Volume 64 — Texas Reports

<p>1. Divorce. — By the ecclesiastical law, and under statutes adopting its principles, a divorce may be granted for ill-treatment by a spouse, when of such a character as to create a reasonable apprehension of danger to the physical safety of the party seeking the divorce. What conduct on the part of the offender is sufficient to create a reasonable fear of bodily harm to the other cannot be easily defined. The habits and character of the parties, their previous training, their social position, the provocation given by the complaining party, the frequency of ill-treatment, and like facts, must be looked to in determining each particular case.</p> <p>2. Cases reviewed. — Finley v. Finley, 9 Dana, 52; Richards v. Richards, 1 Wright (Pa.), 225, and Richards v. Richards, 1 Grant’s Cases (same case), 389, reviewed, and the fact announced that in each of them, where it was held that a single act of violence, though amounting to a slight assault upon the person of the wife, would not be sufficient to' justify a divorce, the further fact appeared that the complaining party had in some degree provoked the violence, and the opinions were controlled by the peculiar language of statutes on the subject.</p> <p>3. Divorce. — A husband, after working his wife in the field while she was pregnant, and requiring her to do as much work as himself, violently seized her, and, cursing her, drove her and her babe from his home, no other act of violence being shown. It was shown that the wife was amiable and exemplary." Held, that, under such circumstances, the requirements of the statute to authorize a divorce were fully met, and this court, reversing the judgment of the court below, directed the divorce to be granted, and the custody of the infant child to be decreed to the mother.</p>

<p>Appeal from Denton. Tried below before the Hon. W. J. Austin, Special Judge.</p> <p>Suit by appellee against Washington, Cloud, and Sacra, as the makers of a note, and against Bollins as guarantor.</p> <p>The plaintiff in its pleadings alleged that the defendant, B. S. Bollins, guarantied the payment of the said note to plaintiff, by making the following written indorsement upon the back of said note, to wit: “ Payment guarantee.”</p> <p>The indorsement upon back of note sued upon and introduced in evidence was as follows: “Payment guarantee?.”</p> <p>After the jury had retired under the charge of the court, they returned into court the following as their verdict, to wit:</p> <p>“We, the jury, find for the plaintiff as follows: $4,000 principal, $124 interest; $400 attorneys’ fees. We further find that J. W. Sacra, Isaac Cloud and B. S. Bollins are sureties.</p> <p>“H. S. Clardy, Foreman.”</p> <p>When the above verdict was handed to the court the judge announced that the same was informal and not responsive to the charge of the court, and called the plaintiff’s attorney, E. C. Smith, handing him the verdict, who, under the direction of the court, wrote out the following verdict: “ We, the jury, find for the plaintiff, and assess his damages at $4,524. We further find that J. W. Sacra and Isaac Cloud are sureties.” Which verdict as written out under direction of the court was then handed to the jury, who were requested by the court to retire and further consider of their verdict. The jury retired, and after some deliberation returned into court the verdict as written out under the direction of the court, signed by the foreman, which was as follows:</p> <p>“We, the jury, find for the plaintiff, and assess its damage at $4,524. We further find that J. W. Sacra and Isaac Cloud are sureties. H. S. Clardy, Foreman.”</p> <p>The court, learning that some of the jury were dissatisfied with their verdict, requested them to retire again and consider of their verdict. The jury then retired and returned again into court as their verdict the following verdict:</p> <p>“ We, the jury, find for the plaintiff, and assess its damages at $4,524. We further find that J. W. Sacra and Isaac Cloud are sureties. H. S. Clardy, Foreman.”</p> <p>The last verdict the court caused to be read out by the clerk, and had the jury polled, and they declared the same to be their verdict, which was received, and jury discharged.</p>

Tried below before the Hon. O. 0. Potter. Suit brought by O. B. Beard, appellant, against the city of Decatur, alleging that the city was a municipal corporation, under general laws of the state of Texas, and that plaintiff, Beard, was, from August 6, 1882, up to the date of filing this suit, October 15, 1883, the duly appointed, qualified and acting treasurer of the city, and, as such, entitled to all the fees, perquisites and emoluments arising out of or incident to said…

<p>1. Case approved and limited.— Ferris v. Streeper, 59 Tex., 312, which declares the right of one interested in the subject-matter of litigation to make himself a party, and to assert his rights even after judgment, and move for a new trial, referred to, approved and limited.</p> <p>2. Same — Supersedeas.— One thus interested, against whom no judgment is rendered, who after judgment appears and appeals in his own right from a judgment refusing his motion for new trial, does not by such appeal affect the right of the successful party to enforce the collection of his judgment against property ordered to be sold to satisfy the judgment rendered against a third party in the cause who did not appeal.</p> <p>3. Damages — Unauthorized suit.— One who without authority brings a suit, or prosecutes an appeal in the name of another, whereby damage results to a third party, is liable therefor. Following Foster v. Dow, 39 Me., 445; Smith v. Hyndman, 10 Cush., 554, and other cases noticed in the opinion.</p> <p>4. Measure of damages.— The measure of damages against one who, without authority, appeals from a judgment against another in the name of such other (the judgment remaining in full force), cannot exceed the balance due on the judgment, with the costs of the proceeding in which it was rendered, and the costs of the action brought to enforce its collection.</p>

Tried below before the Hon. B. W. Bimes. Appellee, on the 20th of February, 1878, filed its suit against the appellant A. O. Gaines and Lina Gaines and J. W. Whitsett, to cancel and set aside two deeds made by A. O. Gaines; one to Lina Gaines conveying three hundred acres of land, and one to J. W. Whitsett conveying three hundred acres, the two tracts constituting the six hundred acres of land.

<p>1. Construction of a will. — A will, after making specific bequests, contained this language: “I also give to said legatees (meaning appellees) my cart, all my cattle (except oxen), and any horses of mine they may have in possession at the time of my death.” Over two years after making the will the testator died, leaving an estate, part of which consisted in home stock cattle, in the possession of the legatees to whom the above quoted language referred, and an interest, as partner, in other cattle in possession of a partner, and still others purchased to be fattened and sold as a means of profitably consuming his grain crop, for account of the testator and a partner. Held, that construing the will in view of all the facts (which are very fully detailed in the opinion), the word “ cattle ” did not embrace cattle bought to be fattened by the testator.</p> <p>2. Practice — Jurisdiction — Consolidation of suits. — Suit was brought in the probate court, and the probate judge being disqualified, from interest, the case was transferred to the district court. Afterwards the plaintiff brought another suit in the district court against the same defendants. Both involved the construction of a clause in a will under which plaintiffs claimed specific property. Held:</p> <p>(1) That a motion to transfer the suit first brought, back to the probate court, because the disqualification of the judge had ceased, was properly overruled.</p> <p>(2) The district court had full jurisdiction to make, not only any order the county court might have made, but to consolidate the two suits and determine finally the construction of the will.</p> <p>(3) The authority of the district court on a .consolidation of the two suits was not limited to a construction of the will, but extended to the final adjudication of all rights of property claimed by the contestants under the will.</p>

Tried below before the Hon. W. E. Collard. On the 18th of March, 1881, Horne transferred to Chatham & Co. the right to a patent issued to him for improvement in cotton gins, for the state of Texas, except the northeast corner, east of the II. & T. 0. It. It., and north of the Texas & Pacific. Part of the consideration was a royalty of twenty-five cents per saw for all gins sold under this contract. This suit was brought to recover royalty so due.

Tried below before the Hon. A. J. Hood. Suit against the purchaser of premises by appellee to enforce his lien against the property fpr materials furnished the vendor. The vendor was made a party defendant, and cited by publication. The facts connected with the lien are apparent from the opinion.

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

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

Tried below before the Hon. J. M. Maxcy, Special Judge. February 1, 1882, Meyer and Henry Grabenheimer, the latter 1 being surety, executed and delivered to S. Gumbel & Co., of Hew Orleans, La., two notes of $2,500 each, payable six and twelve months after date, respectively.

Tried below before the Hon. L. C. Alexander. Appellee and W. J. Barron, as administrators of T. BE. Barron, deceased, brought suit in the district court of Falls county against R. C. Barron, E. G. L. Wiebusch, James Patterson, J. H. McGee, W. L. Mann, Wm. Gordon and R. L. Cox on a note purporting to have been executed by those parties and payable to the above named administrators. The note was for $1,446.50 and was dated July 25, 1874.

<p>1. Jurisdiction — Attachment—Venue.— In a suit by attachment to recover | ®¡t a debt due from a mercantile partnership, and brought in a county in which neither of the defendants resided, one of the defendants pleaded in abatement, claiming the privilege of being sued in the county of his residence. Afterwards, and after the dissolution of the partnership, the other defendant filed a general denial to the action. Held:</p> <p>(1) The entry of an appearance, and the filing of a general denial by the defendant last answering (it being shown that firm debts were still unpaid), brought both parties defendant into court for the purposes of the attachment already levied on partnership property alone, notwithstanding the plea in abatement filed by the other partner, and jurisdiction attached.</p> <p>(2) The court had jurisdiction to foreclose the attachment and to render any other judgment affecting only the firm estate.</p>

Tried below before the Hon. R. R. Gaines. On the 25th of February, 1884, appellee H. Blum brought a suit of trespass to try title against J. 0. McDonald, John T. Booth and appellant W. T. Beard to recover a house and lot. McDonald and Booth disclaimed and were dismissed from the suit. Beard filed.a general demurrer, plea of not guilty, and pleaded the statutes of limitation of three and five years.

Tried below before the Hon. R. R. Gaines. On June 30, 1880, Wright brought this action of trespass to try title, against Straub, to recover the lot described in the petition. Straub answered by general demurrer, general denial, and not guilty.

Tried below before the Hon. Wm. H. Stewart. The statement of appellant’s counsel presented the case substantially correct, thus: Appellant Stanley, in his petition, alleged lawful possession in himself of lot 8, in the northeast quarter of out-lot 141, in Galveston, upon which he had built a house in which to keep a bar and restaurant, investing all his means in constructing and equipping the establishment, and thereafter occupying and doing a profitable business there,…

<p>1. Homestead. — A lot on which stood a dwelling-house was purchased nearly three months before the expiration of a lease to a third party, who continued to occupy it until the expiration of the lease. The purchaser declared his intention to his wife, and to no one else, to make the property his homestead, and it appeared that he could not obtain possession before the expiration of the lease. On the expiration of the lease he removed to and occupied the dwelling-house. An injunction was obtained to restrain the sale of the property under execution issued on a judgment which was rendered against the purchaser before the date of his purchase. Held:</p> <p>(1) That the property was protected by the statute exempting the homestead from forced sale.</p> <p>(2) That the injunction should have been perpetuated.</p>

<p>Appeal from Tarrant. Tried below before the Hon. M. D. Priest, Special Judge.</p> <p>The statement of facts is set forth in the opinion.</p>

<p>Appeal from Tarrant. Tried below before the Hon. M. D. Priest, Special Judge.</p> <p>The opinion states the facts.</p>

<p>1. Statute of limitations.— The statute of limitations runs from the time a cause of action accrues, and no matter what causes a note to become due, the maker can avail himself of any failure to sue within the period of limitation. The statute of limitations is intended to compel the settlement of claims within a reasonable time after their origin and while the facts are fresh in the minds of the witnesses.</p> <p>3. Same, — To allow a holder to treat a claim as due at a later date than the maker has agreed that it should mature would destroy the purpose of the statute, since the evidence for the enforcement of the claim might be preserved, while that for its resistance might be destroyed.</p> <p>8. Same.— When by the terms of a contract option is given to a creditor to bring suit for the entire debt upon the non-payment of an instalment, and he fails to bring such suit, the debtor may possibly be justified in supposing that the creditor has elected not to take advantage of the forfeiture, if forfeiture it is, and may be chargeable with knowledge that limitation will not be computed, as against the entire debt, from the date of the failure to make a part payment. But when the contract gives no such option to the creditor, he cannot postpone the maturity of the debt and waive the forfeiture, but the statute runs from the date of the first failure to pay an instalment.</p>

