, it could not be known, in the absence of a statement of facts, whether it was such an error as prejudiced the rights of the party offering it.</p>

<p>1. Fact case.— See opinion and statement of case for facts held sufficient to put a prudent man on inquiry as to a wife’s claim to land levied on and sold under execution against the husband.</p> <p>2. Execution sale — Separate property — Innocent purchaser.—A purchaser of land under an execution against the husband, the apparent title to which is in the community, but which was paid for with the wife’s separate means, a knowledge of which fact was communicated to the purchaser after levy, but before the purchase at execution sale, cannot be an innocent purchaser.</p>

Tried below before the Hon. Wm. H. Burkhart. This was a proceeding under the statute for the trial of the right to two billiard tables valued at $550. The case was tried below upon the following agreed statement: “ The Hempstead Real Estate, Building & Banking Association , Nos. 398, 399. vs. In District Court.

Tried below before the Hon. L. W. Moore. Adiline Holloway, joined by her husband, F. H. Holloway, brought this suit in the district court of Fayette county, on the 22d day of January, 1883, against the appellant T. P. Holloway and against the firm of Heard, Tuttle & Holloway, composed of appellant and two others. The object of the suit was to recover the amount of a note made to plaintiffs by the appellant and indorsed by that firm.

Tried below before the Hon. H. Clay Pleas-ants. This suit was brought April 29,1881, by appellant against appellee for an undivided interest in a tract of land in Bee county and for partition. The petition alleged that defendant owned eight hundred acres'in the survey, and that the residue, supposed to be one thousand acres, belonged to plaintiff.

Tried below before the Hon. I. B. McFarland. The following statement of the case by appellant’s counsel was adopted by appellee: “This suit was filed in the district court of Washington county, 22d day of September, 1879, by Rachael Morris, a married woman, against her husband, Ben Morris (who refused to join her), and F. & A. Geisecke, to recover from F. & A. Geisecke her homestead, alleged to have been sold them by said Ben Morris without her consent.

<p>1. Declarations — Evidence.—In a suit between the surviving wife and another, she claiming by limitation land held by the deceased husband, the husband’s declarations as to the character of his possession are admissible in evidence.</p> <p>2. Limitation.— Occupancy of a street or alley of a town or city, by fencing the same up, is not adverse when such occupancy is by the permission of the town or city authorities. Such permission creates between the town or city and the possessor the relation of landlord and tenant. Such a holding cannot afterwards become adverse so as to sustain a plea of limitation, until the possessor does some open, hostile act, clearly indicating his adverse claim; and this rule applies to the heir who continues the occupancy which was received from the ancestor.</p>

Tried below before the Hon. I. B. McFarland. The record showed that the defendant, Alfred Farquhar, was a married man in 1855, and that he then bought the land, now in the county of Waller, and moved on it, and established his homestead thereon, and lived on it continuously until December, 1870. On the 30th of January, 1868, his first wife died, and in 1869 he married a second wife (Miss E. J. Newman).

Tried below before the Hon. W. H. Stewart. Suit by John Malin against the Galveston Oil Company to recover damages, alleged to have resulted to him by reason of injuries received in the performance of his duties as its employee in putting a leather belt on a pulley used in operating a part of the machinery of its mill. The injuries were received about February 26, 1883, and were charged to have been due to defective machinery and the negligence of the company.

Houston. Tried below before the Hon. John E. Kennard. The only contest in the trial of this case in the district court was upon the issue whether or not appellee Woodson had so paid the tax due on the land he claimed as to sustain his defense under the five years’ statute of limitation; and as to that, the sole question left in' doubt by the evidence was: Had he so paid the tax for the year 1874?

<p>1. Practice—Trial by jury.— The plaintiff in a cause made affidavit under , art. 1438, Revised Statutes, and filed the same with the clerk, who placed the case on the jury docket. A year afterwards, when the jury list was-about to be passed on in selecting a jury, the defendant objected to a jury-trial, on the ground that the affidavit was made under art. 1438, Revised Statutes, instead of under art. 3067. Thereupon the plaintiff asked leave to amend his affidavit, so as to make it comply with the requirements of the statute, and offered to deposit the jury fee. Held, that a trial by jury-should have been allowed.</p>

Washington. Tried below before the Hon. I. B. McFarland. M. S. Eddins brought this suit to recover damages done to her homestead lot, situated in the city of Brenham, by reason of the construction of defendant’s railway along a street in front of the lot.

Tried below before the Hon. W. A. Blackburn. William Owens, on the 14th day of October, 1879, sued A. P. Lee, John Calvert and P. L. Slaughter, the appellant, to substitute and revive a personal judgment recovered by him on the 12th day of November, 1875, against Lee & Calvert for $293.75, which had become dormant, and had been destroyed; to have the same declared a lien, and to foreclose the lien upon a tract of one hundred and sixty acres of land which Owens had conveyed…

Tried below before the Hon. J. C. Russell. The opinion sufficiently states the case. It is unnecessary to give the authorities relied on in the able briefs of counsel, since they all refer to the validity of the grant offered in evidence by appellant, and which, in view of the disposition made of the case, are unimportant.

Error from Harris. Tried below before the Hon. James Masterson. Defendants in error brought this suit against plaintiffs in error and others to set aside and annul certain orders of sale, sales, and confirmations thereof, made by order of the probate court of Harris county, in the estate of Robert Barr, deceased, administered on by one Jacob De Cordova.

Tried below before the Hon. A. J. Hood, On April 1, 1880, Hemphill brought this suit against Watson to vacate and set aside a sale of land, and to set aside and vacate the trust deed under which the sale was made.

Tried below before the Hon. L. C. Alexander. Suit by Elizabeth Williams, Lillie Williams, Sallie Williams and Dollie Williams, infants under the age of twenty-one years, by L. C. Williams, their next friend, against W. P. Young and his wife, Alice Young, and against the appellee, D. L. Russell, to recover their interest in certain tracts of land, and to cancel certain deeds to some of the tracts of land which had been conveyed by W. P. Young to D. L. Russell.

<p>1. Evidence.— One wishing to introduce parol evidence of the contents of a record alleged to be destroyed, proved that the building in which it was kept had been destroyed by fire; that the witness had been informed at the proper office that a great many of the records, and nearly all of the office papers, were missing, and that the clerk had told him that they had been burned, but no evidence of inquiry for the particular record, or of its destruction, was shown. Held, that parol evidence of its contents could not be received. Following Dunn v. Choate, 4 Tex., 14.</p> <p>3. Bankruptcy.— When property claimed by the bankrupt as exempt property is set aside to him, if the same be subject to a former lien, the right of the lien holder is not affected by the act of the assignee in setting aside the property.</p> <p>3. Mortgage—Powers — Bankruptcy.— A mortgage with a power of sale, creates a power coupled with an interest, which cannot be revoked by the mortgagor; and the authority of the mortgagee to execute it in the name of the mortgagor, and as his attorney, is not affected by his bankruptcy; the assignee can only take subject to the rights of the mortgagee. Following Hall v. Bliss, 118 Mass., 554, and Eyster v. Gaff, 1 Otto, 521.</p> <p>4. Homestead.— See charge of court for an instruction in regard to homestead held correct.</p>