<p>Appeal from Parker. Tried below before the Hon. A. J. Hood.</p> <p>July 11, 1883, Medaris brought suit against the railway company to recover damages for negligent burning of his pasture fence and grass.</p> <p>January 29, 1884, by first amended petition then filed, he alleged that the land upon which the fence and grass were destroyed belonged to his wife, Mary H. Medaris, and seeks the recovery in the right of his wife, alleging that the company negligently permitted grass and weeds to grow and accumulate upon its right of way, and then negligently permitted sparks to escape from passing engines, and set the same on fire, which immediately communicated the fire to said lands of his wife and destroyed the fence and grass as charged.</p> <p>Appellant answered by exceptions and plea of not guilty.</p> <p>The case was tried August 16, 1884, and verdict was returned and judgment entered for appellee for $400.</p> <p>The court charged in effect that, if the railroad company used that degree of care and prudence in running its engines, with reference to plaintiff’s grass and fencing along its route, by keeping its right of way free from combustible matter, which railway companies of usual care and prudence commonly used under like cir-circumstances to those in this suit, then defendant was not liable. But if the defendant so operated its engines that it did not observe, with reference to the safety of plaintiff’s grass and fencing, that degree of care and prudence that is commonly used by railway companies under like circumstances, and did not keep its right of way in as safe condition, with reference to fire, as such companies usually did under like circumstances, and that plaintiff was damaged as alleged, it would be their duty to find for the plaintiff. If the evidence failed to establish negligence on the part of defendant, or that plaintiff’s property was destroyed by such negligence, or that plaintiff was thereby damaged, they would find for defendant. That by the term negligence, as used in this charge, was meant a want of that degree of care, caution and prudence which ordinary men commonly use under like circumstances, with reference to safety of property.</p>

<p>Appeal from Grayson. Tried below before the Hon. Richard Maltbie.</p> <p>This suit was commenced August 19, 1882, by Rat Smith and Belle Smith, his wife, against Jo B. Roberts and his wife, Florentha Roberts, to recover the amount of a promissory note, by defendants to plaintiffs, dated March 8, 1879, payable six months from date, for §540.53, “ without interest,” and to foreclose a vendor’s lien for its amount upon two tracts of land in Grayson county, for the purchase money of which it was given.</p> <p>Defendants, by amended original answer, set up a written agreement contemporaneous with the note, and on the same sheet of paper, providing that it might be discharged by conveyance of an undivided one-eighth interest in certain land in Tennessee known as the Lankford homestead, which was to be valued by appraisers, and the difference between the appraised value and the note, paid by Smith or Eoberts, as the case might be.</p> <p>Defendant alleged a valuation under the contract showing $646.97 due to Smith in excess of the note sued on, and tendered a deed on its payment, claiming to have always been ready to carry out such contract.</p> <p>Plaintiffs replied by supplemental petition that defendants had no interest in the Tennessee land except what Florentha Eoberts had under the will of her deceased father, Lankford. That this was not an undivided one-eighth, but was subject to the life estate of her mother, Permelia Lankford, who was in possession of the premises.</p> <p>They alleged that the valuation made was fixed upon the entire one-eighth interest, and in ignorance of the life interest of the mother, and that tender of performance was too late.</p> <p>Defendants in reply claimed -that the delay was due to plaintiffs’ failure to furnish description of land for the deed as agreed, and to an extension of the time of performance, and that the condition of the title to the Tennessee land was known to plaintiffs at the time of making the contract.</p> <p>The cause was tried before a jury, and plaintiffs, under the instruction of the court, recovered judgment for the amount of the note, $540.53, with interest from September 12,1879, being $218.61, and for the foreclosure of the vendor’s lien.</p>

<p>1. Amendment — New cause of action — Costs. — A suit was brought tore-cover the value of machinery alleged to have been wrongfully converted by defendant. Afterwards by amendment the plaintiff charged that the defendant wrongfully procured an attachment to issue and to be levied on the machinery, and had it sold for a nominal price to satisfy a debt due from plaintiff to defendant, whereby he was damaged by having the property thus sold sacrificed. Held, that the amendment presented a new cause of action, and plaintiff was chargeable with all costs incurred up to the filing of the amendment. The right to amend, changing the character of the action, existed.</p> <p>2. Limitation.— The limitation of two years applies to an action to recover damages claimed on account of the seizure and sale of property under an attachment wrongfully sued out. In such a suit the cause of notion could not have accrued at an earlier period than the date when the property was seized under the writ.</p> <p>8. Attachment. — An attachment is wrongfully sued out when the facts on which it is based do not exist, and the defendant in attachment can recover whatever actual damages he sustains by the seizure of his property under the writ thus wrongfully obtained.</p> <p>4. Damages.— In a suit to recover damages caused by the sacrifice of property by sale under an attachment wrongfully sued out, the fact that other ground for attachment than that mentioned in the writ existed, while it might perhaps be pleaded and shown in mitigation of damages, would not constitute a defense to the action.</p> <p>5. Same.— The irregularity of the proceedings under which property is thus wrongfully seized and sacrificed can constitute no defense in an action for damages.</p>

Error from Collin. Tried below before the Hon. K. R. Craig, Special Judge. Suit of trespass to try title to six hundred and forty acres of land in Collin county, Texas, out of the James Osgood survey. Both parties claimed title under Ambrose Douthit, the patentee — the plaintiffs by deed made in 1857; the defendants by deeds made in 1860 and 1863. The plaintiffs’ deed was on record nearly three years before the first of the other two was made.

<p>1. Cause of action — Limitation.— Suit was brought on a judgment, within ten years from its date, which the petition alleged was in full force, and on which plaintiff asked in his petition for judgment. Afterwards, and after the expiration of ten years from the date of the original judgment entry, the plaintiff amended his petition, alleging that the original judgment was dormant, and had lost its lien when suit was brought, and prayed for its enforcement. The defendant raised the question of ten years’ limitation by demurrer, on the ground that the amended petition set up a new cause of action. Held:</p> <p>(1) The cause of action was the judgment on which a recovery was sought.</p> <p>(2) The fact that the amendment prayed for a larger remedy did not vary the cause of action.</p> <p>(3) The running of the statute of limitations was stopped by the institution of the suit.</p> <p>2. Judgment, suit on.— A judgment which, though not dormant, has lost its lien, may be made the basis of an action to restore the lien either by scire facias or by action of debt.</p> <p>3. Attorney — Principal and agent. — An attorney who represents a client in obtaining a judgment for money has, as such, no authority to bind his principal by agreeing to take anything else in payment. When such attorney accepted claims upon others in discharge of the debt, and informed his client that they were taken as collaterals, the only obligation imposed on the client was to use due diligence in their collection and application to the discharge of the judgment.</p>

Tried below before the Hon. E. W. Terhnne, Special Judge. This was a suit brought by appellee for one-half interest in a tract of land, and for partition. Appellants pleaded not guilty and improvements made in good faith. The case was submitted to the court at the August term of 1884, and judgment rendered against appellants for one-half the land.

<p>1. Impeachment of record.— Third parties cannot impeach the record of a court of general jurisdiction by evidence aliunde, when such record is regular upon its face; but if the face of the record shows that the court liad no jurisdiction over the person of defendant, it can always be collaterally attacked.</p> <p>2. Purchaser.— The purchaser of property at an execution sale under a judgment which is void upon its face for want of jurisdiction acquires no title as against the original owner, since he is chargeable with notice of the defect.</p> <p>3. Void judgment. — A purchaser at a sale under execution, issued on a judgment in a cause where service was attempted on the defendant in execution by publication, acquires no title, if the record affirmatively shows that publication was not made for the period required by law; and this may be shown in a collateral proceeding.</p>

Tried below before the Hon. M. D. Priest, Special Judge. Sidney Martin, appellee, filed a petition in trespass to try title against the appellant, on the 29th day of March, 1884, for a lot in the city of Fort Worth, described in the petition as follows: “Situated in the city of Fort Worth, and known and designated on the map of said city as lot No. 8, in block No. 29, bounded as follows: Beginning at a point in west line of Elm street, one hundred feet northward from the…

<p>1. Evidence. — The rule again announced that when there is no objection made in the court below to the introduction of testimony, none can be made in the supreme court.</p> <p>2. Community.— A person can qualify as a survivor in community within the time that a valid administration might be opened upon the estate. If a survivor conveys community land after qualifying as survivor in community, it does not affect the validity of the sale that the preliminaries regarding such sale were agreed to prior to his thus qualifying.</p>

<p>Appeal from Tarrant. Tried below before M. D. Priest, Special Judge.</p> <p>The opinion states the facts.</p>

<p>Error from Burnett. Tried below before the Hon. W. A. Blackburn.</p> <p>The opinion sets forth the facts.</p>

Error from Comal. Tried below before the Hon. Thos. M. Paschal. This was a suit in trespass to try title brought by Mary F. Gentry and her husband, Abraham M. Gentry, on the 26th day of August, 1882, against Edgar Schramm, Herman Riedel, A. Ditmar, George H. Schmitt and Ernst Gruene, Jr. The land sued for was situated in Hew Braunfels, Comal county, Texas.

Tried below before the Hon. H. Teichmuller. Suit by appellant to recover damages for personal injuries sustained through the alleged negligence of appellee while appellant was being transported by appellee as a passenger upon its railroad.

Tried below before the Hon. G. H. Noonan. This suit was instituted on the 27th day of August, 1883, by the appellees, Helm and wife, to recover $25,000 damages for personal injuries sustained by Mrs. Holm on the 12th day of the same month, through the negligence of appellant’s employees.

<p>1. General denial — Evidence. — It is well settled in this state that a general denial puts the plaintiff upon proof of every material allegation in his petition. Under it, in a suit to recover damages for breach of contract, defendant can introduce evidence to show that plaintiff failed to fulfill his part of the contract, and thus disprove his allegations of performance or willingness to perform.</p>

Tried below before the Hon. G. H. Noonan. On the 12th of July, 1883, Mrs. Kate Cocke, joined by her husoand, brought suit in the district court of Bexar county, Texas, against the I. & G. N. R. R. Co. for damages caused by the killing and injury of stock, and recovered judgment for $300. A motion for a new trial being overruled, defendant appealed.

Tried below before the Hon. D. P. Marr. In this case the will concluded as follows: “ And now, in the presence of H. L. Harrison and G. W. M. Duck, W. N. Smith, who I have requested to act as witnesses, I declare the writing contained in the foregoing ten pages my last will and testament. Gr. W. Chapman.” After the name of Gr. W. Chapman, the testator, was written the following: “ The State of Texas, ) County of Atascosa, j “ Before me, A. Gr.

Tried below before the Hon. 0. 0. Potter. On May 5, 1876, Frost Thorn, Jr., Wm. T. and Mary Garner brought this suit against appellee and others, for the recovery of the north half of the league of land patented to George H. Duncan. They derived title through a contract between their deceased father, Frost Thorn, Sr., and Geo.

Tried below before the Hon. B. F. Williams. This suit was brought by appellants to recover a certain lot in the town of Wichita Falls, together with rents at the rate of $125 per month from the 6th day of April, 1884, which they averred to be the rental value of the premises. At the August term, 1884, defendant W. H. Ballow filed a plea of not guilty, and the other defendants filed a disclaimer.

<p>1. Appeal— Final judgment. — A judgment was rendered against two defendants in the court below; one appealed, and the judgment was reversed and the cause remanded. The plaintiff below then filed an amended petition setting up the original judgment against the defendant who had not appealed, and asking for judgment against the one who had appealed. While the former was thus retained as a defendant, the judgment made no disposition of the case as to him. Held, that the reversal affected both defendants, and that, as the second judgment did not dispose of the case as to the defendant who did not appeal, there was no final judgment on which process could issue or an appeal be prosecuted.</p>

<p>1. Evidence.— The action of the court below in excluding the testimony of a witness cannot be reviewed if the bill of exceptions fails to show what his testimony would have been.</p> <p>2. Pleading — Prayeb fob belief — Inconsistency.— Where a petition stated that suit was brought to recover property in the separate right of the wife, and there was no averment of any fact that would make the property community, but the plaintiff prayed that in case the property were proven to be community, he might recover it as such, held, that it was error to charge the jury “to find for plaintiff if the property belonged to either the separate or community estates.” For no matter what the prayer of the petition is, the plaintiff must recover in the right in which he sues and upon the facts stated in his pleadings as the basis of that right. A prayer for relief inconsistent with the facts stated in the petition is of no value.</p>

<p>1. Tenant at will —Implied contbact. — On June 33, 1883, M. leased a house to W., the lease to expire at 13 M. on June 30, 1883; in November, 1883, S., with the consent of M., acquired from W. the unexpired term. Held, that the term expired at 13 M. on the 30th of June, 1883, and that M. was entitled to possession at that time, without giving notice, unless by another contract he consented to the further occupancy of the premises by S. If up to the expiration of the lease M. had expressed no intention of leasing to S. for another year, but permitted him to remain in possession and pay rent as before, an implied contract that he should occupy the property another year might arise. ■</p> <p>2. Same.— If, however, at or before the expiration of the lease, the tenant was informed that he would not be allowed to occupy the premises, after the expiration of the lease, otherwise than as a tenant from month to month, no contract that he should occupy the premises for a year could be implied, for an implied contract arises from the presumed intention of the parties, and in this case the landlord expressed his intention to the tenant and the tenant is presumed to have assented to the proposition.</p> <p>8. Finding oe the court.— If there is nothing in the record to show that a finding of fact by the court was erroneous, such finding is conclusive.</p> <p>4. Notice. — Our statutes do not prescribe for what length of time demand for the possession of rented premises, held at will, must be made to entitle the landlord to an action of forcible detainer; thirty days’ notice given by M.’s agent was held sufficient in this case.</p>

<p>Error from Caldwell. Tried below before the Hon.. L. W. Moore.</p> <p>The opinion sets forth the facts.</p>

<p>Appeal from Taylor. Tried below before the Hon. T. B. Wheeler.</p> <p>The opinion sets forth the case.</p>

B. F. Williams. The statement of the commission of appeals is adopted, and is as follows: Appellant was a wholesale merchant, residing and doing business in the city of Dallas, Texas.

Tried below before the Hon. D. E. Barrett, Special Judge. Suit was filed in the district court of Cooke county by appellee, alleging that the plaintiff was the owner of lot Ho. 5, in block Ho. 9, in Hahn’s addition to the city of Gainesville, claiming under a regular chain of transfers from the defendant, Cyrena Leach, formerly Cyrena Rowland.

Tried below before the Hon. Gf. H. Hoonan. July 7, 1883, Mary A. Howth, as surviving wife, and the other appellees as children of W. E.' Howth, deceased, brought this suit to recover of appellants an undivided half interest in the land described in the petition. Their claim, arose as follows: First. Patent issued to W. H. Dangerfield and W. E. Howth, assignees of F. Ortega, for about four hundred and fifty acres of land adjoining the city of San Antonio. Second.

G. H. Boonan. In 1874, Adams & Wickes, Hancock & West and R. A. Henson and John James jointly held a body of land in Bell county, Texas, which was a portion of a grant to J. B. Arocha, — Adams & Wickes owning an undivided one-third, Hancock & West and R. A. Henson an undivided one-third, and John James an undivided one-third. • In 1874 they joined in a deed of partition between themselves.

<p>Appeal from Mitchell. Tried below before the Hon. Wm. Kennedy.</p> <p>The opinion states the facts.</p>

Eeeoe from Tarrant. Tried below before the Hon. A. J. Hood. Suit begun in the district court of Tarrant county against the city of Fort Worth, to recover damages for wrongfully and unjustly casting, carrying and depositing, by defendant, and causing to be cast, carried and deposited, on ten acres of land, in .possession of the city of Fort Worth, great quantities of filth, dirt, gravel, refuse material, matter discharged from privies, water closets, stables, sinks and…

Tried below before the Hon. W. H. Stewart. This suit was brought in 1874 by Esther Y. League and her children, heirs of Thomas M. League, against John W. Lapsley, the heirs of T. B. Goldsby, W. Plattenberg, T. J. Frow, the heirs of J. L. Price, Simon Mussina, H. B. Yard, Geo. Butler and Tomas de La Yega, and was consolidated with a suit against Thomas M. League and John C. Watrous, brought by John W. Lapsley to recover on a note for $4,533.

Tried below before the Hon. M. A. Spoonts, Special J udge. ' Appellants brought this suit against appellee June 4, 1884, in a justice’s court, to recover the sum of $61.74, the value of two thousand nine hundred and forty feet of lumber claimed to have been taken and used by appellee.

<p>Appeal from Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The opinion states the facts.</p>

<p>1. Purchaser for value.— One is in contemplation of law a purchaser for value if the consideration is paid at his request by a third party, who is his debtor.</p> <p>2. Conviction — Community property. — The sentence of a husband to the penitentiary, and.his confinement there, is equivalent to an abandonment of the wife, and authorizes her to manage and dispose of the common property, at least so far as to secure a support for herself and children.</p>

Tried below before the Hon. Wm. H. Stewart. J. H. Johnson sued King & Davidson for damages, actual and punitive, for procuring attachment to issue from Galveston county court, in a suit there brought by them against him, directing seizure of his property, August 21,1883, on an affidavit to the effect that he had disposed of his property, in whole or in part, with intent to defraud his creditors.

Tried below before the Hon. Frank Willis. This suit was brought by appellants against appellee, as sheriff and ex officio tax collector of Wheeler county, to restrain appellee from enforcing the collection of certain state and county taxes assessed by Wheeler county upon certain horses and cattle of appellants, which horses and cattle were situated in Greer county at the time of the assessment and before and after the 1st day of January, 1882.

Tried below before the Hon. A. J. Hood. This was an application made by the Texas & Pacific Railway Company in the county court of Tarrant county, Texas, to probate a paper as the last will and testament of Caroline M. Daggett, who died November 6, lS'fh The application was filed July 4, 1882.

Tried below before the Hon. G. H. Noonan. Suit filed on the 24th day of February, 1883, by appellants Malcolm Gillis and Elmira Gillis against John Rosenheimer, J. S. Sproul, guardian of estate of William Taylor, lunatic,' W. A. Lockart and S. A. Lockart, to enjoin the sale by John Rosenheimer, substitute trustee, under a deed of trust of two tracts of land in Bexar county, Texas, executed by W. A. Lockart and S. A. Lockart, on January 11, 1878, to secure to defendant…

<p>1. Parties — Foreclosure — Lien.— One holding a purchase money note to secure which an express lien was reserved in the deed to the land for which it was given, brought suit against the maker alone, and obtained judgment foreclosing the lien; under that judgment the land was sold. In a suit to recover the land, brought by a third party, who was a purchaser at the execution sale, and against one in possession of the land under deed from the first vendee when the suit to foreclose was brought, but who was not made a party to the suit to foreclose, held:</p> <p>(1) When land is sold and the purchase money is to be paid, either wholly or in part, on a particular day, and a lien is expressly reserved to secure its payment, the sale is executory, and title does not pass to the vendee until the purchase money is paid, but remains in the vendor.</p> <p>(3) In an executed sale the vendee takes title which he can convey to a third party, subject, however, to the vendor’s lien as against such subsequent purchaser with notice. But to foreclose the implied vendor’s lien in an executed sale so as to affect the title of a subsequent vendee, he must be made a party.</p> <p>(3) A judgment in a proceeding between third parties cannot divest title out of one not a party, and is not admissible in evidence against him on an issue involving the title.</p> <p>(4) The right of a subsequent purchaser of property claimed under executory contract is not, strictly speaking, an equity of redemption. It is the right to tender to plaintiff, in a foreclosure suit, the amount of unpaid purchase money to obtain a title.</p> <p>(5) A subsequent vendee in possession is not a necessary party to a suit to foreclose an express lien reserved in a deed to his vendor, and Ihe purchaser at sheriff’s sale under the judgment of foreclosure, though a third party, may maintain trespass to try title against such subsequent vendee in possession, who was not a party to the suit to foreclose.</p>

Tried below before the Hon. A. J. Hood. On the 26th day of May, 1883, S. B. Hamilton, appellant, and Mollie F. Hamilton, his wife, instituted this suit in the district court of Tarrant county, Texas, against the Texas & Pacific Railway Company, to recover damages for alleged injuries suffered by Mollie F. Hamilton, by reason of her falling from a defective platform of the defendant railway company at Ben Brook, in Tarrant county, Texas, on defendant’s line, by reason of its…

Tried below before the Hon. J. M. Hall. The appellee, plaintiff below, sued for the value of certain merchandise alleged to have been seized and converted by the appellant, McKee, acting as United States marshal for the northern district of Texas, and against the other defendants as sureties upon his official bond. Service was perfected to the March term, 1885.

<p>Ajppeal from Coryell. Tried below before the Hon. T. L. ¡Nugent.</p> <p>The opinion states the case.</p>

Tried below before the Hon. John W. Townes. Appellant, in his application for continuance, set up the facts that he expected to prove by the witness Kendrick. The witness had been properly subpoenaed on 24th of August, 1884, not having disobeyed a subpoena before.

Tried below before the Hon. Gr. H. Noonan. This suit was brought by appellant to recover $2,000 damages, alleging that on the 28th day of July, 1882, appellant and appellee entered into a written agreement, whereby appellee for a valuable consideration agreed and bound herself to give appellant possession on March 1, 1883, of certain premises situated in the city of San Antonio, Bexar county, Texas, under a lease for the term of five years thereafter.

<p>Error from Bexar. Tried below before the Hon. L. H. Walthall, Special Judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. Thomas M. Paschal. Frieberg, Klein & Co., on the 23(1 day of June, A. D. 1884, obtained judgment by default against the appellant in a justice court of Uvalde county, in a suit wherein they were plaintiffs, for the sum of $64.75 debt, with $1.30 interest, together with costs. Execution under the judgment was levied on one gray mare, the property of the appellant, of the alleged value of $150.

<p>1. Occupation tax — Constitution construed.— Construing that portion of the act of March 24, 1881 (Gen. Laws, p. 85), which undertakes to impose on “ every firm, person or association of persons, owning or running any palace, sleeping or dining-room cars not owned by the railroad company in this state,” an annual tax of $2 per mile, etc., held:</p> <p>(1) The tax contemplated is not a tax on property, which under the constitution must be taxed in proportion to value; nor is it a tax on persons, which must be uniform on the same class of subjects, to be legal.</p> <p>(2) It is an occupation tax.</p> <p>(3) By its terms the act applies to three classes of persons, viz.; 1st, to the owner of a car who runs it, or permits it to be run, on a railway; 2d, to others, not the owners of the railway or cars, who run them; 3d, to railway companies or others, who run such cars on their own roads, and as to whom the law imposes no tax.</p> <p>(4) The subject of an occupation tax is the thing or business done; and, so far as regards the business of running a Pullman sleeping car, it is the same whether the car be run by the owners of the railway, and belongs to them, or be run and owned by those who have no interest in the railway. It results, that a tax imposed on one running a sleeping car over the railway of another, when the same law exempts from tax the act of running the same description of cars over the road of the car owner, is not a tax equal and uniform, but is violative of the constitution, and cannot be collected.</p> <p>(5) The fact that the railway company which owns and runs .its own sleeping cars, over its own road, pays an ad valorem tax, cannot affect the question.</p> <p>(6) Nor can the constitutional requirement in reference to occupation taxes be evaded by the fact that one pursuing the occupation pays an income tax. Neither can it be evaded on account of the fact that an occupation tax is paid by the party on a business kindred to that for pursuing which the occupation tax is claimed. Citing Kelly v. Dwyer, 7 Lea (Tenn.), 180; Burch v. The Mayor, 42 Ga., 596; Hirsh v. Commonwealth, 21 Gratt., 785, and other cases noted in the opinion.</p> <p>2. Taxation.— An occupation tax which is not equal and uniform, but which exempts one class of persons pursuing an occupation, and imposes a tax on others pursuing the same occupation, is unconstitutional, void, and can be enforced against neither class of persons.</p>

<p>Appeal from Comanche. Tried below before the Hon. T. B. Wheeler.</p>

Error from Hill. Tried below before the Hon. Jo Abbott. Suit brought by Webb against the plaintiff in error to recover land, described in the petition as it was in the deed offered, which will be seen in the opinion. The defendant’s pleading consisted in a general demurrer, general denial and plea of not guilty.

Tried below before the Hon. J. C. Mathews, Special Judge. Suit was brought by Caruthers on a written contract with the defendant for the delivery of cattle. The contract was dated “ this 24th, 1880,” and was attached to the petition and filed with it.

Tried below before the Hon. Wm. Kennedy. Appellants’ second amended original petition alleged that about September 1, 1883, plaintiff bought of defendant several tracts of land, described in the amendment by metes and bounds, and also one thousand and seventy-five head of sheep, for the gross sum of $13,353.99, the amount to be paid in amounts, and at times, as described in the petition; that the one thousand and seventy-five head of sheep were sold and bought at the price…

Tried below before the Hon. Thomas M. Paschal. The appellee sued to recover for damages caused to his land by the defective construction of appellant’s bridge, whereby it was alleged an overflow of the stream resulted, which inundated and destroyed his growing crops. Verdict and judgment for $350. Eon-professional witnesses were permitted to testify as to their opinion of the want of proper skill in the construction of the bridge, and this was assigned as error.

Tried below before the Hon. B. W. Bimes. This suit was brought by the appellant to recover of the defendants the land described in his petition, originally granted in 1833 by the Mexican government to Maximo Moreno, as eleven leagues situated in Bell county, of which appellant alleged he was the owner.

Tried below before the Hon. B. W. Himes. The following sketch gives an approximately accurate idea of the Maximo Moreno survey, the true location of which was the subject of controversy: On the 29th day of August, 1877, appellee filed her petition in the district court of Bell county, in an action of trespass to try title against appellant and others to the tract of land set forth in plaintiff’s petition. The defendants answered by a general denial and plea of not guilty.

Tried below before the lion. T. L. Wugent. Collins brought this suit against appellants and J. M. Lanham, sheriff of Coryell county, to enjoin a sale of the lands described in the petition, by virtue of an order of sale issued out of the county court of Galveston county.

Tried below before the Hon. M. D. Priest, Special Judge. This suit was brought (on April 13, 1883) by appellant against appellees, H. S. Broiles, Max Elser, U. C. Brooks, J. P. Smith and 5. M. Farmer. The first three defendants were members of the board of aider-men, and constituted the board of health of the city of Fort Worth; Smith was the mayor, and Farmer the marshal of the city.

Tried below before the Hon. Jno. 0. Townes. Suit brought by James B. Arrott against W. W. Parks, James 0. Ramsey and William Ramsey on the 24th of April, 1880.

Tried below before the Hon. W. H. Bullock, Special Judge. Mensing, Stratton & Co. recovered a judgment in the district court of Wise county against E. P. Gaines for $213.61, foreclosing a vendor’s lien upon certain lands described therein, and for costs. An order of sale was issued thereon August 12,1884, which was returned by the sheriff satisfied.

Tried below before the Hon. A. J. Hood. On the 3d day of March, 1883, Ben. 0. Henry executed a deed of assignment to appellant, M. 0. Wert, conveying certain personal property for the benefit of creditors. On the 7th day of March, 1883, the appellees sued out a writ of attachment against Ben. C. Henry, which was, on the same day, levied on the goods, valued at $1,136.67. On the 10th of March, 1883, the assignee, M. 0.

Tried below before the Hon. W. E. Collard. Appellee Lewis, plaintiff in the court below, brought this suit against the appellant, Cone, for the alleged wrongful and malicious seizure and conversion of a dray, the property of Lewis, who was the head of a family, a licensed drayman in the town of Bockdale, and owned no other vehicle. Plaintiff claimed $50 for the value of the dray, $100 special damages for the interruption of his business, and $1,000 for exemplary damages.

Tried below before the Hon. T. M. Paschal. On Hay 11,1884, Hoffman brought this suit of trespass to try title against Blume, to recover the tract of land described in the petition. June 6, 1884, Blume answered by plea of not guilty. Hoffman claimed title as follows: 1st. Deed from Dolle and wife to Blume, dated June 3, 1882. 2d. Deed from Blume to Behusch, dated July 1, 1882. 3d. Deed from Behusch to Hoffman, dated April 7, 1884.

Tried below before the Hon. B. W. Rimes. This suit was by the Belton Brick Manufacturing Company against the appellant, to recover for the value of certain brick sold to appellant by appellee, through appellee’s agent, one Butler. The suit was to enforce a lien claimed by reason of the use of the brick by appellant in constructing its works, which lien seems to have been fixed under the statute.

Tried below before the Hon. A., W. Morsund. Suit by appellees against A. Tom, T. A. Sloan and W. H. Ellis, in trespass to try title, for a tract of land described in the petition of appellees as “six hundred and forty acres, patented to Eaymond & Smith, assignees of Wm.

Tried below before the Hon. J. M. Hall. This is an action brought by appellant against appellee in justice court of precinct No.-1, Bosque county, Texas, on August 14, 1882, upon a subscription executed by appellee, about February 11, 1881, wherein appellee agreed, with others, to pay the money, $100, opposite his name on the subscription list, which was for the purpose of procuring right of way for appellant as shown in the subscription.

Tried below before the Hon. Jo. Abbott. This was a suit by A. W. Childress against the Texas Central Railway Company for damages for killing a cow of plaintiff’s by defendant’s engine. There was a judgment in the justice’s court for plaintiff for $40 and costs, from which defendant appealed to the district court of Bosque county, the appeal bond being filed on July 18, 1883.

Tried below before the Hon. T. L. Hugent. The opinion contains all the important facts to which the principles of law announced apply.

Tried below before the Hon. Geo. H. Noonan. On February 23, 1883, appellee brought this suit against appellant to recover damages for a libel; alleging that on the 7th day of January, 1883, he then being a candidate for the office of mayor of the city of San Antonio, which election was fixed for and did take place on the 8th day of January, appellant published in its newspaper, the “ San Antonio Express,” a false, wicked and malicious libel, with the intent and for the…

Tried below before Chas. A. Jennings, Esq.,Special Judge. This suit was brought March 1,1858, in Hill county, by defendants in error against plaintiffs in error, Delk and others, for the recovery, of twenty-four labors of land in Hiii county, granted July 6,1835, to Harriet and Lucretia Punchard, heirs of Joseph Punchard, deceased, having been received as colonists.

Ebeob from Comanche. Tried below before the Hon. W. A. ■ Blackburn. Defendants in error, who were plaintiffs in the court below, sued to recover the value of certain property alleged to have been levied on by plaintiffs in error under a writ of attachment sued out by them against Fernandez & Ackerman.

<p>1. Will — Construction — Restraint on alienation — Executory devise — Limitation.— A will bequeathed to the son of deceased certain real estate, but with the restriction that up to the age of twenty-five years he should only have the right to receive and dispose of the revenue thereof, without the right to mortgage, incumber or sell the property. In case the son died before reaching the age of twenty-five years, the property should pass in full right and free from all charges to the daughter of deceased. The son mortgaged the property, and died before arriving at the age of twenty-five years. Held:</p> <p>(1) That the intention of the testator is the first and great object of inquiry in the construction of a will, and must govern, provided it is not inconsistent with the rules of law.</p> <p>(2) That it is, perhaps, settled law, that general restraints upon alienation are void, and the devisee in fee takes the estate free of the restriction. Not so as to partial restraint, such as a prohibition of sale to particular persons, or before arriving at a named age. As to the validity of such restrictions the authorities differ. (See authorities cited in the opinion.) It is not necessary to canvass the decisions upon this subject for the purposes of the present case.</p> <p>(3) Even if the restriction on alienation were stricken out, the result would be that the son would take an estate in fee-simple, subject to be defeated, and to pass to the daughter in case he died before arriving at the age of twenty-five years.</p> <p>(4) That the testratrix was authorized to make such a disposition of the property; it is the most common form of executory devise, and from time immemorial has been sustained by the courts of England and America, when there was no prohibiting statute on the subject. It is well recognized in this state (see cases cited in the opinion), that a devise like the present, limiting a fee after a fee, is legal when the contingency upon which the first estate is to expire must necessarily happen within a life or lives in being, and twenty-one years thereafter. In this case the limitation did not necessarily extend to the full life of the first devisee, but in case he lived for about six years from the making of the will, the property was to be absolutely at his disposal, the remainder in favor of the daughter not taking effect.</p> <p>(5) If the provision as to alienation be regarded as void, the will would then be construed as if no such restriction had been imposed, and the son left with the power of selling or mortgaging all the interest or title he held in the property under the will; that is, a fee-simple estate, liable to be defeated upon the contingency of his dying before reaching twenty-five years of age. The mortgage then furnished the mortgagee security only to the extent of the son’s title; in case the son survived bis twenty-fifth birthday, the entire fee-simple was pledged for the debt; otherwise the security could last only to the death of the son.</p> <p>(6) The mortgage not being foreclosed during the life of the son, upon his death there was no estate in the property held by his administrator subject to be sold in satisfaction of the mortgage, and a purchaser under the foreclosure sale acquired no title, for the estate passed to the daughter immediately on the death of the son.</p>

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

<p>Appeal from Dallas. Tried below before the Hon. George H. Aldredge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. D. P. Marr. ■ Appellants brought this suit in trespass to try title as well as for damages, and claimed judgment to recover of appellees survey No. 514, containing six hundred and forty acres, in La Salle county, Texas, originally granted and patented to the heirs of B. W. Toliver.

Kinney. Tried below before the Hon. Thos. M. Paschal. Suit by Emma Kornrumpf, joined by her husband, Edward Kornrumpf, against Ann Ross, in trespass to try title to a town lot. At the March term, 1883, of the court, Ann Ross filed plea of not guilty and general denial.

Tried below before the Hon. Jo. Abbott. October 2, 1882, appellee brought this suit against appellants, to recover damages for an alleged wrongful seizure and sale of a part of a stock of groceries, claimed to have been purchased by appellee from William Price.

Tried below before the Hon. A. S. Wallier. Appellee brought this suit to recover damages for injuries received while in its employment as a section hand, and claimed to have been caused by the negligence of Wilson, the section boss, who it is claimed had full power to employ and discharge' the servants under him.

Tried below before the Hon. T. B. Wheeler. The opinion states the case, except so much as relates to the witness Simerl. The fact was sought to be established by that witness that the plaintiff had secreted himself to avoid the service of process to take his answers to interrogatories.

Tried below before the Hon. Jo. Abbott. S. C. Upshaw and John P. Cox filed their application in the county court of Hill county, on April 15, 1883, for the probate of the last will and testament of James H. Martin, wherein they alleged that James H. Martin resided in Hill county, Texas, and that he died on March 28, 1883, leaving an estate of about $8,000 or $10,000; that deceased left a will in which S. C. Upshaw and John P. Cox were appointed executors of decedent’s will;…

Tried below before the Hon. T. L. Nugent. On the 19th of October, 1882, appellant, as landlord of appellee, sued out a distress warrant against him before a justice of the peace of Coryell county. Appellant claimed $625 for advances made to his tenant to enable him to make the crop, and also the rent of twenty-three acres of cotton and ten acres of corn, at one-fourth of the crop raised.

Tried below before the Hon. R. Maltbie. Appellee and her infant son, Ben.

<p>1. Limitations — Statutes construed — Trust sale — Injunction.— More than four years after the maturity of a promissory note, an injunction was obtained to restrain a trustee from selling land conveyed to him by trust and to secure its payment. It was not pretended that the note had been paid, but it was claimed that the right to enforce collection was barred in limitation. Within less than three years before the injunction was applied for, a portion of the principal had been paid, and the maker obtained a written release of a portion of the land, which in terms retained and continued the express lien on the remainder of the land. The debt was for money loaned, and the maker of the note asked for and obtained, verbally, indulgence in extension of time for payment, only a short time before seeking in this suit to enjoin its collection. Held:</p> <p>(1) It is well settled that there is no essential difference between a mortgage with power of sale in default of payment of a debt which ittis given to secure, and an ordinary mortgage, in reference to the right to foreclose, either through a judgment or decree of court, after the period of limitation has elapsed, if that be pleaded as a defense. The lien given by either cannot be enforced through a judgment or decree, after the debt it is given to secure, is barred.</p> <p>(3) The statutes of limitation, in actions for debt, affect the remedy only. Citing Wood v. Welder, 42 Tex., 409; Grigsby v. Peak, 57 Tex., 147.</p> <p>(3) It is but reasonable to infer, since the legislature has declared what shall be the effect of the statutory bar in “actions or suits” relating to the title to real property, and has made no provision declaratory of a similar effect in other causes of “ actions or suits ” mentioned in the statute, that it was not the legislative purpose to give the same effect to the bar in the latter classes of cases.</p> <p>(4) Under the statutes of limitation now in force, the same rule which applies in cases where the failure to bring suit within the prescribed time is the sole defense, will not apply in cases in which that, coupled with adverse possession of the thing in controversy, whether realty or personalty, is made the ground on which the defense is based. In the one case, the statute denies to the holder of the claim the aid of the courts for its enforcement, but does not declare the claim satisfied; in the other, the facts which create the statutory bar destroy the right of the former owner, and vest title in the possessor.</p> <p>(5) The statute of limitations which applies to a money demand operates upon the remedy when its enforcement is sought by “ suits or actions in courts." It does not deprive the creditor of a remedy when he had provided by contract to enforce, through a trust deed, the payment of his claim without the assistance of the courts. Citing Jordan v. Peak, 38 Tex., 429; Stewart v. Mackey, 16 Tex., 57, and Chipman v. McKinney, 41 Tex., 78, cited with approval.</p> <p>(6) On the right of a creditor who, by contract, has stipulated for the sale of property conveyed in must to secure his debt without the intervention of the courts, the rules of equity regarding laches and stale demands apply, and not the present statutes of limitation.</p> <p>(7) The plaintiff, while admitting the justness of an unpaid debt secured by his trust deed, could not have relief by injunction to restrain the sale of the trust property for its payment, without violence to the rule that he who seeks equity must do equity.</p> <p>(8) The judgment of the lower court perpetuating the injunction, which restrained the sale by the trustee of the trust property to satisfy the debt, was error requiring a reversal of the case.</p> <p>2. Cases reviewed.— Sprague v. Ireland, 36 Tex., 655; Blackwell v. Barnett, 52 Tex., 331; Lord v. Morris, 18 Cal., 483; Low v. Allen, 26 Cal., 143; Grant v. Burr, 54 Cal., 298, reviewed.</p> <p>3. Cases approved. — Stringham v. Brown, 7 Iowa, 33; Walter v. McCockey, 38 Md., 75; Tooke v. Newman, 75 Ill., 215; Hemphill v. Watson, 60 Tex., 682, and Elder v. Bank, 12 Kansas, 288, cited and approved.</p> <p>4 Case overruled.— Blackwell v. Barnett, 52 Tex., 331, on the question of limitation here involved, overruled.</p>

Ebbob from Olay. Tried below before the Hon. B. F. Williams.

Tried below before the Hon. W. E. Collard. This was a motion by A. A. Burck against George E. Burroughs and the sureties on an appeal bond given by said Burroughs, filed in the county court of Milam county, for that court to render judgment against the sureties, who, with said Burroughs, are appellees here, for the amount of the judgment appealed from in the case of said A. A. Burck 0.

Tried below before the Hon. T. M. Paschal. Suit by appellees in the district court of Kinney county on the 28th day of February, 1882, on a sworn account, for the sum of $3,038.30, with interest on $3,015.56, at eight per cent., from January 1,1882. The petition alleged that the defendant had refused to pay plaintiffs’ debt, to their damage $3,450.

Tried below before the Hon. B. W. Rimes. Appellee instituted this suit in the district court of McLennan county to recover damages for personal injuries alleged to have been received by him as the result of alleged defective machinery of a hand-car.

Tried below before the Eon. Geo. H. Noonan. Nathan Underwood brought this suit for damages for personal injuries alleged to have been sustained by him while a passenger, in consequence of defendant’s negligence. The damages claimed were: “For loss of time from his business from July 5, 1883, to filing of petition...........................................................§2,500 00 For doctors’, medical and nurses’ bills.........................

<p>Appeal from Anderson. Tried below before the Hon. F. A. Williams.</p>

<p>1, Jurisdiction — Venue—Statute construed — Proof for registration.— Suit was brought in Texas by a non-resident plaintiff, against a non-resident defendant, both of whom had once been partners, to prove up for record (under art. 4354, R. S.) an instrument in writing which on its face certified that the defendant had given up to plaintiff all claims which once belonged to both, and also all claims to land which belonged to both. The firm did own lands in Texas, but not situate in the county where the suit was brought. On plea to the jurisdiction in the naturé of a plea in abatement, calling in question the power of the district court to adjudicate upon the subject-matter, held:</p> <p>(1) The statute in such a case does not fix the venue, and the parties being non-residents, having no domicile in Texas, the venue must be determined by general rules applicable to the matter, independent of statute.</p> <p>(3) The cause of action was not local, but transitory, though the result of the action might, on some future contingency, affect the title to land, indirectly.</p> <p>(3) The cause of action was one regarding which jurisdiction could be exercised in the district court of any county in which service could be obtained on the defendant, or where he might appear and, by making defense, waive service.</p> <p>(4) The instrument was such as, in so far as it conveyed land, was entitled to be admitted to record, if properly authenticated; and the fact that on its face it attempted to dispose of choses in action could not affect the right to have it recorded as an entirety.</p>

<p>1. Jurisdiction — Administration — Probate matters. — The constitution of the state in force in 1873, which conferred on district courts original and exclusive jurisdiction for the probate of wills, among other enumerated powers, expressly gave that to transact all business appertaining to the estates of deceased persons, and to settle, partition and distribute the same. In the exercise of such powers the district courts were courts of general jurisdiction.</p> <p>2. Statutes construed — Estates op decedents.— Though the statute in force in 1872 provided that property reserved from forced sale by the constitution and laws of the state, or its value if there be none such, should form no part of the estate of a deceased person when a constituent of the family survived (Pasch. Dig., 5487), yet this was so only in the sense that such property constituted no part of the estate subject to the payment of debts. In some other respects it stood in the same relation to the estate as did other property.</p> <p>S. Jurisdiction.— If the district court sitting in probate under the constitution of 1869, and the statutes in force, in determining what property of an estate was exempt from the payment of debts of the deceased, and to whom it was exempt, decreed, after jurisdiction over the estate had properly attached, that land not in fact the exclusive property of the deceased was exempt from the payment of debts, and vested title thereto formally by decree in the surviving widow, that judgment was not void, but, while unreversed, vested title as to the heirs, and is not subject to collateral attack,</p> <p>4. Same — Jurisdiction.— In such case the court had power, derived from the constitution, to settle the estate, which involved the power to adjust by decree the rights of persons claiming as creditors or heirs, and to enforce such decree; and this power extended to the entire estate, whether exempt from forced sale or not.</p> <p>5. Jurisdiction — Probate matters.— From the same source the district courts in 1873 derived power to distribute the estate of a deceased person, which involved the power to determine, not only what should be distributed, but also to whom, and if their judgments regarding these things were erroneous, they were not therefore void.</p> <p>6. Same — Exempt property.— If, in the exercise of its general jurisdiction over an estate, the district court decreed, in lieu of exempt property not belonging to the estate, that title to land should be vested in the surviving widow, though its decree may have been erroneous, it was conclusive as against those interested in the estate, until reversed on appeal or error, or set aside by some proceeding having that object in view.</p>

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

Tried below before the Hon. F. A. Williams. The conflicting testimony, and its amount, contained in the lengthy record in this cause, preclude anything but a very general statement of it.

<p>1. Parties. — A defendant, in trespass to try title, in possession by virtue of his wife’s claim, to the property, has no right to suspend proceedings in the cause until his wife can be made a co-defendant. His possession by virtue of his wife’s claim may be defended without the necessity of making her a party. Her rights would not be concluded by the judgment, and the disadvantage which might result from her non-joinder as a defendant would affect the plaintiff alone.</p> <p>2. Practice in supreme court. — The failure of the court to make a finding, when the case is tried without a jury, upon an issue fairly involved in the pleading and evidence, where the complaining party has not requested a finding upon it, cannot be made a ground of error when urged for the first time in the supreme court.</p> <p>3. Improvements in good faith.— When, under a plea of improvements made upon land in good faith, the defendant fails to show the value of the land, without regard to the improvements, and there is no evidence on that point, he cannot recover, since his right under the statute is only to recover the difference between the value of the land with, and its value without, improvements.</p>

<p>1. Contract — Evidence of consideration. — When no consideration is recited in a written contract, the rule at common law permits the consideration to be shown by extraneous proof; and such proof may be used to vary the consideration of which there is a recital. The rule is as well established as that other general rule, that parol evidence cannot be resorted to for the purpose of varying or contradicting a written contract.</p> <p>2. Same. — When the whole consideration is not expressed in a written contract, parol evidence is admissible to supply the deficiency, but it cannot establish a consideration inconsistent with that expressed in the written contract. The right to vary or add to the consideration of an instrument by parol is, as a general rule, confined to the parties to the contract.</p> <p>3. Same.— It is not necessary that allegations of fraud, accident or mistake should be made to account for the failure to express the full consideration; the right to show it by parol evidence, under the rules above announced, exists at common law. Hence, when in a suit on a promissory note, and to enforce a lien expressed in it, upon a tract of land for the purchase money for which it purported on its face to have been given, it was alleged in the answer that the vendor represented falsely to the maker of the note, who relied on his representations, that certain specific articles were on the land, and which formed part of the consideration, and that certain improvements existed on the land, which had in fact never been made, held, that the allegations were sufficient to let in proof of the real consideration as between the original parties to the transaction, or as against a nominal plaintiff suing on the notes, if the original vendee was the real beneficiary. Following Robertson v. Guerin, 80 Tex., 317.</p> <p>4. Variance.— A deed on its face purported to be executed by A. B. M. and his wife, S. A. M. The certificate of privy acknowledgment before the notary, annexed thereto, showed that it had been acknowledged by “A, M,, wife of A. B. M.” In a suit to foreclose a lien reserved in the body of the deed to secure the payment of purchase money, the wife being described in the petition as S. A. M., held, that the deed was admissible in evidence, the apparent variance not being of a character to surprise or mislead the adverse party, the original of the deed being in the possession of the defendant. Following McClelland v. Smith, 3 Tex., 210.</p>

<p>1. Community property — Exemption — Executor.— A wife died leaving community property, and her husband married again; at his death he left an insolvent and exempt estate, which, with the community estate of himself and his first wife, was put into the hands of an executor. The executor used part of this community estate to pay debts contracted by the deceased husband after the death of his first wife. Held;</p> <p>(1) That the misapplied money should be charged to the husband’s portion of the community estate. The executor held the joint property of two persons ; if he paid out of the community property of the first marriage, separate debts of the husband, then, in dividing the remainder between the heirs of the husband and the heirs of the first wife, the share of the latter could not be decreased by such payments. It makes no difference that there would not be left in the husband’s estate sufficient to make an allowance in lieu of exempt property. That allowance must be raised from the estate of the decedent. R. S., title XXXVII, ch. 18.</p> <p>(3) That though the executor paid debts over which the exemptions had priority, they were chargeable upon the same interest and estate from which the exemptions were to be taken; they could in no event become a charge upon the community estate of the first wife.</p> <p>(8) That recovery for the misappropriation must be had against the executor.</p>

Tried below before the Hon. W. H. Stewart. The facts, so far as necessary to an understanding of the case to which the principles announced apply, will be found, in the main, contained in the opinion. The litigants were rival candidates for the office of sheriff of Galveston county at the general election of ¡¡November 4,1884. The official returns showed that Owens received 2,025 and Jennett 1,985 votes for sheriff at that election.

<p>Appeal from Anderson. Tried below before the Hon. F. A. Williams.</p> <p>The opinion states the facts.</p>

Tried below before the Hon. W. P. McLean. This suit was instituted by appellant to recover damages from a railway company for having caused his discharge from employment by J. M. De Ware, who owned a line of wagons engaged in hauling freight to and from defendant’s depot and warehouse, at Jefferson, and also for defamation of plaintiff’s character by the railway company through its agents.

Tried below before the Hon. Edwin Hobby. Suit was brought by James I. Perkins and W. E. Camp, trustees of creditors of ¡N. Ellenstein, against the Crescent Insurance Company, for the value of a policy of insurance for $1,500, issued to H. Ellenstein, on a stock of general merchandise, situate in the town of Alto, Texas, and which was destroyed by fire on the 18th day of ¡March, 1883. The policy was dated September 13,1882.

Wood. Tried below before the Hon. Felix J. McCord. Appellee sued for damages for personal injury caused by negligence of appellant and its servants and agents, alleging that about the 26th of February, 1883, he paid the fare demanded of him by the conductor of appellant’s train for a first-class seat on appellant’s train from Tyler to Mineóla; that appellant, through the conductor, received his fare, and thereby agreed to safely transport and deliver appellee at the…

Tried below before the Hon. Win. Stead-man, Special Judge. Suit against appellant for damages for having been, as appellee alleged, improperly put off of a train of defendant’s cars a short distance from Longview Junction on the night of the 31st of December, 1881.

<p>1. Replevy bond — Judgment—Limitation.—Property attached during the pendency of a suit was replevied by the owner. Judgment was rendered against the owner, but the replevy bond had been lost between the date of the judgment and the time when it should have been indorsed “forfeited/’ the property not having been delivered according to the stipulation of the bond. More than four years later suit was brought to substitute the bond and obtain a judgment of forfeiture upon it. Held:</p> <p>(1) That the substituted bond would occupy the position of the one lost, which, never having been forfeited in the manner prescribed by statute, was not a judgment against the sureties who signed it.</p> <p>(3) That, had the bond been indorsed according to the statute, it would have required ten years to bar an action upon it; but being a mere moneyed demand against the obligors, under the then existing statute, four years barred a recovery on it.</p>

<p>1. Practice — Exemption — Third parties. — A daughter claimed a piano levied on as the property of her father to satisfy an execution against him, and filed her bond and affidavit under the statute for trial of right of property. When levied on, the piano was held by a railroad company as the property of the father. An issue was made up, the claimant asserting that the property was her own; six months after she filed a plea setting up that the piano, if the property of her father, was exempt, being part of his household furniture. Held:</p> <p>(1) That this last plea was no plea in abatement, since it went to the merits of the action; and if a plea in abatement, it was not filed in due order, since it came after an issue had been made up between the parties.</p> <p>(2) That the plea alleged no fact pertinent to the issue of title and should have been disallowed. Not having been in possession of the property at the time it was seized, by claiming that the title was in her father, claimant put herself in the position of a third party setting up an exemption which the defendant in execution did not assert.</p>

<p>Appeal from Oamp. Tried below before the Hon. W. P. McLean.</p> <p>The opinion states the case.</p>

<p>Appeal from Harrison. Tried below before the Hon. J. Gr. Hazel-wood.</p>

Tried below before the Hon. J. P. Bichardson. Appellees instituted this suit January 9, 1877, against the state of Texas, under the act of August 15, 1870, to secure the confirmation of what was claimed to be an imperfect title to five and a fraction leagues of land situated in Hidalgo county.

Tried below before the Hon. R. R. Gaines. On the 27th of April, 1883, the appellees, Holmes & Crain, recovered a judgment in the district court of Lamar county on their plea in reconvention in the case of Eppstein & Co. v. Holmes & Crain et al., against appellants and M. Yesner, surety on attachment bond, for the sum of $70.05, being the amount of actual damages as found by the jury over and above appellants’ debt, and against appellants alone for $1,300 vindictive damages.

<p>1. District court — Dismissal on appeal — Trial de novo.— Plaintiff recovered in a justice’s court and defendant appealed to the district court. After the cause had been docketed in the district court the papers were lost, and the plaintiff asked leave of the district court to substitute, which was granted. At the next term, plaintiff, having declined to substitute, asked that the appeal be dismissed. The court ordered the appeal dismissed from, the docket without prejudice to the judgment rendered in the justice’s court. Held:</p> <p>(1) That unless a case taken from a justice to a district court is dismissed for some illegality, or insufficiency in the manner of bringing it up, it stands for trial de novo in the court (R. S., arts. 811, 312, 817, 1294), and is conducted as if originally brought in the district court.</p> <p>(2) That the justice’s judgment is vacated and the plaintiff must prove his case anew; he may be dismissed for any cause that would have operated a dismissal had the case been continued in the district court. If the plaintiff is dismissed he is as effectually out of court as if his suit had never beau commenced. No order could be made in the district court reviving the vacated judgment of the justice’s court.</p> <p>(3) That the destruction of papers does not of itself take a cause out of court, but an order to that effect must be entered up. It was primarily the duty of the plaintiff to make the substitution, as it was to his interest that the cause should proceed.</p>

<p>1. Negligence — Master and servant.— When an employer knows that the service to which he subjects an employee is dangerous (the service being one to which the employee is unaccustomed, and of which he is ignorant), it is his duty to inform the employee of the danger, and, if injury results from his neglect to so inform him, the employer is liable. The failure of the employee to ask for information does not vary the liability.</p> <p>2. Same.— If the. servant’s ignorance of the danger and of the means provided by the employer to avert it caused the injury, the servant being ignorant and uninformed of the dangers attending the service, then the employer’s liability would be neither defeated nor lessened by the fact that the negligent acts of fellow-servants contributed to the injury.</p> <p>3. Same.— To the inexperienced servant entering upon a dangerous service the master owes the duty, not only of full information, but also of protection from a known danger as far as reasonably practicable. Both duties are imperative ; and if a failure to perform one of them results in injury, liability cannot be avoided by showing a faithful performance of the other.</p> <p>4. Charge op court — Negligence. — In a suit by one who, while in the employ of a railway company, received injury when engaged in the performance of thejwork assigned him, the court charged, in effect, that, if the plaintiff, when he entered the employment, was inexperienced in the business, and did not know of the danger to which he was subjected, and was not informed as to the course of the business, and the rules, regulations and usages under which it was conducted, and that defendant company and its employees who had control over him knew that he was so inexperienced and uninformed, and that they did not warn him, and that he was thereby subjected to a danger of which he did not know, and which he would have avoided had he been so warned, and which was not open to his observation had he made proper use of his faculties and information; and that if, under such circumstances, the injury was inflicted on plaintiff, the company would be liable. Held, that there was no error.</p>

Tried below before the Hon. W. P. McLean. This suit was originally instituted in the county court of Marion county, on the 5th of October, 1877, against A. Bruhn and W. J. Williams, to recover judgment against them on a certain promissory note for $328.95, executed and delivered by them jointly on the 26th day of March, A. D. 1874, due sixty days after date, and bearing interest at two per cent, per month after maturity.

Tried below before the Hon. W. P. McLean. The appellee, on April 7, 1885, filed suit in the district court of Marion county, Texas, against appellant, on a fire insurance policy issued by appellant.

Tried below before the Hon. W. P. McLean. The opinion states the case.

<p>1. Probate — Jurisdiction of district court.— It is well settled that the district court has no original jurisdiction to revise the proceedings of a county court sitting in matters of probate; its jurisdiction in this respect is entirely appellate. Following Franks v. Chapman, 60 Tex., 46.</p> <p>2. Certiorari — Bond.— Our statutes positively require that an applicant for a certiorari from the district to the county court shall give a bond for the costs of the proceeding, or for the performance of the judgment of the district court in case it should be against him; without one of these bonds the appellate jurisdiction of the district court does not attach. R. S., 290, 291, 292.</p> <p>3. Jurisdiction — Administrator’s bond — District court. — An original suit on an administrator’s bond cannot be brought in the district court until the administrator has been discharged. During the pendency of an administration in a county court, that court has entire supervision of the estate, and has full power to protect all parties concerned. This is the case even when the estate has been practically closed, if the final account of the administrator has not been passed upon. •</p> <p>4. Fraud — Suit to annul a judgment.— The heirs of an intestate alleged in their petition that a certain party instituted suit against the intestate on a fictitious claim, and fraudulently employed an attorney to appear for him and confess judgment; that intestate had no notice of the action, and the attorney confessed judgment without his knowledge. That afterwards the party obtained letters of administration on intestate’s estate, and fraudulently allowed the judgment to be proved up against the estate. Held:</p> <p>(1) That such a judgment was liable to be set aside and annulled by a direct proceeding instituted by a party to the suit whose rights were prejudiced by the fraud.</p> <p>(2) That a suit to annul the judgment commenced in the court where the alleged fraudulent judgment was obtained, against the parties who enacted and participated in the fraud, by the heirs of the party who suffered from it, was such a direct proceeding.</p> <p>(3) That had the attempt been merely to treat the judgment as a nullity in avoiding the proceedings had in the estate of intestate, then the attack would have been collateral.</p> <p>6. Jurisdiction — Pleading.—If one-good cause of action with a prayer for appropriate relief, within the jurisdiction of the court, appears in a petition, the court should not dismiss the cause.</p>

Tried below before the Hon. B. T. Estes. This was a suit of trespass to try title to lot Ho. 4 in block Ho. 42, in Texarkana, Bowie county, Texas. Defendant answered not guilty, and neither party demanding a jury, the case was tried by the judge and judgment rendered for defendant.

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

Tried below before the Hon. L. D. Bradley. Jerry O’Hare, the appellee, was an employee at the round house of the Houston & Texas Central Railway Company in Corsicana. His duties were to wipe engines, carry coal and sand, etc., from the round house to the machine-shop, and to do , anything and everything necessary to be done around and about the round house, including the coupling of cars, when called on by the foreman.

Tried below before the Hon. L. D. Bradley. This action of trespass to try title was begun by appellants, September, 1882, against M. M. Meazell, A. M. Smith, Jake Carroll, Frank Carroll, Nelson White, Isaac Carroll, and Gilber Jessie. In December, 1882, Meazell and Smith only having answered, judgment by default was taken against all except Meazell and Smith. An interlocutory judgment was entered, and the cause continued for final disposition as to the other parties.

Tried below before the Hon. L. D. Bradley. The following statement of the ease by appellant is correct*. In 1871, when appellant’s road was being constructed and was approaching Corsicana, W. G. Veal, acting as agent for the company, went to Corsicana to perfect plans for the location of a depot and to procure donations, etc. The citizens of Corsicana appointed a committee of which Maj. A. Beaton was chairman, to confer with Mr. Teal.

<p>1. Practice — Transfer — Use — Evidence. — A plaintiff stated in his petition that he was the owner of certain goods injured by fire while in the possession of a railroad company for shipment; that he had transferred to an insurance company one-half of his right of action against the road, and that his suit was for one-half the damages sustained, for the use of the insurance company. Held:</p> <p>(1) The. allegation in. the petition that the suit was for the use of the insurance company was proper to protect the interest of that company, though it did not make it a plaintiff, and it was not necessary to show by averment or proof how the insurance company acquired its interest; the owner of the property could recover without offering proof of the transfer to the insurance company.</p> <p>(2) If plaintiff had not averred that he was suing for the use of the insurance company, defendant might have defeated his suit by showing the transfer of the cause of action.</p> <p>(3) If defendant relied upon anything in the transfer, as that the cause of action had been devoted to an illegal purpose to defeat the action, it should have set it up in its answer.</p> <p>(4) The legal right of action remained in the owner of the goods, the petition disclosed a good cause of action, and the mere allegation by the plaintiff that the cause of action had been transferred did not compel him to negative the illegality of such transfer.</p> <p>(5) The transfer, when offered in evidence, could not be excluded on the ground that it contained other matter than the bare transfer itself.</p> <p>2. Evidence. — An agent of a railroad company, on the day after a fire, drew up a statement in the form of a certificate, giving the amount of plaintiff’s goods destroyed while in the possession of the company, etc. The railroad company introduced the deposition of the agent as to the same facts. Held, that the statement was admissible evidence to contradict the deposition in case it disagreed with the statement, and the attention of the witness was called to that fact.</p> <p>3. Revised Statutes, article 283 — Common carriers. — The statute provides that the transportation of goods by a common carrier shall be considered as commenced from the time the bill of lading is signed, and the common law-liability of such carriers shall attach from that time. Such a provision does not prevent a carrier from being liable before the bill of lading is signed; the liability commences from the time the goods are delivered.</p> <p>4. Common carriers — Acceptance.— The liability of a railway company for goods destroyed while in its possession depends on whether or not it has accepted them, and not on whether all has been done that ought to precede acceptance. If a carrier takes control of goods and puts its agents to preparing them for shipment, it has accepted them.</p> <p>5. Owner — Consignee.— When a consignor delivers goods to a carrier to be delivered to a consignee, prima facie the consignee is the owner; but when the consignor merely contracts with the carrier for the conveyance of the goods to a certain point, and the consignor is shown to be the owner before shipment, there is nothing to show a change of ownership.</p>

Tried below before the Hon. John C. Russell. This suit was filed September 30,1882, in the district court of ¡Nueces county, by John Redmond against John Gallagher, for trespass to try title to an undivided one-third interest in nineteen thousand five hundred and fifty-eight and one-half acres of land known as “ Casa Blanca,” originally granted to Juan Jose de la Garza Montemayor and his three sons. On the 16th of March, 1883, defendant filed a plea in abatement under oath.

Tried below before the Hon. L. D. Bradley. Wm. Croft, holding the naked legal title to two tracts of land in Navarro county, at the instance and request of P. A. Peck, the beneficiary, conveyed the same by warranty deed to William and Mitchell G-ray on the 8th day of .November, 1867, and the proceeds • of the sale, $1,000, were turned over to Peck on the 13th November, 1867.

Tried below before the Hon. Felix J. McCord. The appellee filed her original petition in the district court of Smith county, September 7, 1880, against appellant, alleging that appellant, by its servants, on December 16, 1879, negligently and carelessly, and wilfully and by gross negligence and carelessness, caused the death of Charles McCarthy, husband of appellee, without fault of his; that appellant gave to deceased, who was then and there the employee and servant of…

Tried below before the Hon. L. D. Bradley. On March 8, 1877, B. T. Whitehead, appellant’s intestate, sold to . one Martin Fisher the farm in controversy, for $300 cash and two negotiable notes, one for $600, due one year from date, one for $775, due two years from date, both bearing ten per cent, interest, conveying the land to Fisher by a deed retaining an express Lien for the payment of the notes.

Tried below before the Hon. Felix J. McCord. The appellants, plaintiffs below, brought this suit to restrain the sale, under attachment and order of sale, of certain cattle owned by appellant O’Neal, for the following reasons, to wit: 1st. Because said cattle were in the custody of the law, and not subject to said attachment. 2d. Because no valid levy had been made on said cattle or a portion of them by said attachment. 3d. Because a portion of said cattle were exempt from…

Tried below before the Hon. J. G. Hazlewood. On the 2d day of March, 1882, appellees, Reuben W. Oliver, John T. Maddox and James H. McLarfcy, as creditors of the community estate of J. J. Hichols, deceased, and his surviving wife, Mariah J. Hichols, who was administering the estate under the community law, filed their petition in the county court of Rusk county, Texas, alleging that they each held claims against the estate respectively as follows: R. W. Oliver’s claim was…

<p>Í. Evidence — Appeal. — The record must show distinctly what testimony was objected to in the court below, to enable the supreme court to revise the action of the inferior court in admitting it.</p> <p>8. Practice. — The assignment that the court below erred in overruling exceptions to the pleadings of the opposite party is too general to be considered where the pleadings and exceptions are numerous and lengthy. Errors not found on the record cannot be considered on appeal.</p> <p>3. Same. — An assignment of error that the court refused to give the special charges requested, the charges requested containing six paragraphs containing distinct propositions upon distinct lines of defense, does not specify any error with sufficient certainty for the court to act on each paragraph separately.</p> <p>4. Charge — Repetition. — In a damage suit against a railroad company the court in its charge repeated several times that a great degree of care was required of the conductor of a train in expelling an insane woman from a car. Held, that the repetition of the statement could do no harm unless it induced the jury to believe that the court thought there was evidence showing a want of the requisite care. The repetition was not of .a character to thus mislead the jury, and occurred only when it was necessary to qualify the principles applicable to the different phases of the case.</p> <p>5. Conductor.— A conductor may use only as much force as is necessary to lawfully expel a person from a car.</p> <p>6 Practice — Charge.— A defective charge can only be properly presented on appeal under an assignment bringing in review the action of the court in refusing a special charge covering the point.</p> <p>7. Evidence — Charge.— Testimony showing the mental condition of the injured party and the rough manner in which she was treated is sufficient to authorize a charge instructing the jury to consider mental suffering in estimating damages.</p> <p>8. Jury — Pleadings.— The jury may read the pleadings in their retirement, but it is not their duty to do so, and it is error to charge them that it is; but such error is not ground for reversal unless its result was to mislead the jury, and such a result is claimed on appeal.</p> <p>9. Charge.— See opinion for charge held not to assume a fact as proved.</p>

¡Navarro. Tried below before the Hon. L. ¡D. Bradley. The appellants, Stansell & Younger, were retail merchants, having two stores in ¡Navarro county, one at ¡Dawson, the other at Cross Hoads. They were indebted to W. D. Cleveland, the appellee, in the sum of 81,993.93, to wit: two notes, dated 1st of February, 1884, one for $937.51, due 1st of June, 1884, the other for $937.52, due 1st of July, 1884; also an open account for $118.60.

Geo. H. Al' dredge. This is an action of trespass to try title brought by Mary P. Fort-son, October 1, 1884, against J. H. Edwards, to recover fifty-four and one-half acres of land in Ellis county, a part of the Hamby Harris three hundred and twenty-acre survey. Pending the suit the plaintiff married H. A. Halbert, who is joined with her as co-plaintiff. Defendant answered by plea of general denial, “not guilty,” and a claim for valuable improvements made in good faith.

<p>1. Act of August 15, 1870 — Confirmation. — A number of parties brought suit against the state under an act passed August 15, 1870, seeking a confirmation of title and patent to land. Plaintiff relied on an instrument, which bore date in 1841, and which purported to be a confirmation of title to certain purchasers from the original claimant of the inchoate title. Held:</p> <p>(1) That it was essential to the right to bring suit under the act that the grant of land sought to be confirmed should have had its origin prior to December 19, 1836, and that the burden of proving that fact was on the plaintiffs.</p> <p>(2) That a recital in the paper title attached to the petition, that the act of sale was made by the alcalde under superior orders dated October 5, 1836, was not sufficient evidence that the title originated prior to December 19, 1836. Plaintiffs should have shown that their imperfect title had such an inception prior to December 19, 1836, as entitled them to be perfected under the former government. 47 Tex., 307.</p> <p>(3) The mere fact that the proper authorities ordered a sale of the land did not connect plaintiffs with the title; their title had its inception only when their bid was accepted, and they then acquired an equitable title which would have become perfect on payment of the purchase money. Unless they proved such an equitable title in themselves prior to December 19,1886, they could not sue under the act.</p>

<p>Appeal from Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>On the 6fch day of May, 1884, appellee filed a bill in the district court of Bexar county praying an injunction against appellant as collector of taxes, restraining him from selling a certain tract of land situated in the city- of San Antonio, upon which had been erected certain improvements, which together with the improvements appellee claims to be exempt from taxation under the constitution and laws of the state, as “used and owned exclusively for school purposes.” An interlocutory injunction was granted by the district judge in accordance with the prayer of the bill upon the same day.</p> <p>Upon the 2d day of February, 1885, appellant filed his first amended answer, in which he demurred to the bill for want of equity; denied generally the allegations of plaintiff’s petition; averred specially that the land, etc., was subject to taxation, and further averred that the appellee was carrying on a school for profit upon the said land in which large numbers of pupils were received, taught and boarded, and in which a number of teachers were fed and boarded and had their home; that the teachers so employed were members of the Ursuline Order of Nuns and lived upon the premises as a family, etc.; that the profits arising from the conduct of the school was subject to the control of said Ursuline Nuns or the heads of their order. And finally, that the appellee had paid and offered to pay no part of the taxes assessed upon the entire property.</p> <p>Upon the 9th day of March, 1885, the case was submitted to the court upon the law and the facts, which thereupon rendered a judgment for the appellee, with a decree perpetuating the injunction.</p>

<p>1. Tax sale — Revised Statutes, article 4711.— To constitute a valid tax sale of unrendered property subject to taxation, it is essential that the proper officer shall substantially comply with article 4711, Revised Statutes. See opinion for assessment and listing of such property held insufficient under the statute.</p> <p>2. Same.— The statute contemplates the performance by the assessor of a formal, solemn act, which is to constitute the basis for enforcing, if necessary for the collection of the taxes due on property, the divestiture of the owner’s title to it; and the act should clearly manifest upon its face its character and intention, by appropriate recitals, if its validity as an assessment is left to stand alone upon a schedule, disconnected from any other evidence than its existence in a blank book in which the assessor assessed the property in question.</p> <p>3. Same — Evidence.— The evidence of the act of assessment of the property must be made clearly to appear. If entered by the assessor in a blank book kept in his office, the mere use of such a book for such a purpose in no wise dispenses with the necessity of showing in his entries that he officially acted in the premises by a recital of the doing of all such acts as were necessary in order to subject the property thus assessed by him to sale for taxes due on it.</p> <p>4. Same. — The authority for the officer’s making the assessment is, that the property has not been listed to him as declared in the statute, and the assessment should show, in some appropriate manner, that it was done by the assessor in accordance with such authority, and that the assessment thus made was of property falling within the category of such as was thus subject to taxation and had accordingly been assessed by him.</p> <p>5. Same.— The lots of land must be definitely and distinctly described, and parol proof cannot supply the deficiency in the description or boundaries. These must be ascertained from what is written. The question is not one of intention, but of fact. What did the assessor do? On what specific lot was the tax laid ? These questions must be answered from the record.</p> <p>6. Tax title — Improvements. — If a tax title shows upon its face that it is void, it cannot be the foundation for a claim for the value of improvements made in good faith. Hatchett v. Conner, 30 Tex., 104.</p> <p>7. Good faith — Claim for improvements.— A possessor in good faith is one ■who not only supposes himself to be the true owner, but is ignorant that his title is contested by one claiming a better title. Houston v. Sneed, 15 Tex., 307. Such a one is entitled to the value of his improvements, though it should turn out that his title was defective, or that another had the superior title. The possessor must have reasonable ground to believe that he is the true owner. Dorn v. Dunham, 24 Tex., 366. This is a question of fact for the jury.</p> <p>8. Evidence.— One claiming under an invalid tax title, not void on its face, is entitled to adduce evidence as to improvements under his suggestion of • good faith, and to have that issue determined. French v. Grenet, 57 Tex., 273, and Wofford v. McKinna, 23 Tex., 36, approved, and Robson v. Osborn, 13 Tex., 298, questioned.</p> <p>9. Cases cited — Good faith.— Hutchins v. Bacon, 46 Tex., 408; Sartain v. Hamilton, 12 Tex., 219, and Hill v. Spear, 48 Tex., 583, cited to show that the question of good faith is one of fact. A party’s knowledge of the existence of an adverse title, superior, as it may turn out, to his own, or a knowledge as to the muniments of his own title with which the law ". charges him, and notwithstanding he knows the contents of them, and in fact that their defects are in law fatal to the validity of his title, is nevertheless not rigidly held responsible for his innocent errors as to the legal interpretation of either the validity and superiority of the adverse title, or of the inferiority of his own.</p> <p>10. Same.— It is a question of fact to be determined whether he did in good faith believe his own to be the true and superior title. The application of the maxim that “every man is held to know the law” is not as to this class of cases recognized, but expressly disclaimed by our courts.</p> <p>11. Same.— But good faith alone, regardless of the character of title under which a party claims, does not entitle him to recover the value of his improvements. If a person does not look to the character of the title by which he enters upon and improves land, but recklessly acts on the presumption that any deed conveys a title, he does so at his own risk. If there are no grounds for his questioning the fact tint he has neither a title nor the semblance of an apparent title, the law will conclusively presume that his claim is not based on good faith. Miller v. Brownson, 50 Tex., 583.</p> <p>12. Tax titles.— It is settled that tax titles, when in every respect complete, may constitute perfect assurances of title; they may constitute the basis of good title under the statute of limitation's independent of any judicial determination as to their validity; and under certain circumstances they are to be deemed colorable titles. Though invalid, a tax title is not necessarily without meritorious consideration, if the owner had reasonable grounds for believing that his title was good.</p> <p>13. Evidence — Good faith.— See opinion for' evidence held insufficient to sustain the presumption of law that there was a lack of good faith on the part of a claimant for the value of improvements.</p>

Appeal fz’om Hood. Tried below before the Hon. T. L. Hugent. This was an action to try title and to remove cloud upon plaintiffs’ title, bz’ought by Mrs. Minty Greer and her husband, S. D. Greer, and Mrs, Susan Womack and her husband, A. G. Womack, against the defendant E. B. G. Howell, to recover a tract of land in Hood county of one thousand two hundred and seventy-eight acres, patented to the heirs of John Hibbins.

Tried below before the Hon. T. A. Falvey. This was a suit brought in the district court of Presidio county, by the appellant, against the appellee on the 28th day of February, 1884, for the purpose of canceling and annulling the appellee’s claim of title to two sections of state school land.

Tried below before the Hon. B. T. Williams. Action of trespass to try title, brought by appellee in the district court of Clay county, to an undivided three hundred and twenty acres of land of the B. B., B. & 0. R. R. Co., situated in Clay county, Texas, as described in the original petition of plaintiffs, filed in the district court of Clay county on the 19th day of September, A. D. 1881. The appellant pleaded not guilty, and answered on the 11th day of November, A. D. 1881.

Tried below before the Hon. T. B. Wheeler. The statement of the case by appellants’ counsel was adopted by the commission of appeals, and is as follows: On the 25th day of May, 1882, Mrs. II. G-. Allison purchased of her brother, O. 0. Scarborough, lot Ho. 2 in block 28, in the town of Ranger, Eastland county. The lot at time of purchase had on it a dwelling and a store-house.

<p>Appeal from Caldwell. Tried below before the Hon. L. W. Moore.</p> <p>On the 26th day of March, 1880, the plaintiffs, E. R. Reed and Margaret A. Burleson, joined by their husbands, under leave of the court, filed their second amended original petition, in which Robert H. Reed joined them; they reiterated their allegations that they and Martha A. Duke, wife of appellant, were the sole heirs-at-law of Robert Dorn and his wife, Mary Dorn; they alleged the death of Robert and Mary H. Dorn, the ownership of Robert Dorn in his own separate right of two hundred acres of land out of the Seals league as a homestead, it being an undivided part of a tract of six hundred and sixteen acres, the excess of which had been, prior to the death of Robert Dorn, bought by Robert S". Reed at execution sale, which six hundred and sixteen acres were described by field-notes. That Robert 27. Reed was a grandson of Robert Dorn, whose parents were dead, and at the date of the death of Robert Dorn was a minor, and constituted the family of Robert Dorn. That more than twenty years before Robert Dorn’s death, Mary H. Dorn, his wife, had, without good cause and against his will, separated from and abandoned him, and had continued to live apart from him up to the time of his death. That at the time of their separation they had divided their property, and during the remainder of their lives had held their estates in severalty. That Mary H. Dorn did not visit Robert Dorn during his last illness, and was not present at his burial, and did not make any claim to his property.</p> <p>It was further alleged that Robert Dorn, at the time of his death, owned certain personal property, the same mentioned in their first amended petition. That appellant, Martha A. Duke, joined with her husband, James H. Duke, took possession of and appropriated that personal property, and were in possession of the homestead of two hundred acres and had been appropriating the rents thereof since the death of Robert Dorn in September, 1869, and refused to divide the property or account to plaintiffs for their share, and that the rents were worth $1,000 a year.</p> <p>That appellants Duke had conveyed certain portions of the land to M. Ussery, A. Farmer and the G., H. & S. A. R. R. Co., who were claiming title thereto.</p> <p>That of the excess of the six hundred and sixteen acres so purchased by Robert 27. Reed, he had sold to Martha A. Duke three hundred acres, and was owner in his own right of the difference of one hundred and sixteen acres, and was entitled to have the same allotted to him in the partition prayed for.</p> <p>It was further alleged that Mary H. Dorn died in August, 1878, owning a large estate, consisting of $3,000 in money and $1,299 due her by the appellants, Martha A. Duke and James H. Duke, evidenced by their promissory note. That James H. Duke was insolvent, and that Mary H. Dorn died owing no debts, and that there was no administration on her estate. That Martha A. Duke had appropriated the whole of the estate of Mary IT. Dorn to her own use, and refused to pay any portion thereof to plaintiffs upon demand. And prayer was made for judgment against the defeudants for a decree for partition of “ said two estates,: ” for commissions to set aside the homestead of two hundred acres and appraise the same; for judgment against Martha A. Duke for the value of the personal property of Robert Dorn, appropriated by her; for the rents of the land since January 1, 1870; for said $3,000, less $300, which had been paid to plaintiffs; for judgment against Martha A. Duke and James H. Duke for the amount of the one thousand two hundred and ninety-nine dollar note; that the whole be summed up, and if the same exceeded the value of the share of the land to which Martha A. Duke was entitled, that so much thereof as should equal the value of her share of the land be charged to her in offset to her share in the land, and that plaintiffs have judgment over against Martha A. Duke for their share of the balance that might remain due, and for execution against the separate property of Martha A. Duke for such balance; and that the balance of four hundred and sixteen acres of land be partitioned by setting apart to Martha A. Duke three hundred acres thereof, and one hundred and sixteen acres thereof to Robert M. Reed, having due regard for water, soil, timber, etc.; and for general relief.</p> <p>On the 24th day of September, 1879, J. Mix and L. J. Storey, administrators of the estate of Robert Dorn, filed their petition for intervention, alleging that they were entitled to the custody of the estate; that there were some debts due by the estate and unpaid, and praying to be allowed to unite with the plaintiffs in this suit, to prosecute the same so far as the property of Robert Dorn, deceased, as set out in plaintiffs’ amended pleadings, might be involved, and adopting the pleadings for their own, in so far as they applied to the estate of Robert Dorn, deceased, and praying “for judgment against the defendants set out in the pleadings, as prayed for by plaintiffs.”</p> <p>On the 2d day of April, 1880, defendants, M. Ussery and A. H. Farmer, filed their first amended answer, in which one Bingham Trigg, as the vendor of Farmer, intervened as a defendant on behalf of his vendee, Farmer, and for answer pleaded the general denial, and pleaded specially that on the 29th day of May, 1874, defendants, Duke and wife, had sold to Trigg and Ussery ten and one-half acres of the land for the sum of $525, by deed with general warranty, which ten and one-half acres they set out by field-notes. That Farmer and Ussery were in possession of the land, Farmer holding under deed from Trigg. Farmer and Ussery disclaimed as to all the property sued for except ten and one-half acres, and pleaded that they were purchasers in good faith and had had adverse possession of ten and one-half acres for at least a year before the commencement of this suit, and suggested improvements, and called upon Duke and wife to make good their covenant of warranty, and in case of eviction they prayed for judgment thereon for their purchase money, with interest thereon, and for equity.</p> <p>On the 30th day of August, 1881, the defendant, the G-., H. & S. A. E’y Co., filed its original answer, in which it demurred generally, pleaded the general denial and “not guilty,” and pleaded specially the statute of limitation of five years to one hundred feet in width through five hundred acres of land, part of the Solomon Seals league, for the right of way for its railroad.</p> <p>On the 29th day of September, 1881, the appellants, Duke and wife, filed their first supplemental answer, and by way of plea in abatement of the intervention of Eobert Dorn’s administrators, alleged that as between them the subject-matter of this suit was identical with another suit between the same parties, previously tried in the district court of Caldwell county, and then pending in the supreme court on writ of error, identifying the suit by number, style, parties, subject-matter, prayer and decrees.</p> <p>Appellants also pleaded the general denial; and by way of special defense: 1st. That on the 3d day of November, 1868, Eobert Dorn and his wife, Mary H. Dorn, were seized in fee, as community property, of the tract of land referred to by plaintiffs, containing by actual measurement six hundred and sixteen acres, but supposed to contain five hundred acres. 2d. They reiterated their allegation as to the recovery of a judgment by A. W. Dibbrel 'against Eobert Dorn, the sale of the land under execution issued on that judgment, and purchase of the same by Eobert N. Eeed on the 3d day of November, 1868; and they alleged further that the judgment was a community debt and was in full force on the day of sale. 3d. That on the 3d day of November, 1868, and during the lifetime of Eobert Dorn, Eobert N. Eeed, under his purchase, took possession of the whole of the tract of land, and that his title thereto was admitted and recognized by Robert Dorn, who continued to live in a house upon the land as a tenant at will of Robert R. Reed, and of the appellant James H. Duke, who was guardian of Robert R. Reed, who was then a minor, until the death of Robert Dorn in 1869. 4th. That at the date of the sale and of the death of Robert Dorn, Robert R. Reed was a minor and a member of the family of appellant, James H. Duke, who was guardian of his person and estate; that at those dates Robert Dorn had no family except his wife, Mary H. Dorn, who survived him, and that at the date of his death Robert Dorn was insolvent. 5th. That after Robert R. Reed attained his majority, Mary H. Dorn asserted title to two hundred acres of land off the end next to the San Marcos river, as a homestead; that her title thereto was recognized and admitted by Robert R. Reed, and that about the 4th day of February, 1871, with his knowledge and consent, she entered upon and took possession of the two hundred acres. 6th. That upon the 4th day of February, 1871, Robert R. Reed conveyed the entire balance of the tract to Martha A. Duke for $1,800 in gold; that the portion so sold was estimated to contain three hundred acres, but contained by actual measurement four hundred and sixteen acres, but was sold in gross without reference to quantity; that appellants immediately took possession of the land under the conveyance, and they pleaded the statute of limitation of five years, setting up possession under registered deed, cultivation, etc., and payment of taxes. 7th. That on the 4th day of February, 1871, while in possession of the two hundred acres, Mary H. Dorn, with the knowledge and consent of all of plaintiffs, conveyed the two hundred acre homestead to appellant, Martha A. Duke, with covenant of general warranty, for $2,000 in gold, which appellant paid and the plaintiffs were estopped. 8th. Appellant pleaded the statute of limitations of three, five and ten years as to all the lands in controversy. 9th. Appellants denied that Mary H. Dorn voluntarily abandoned her husband, but alleged that they had lived upon the land in controversy as a homestead. They admitted that Mary H. Dorn was not with her husband during bis last illness, and was not present at his death or burial, but alleged that she was on a visit to her daughter, Mrs. Reed, in Eastern Texas, and did not know of his illness or death until long after his burial. 10th. Appellants describe the four hundred and sixteen acre tract and the two hundred acre tract by field-notes, the description of the two hundred acre tract being identical with that given by plaintiffs in their first amended petition. 11th. That Robert Dorn left no property subject to administration; that none of his property ever came into their hands except a small sum of money, insufficient to pay his burial expenses, and was so applied by them; and that the remainder of his property was seized and appropriated by plaintiffs. 12th. That no property of Mary H. Dorn came into the hands of appellants, except $300, which, after the payment of her debts, had been divided among the heirs. That appellants’ title to the lands named was jeopardized by this suit, and by the other suit herein referred to, and had been threatened in "the life-time of Mary H. Dorn, and before the execution of the note referred to by plaintiffs. 14th. That the money for which the note was given was loaned to, and deposited with, appellants by Mary H. Dorn, when old and in declining health, for the purpose of securing them upon her covenant of warranty and indemnifying them in case of eviction in either of said suits. And that under a written agreement, executed by Mary H. Dorn, on the 1st day of October, 1877, appellants could not be held liable to pay the note until both of said suits were terminated in their favor. . . . 16th. That plaintiffs were liable to appellants for three-fourths of the $500 paid to T. M. Harwood in discharge of the Dorn mortgage. 17th. In answer to the cross petition of Hssery, Farmer and intervenor Trigg, appellants demurred. 18tb. Appellants admitted that they had sold to Hssery and Trigg ten and one-half acres of the two hundred acre tract, for $525, but said that since Trigg had sold his interest therein to A. H. Farmer for $125. 19th. Appellants suggested adverse possession for more than a year, and permanent improvements, specifying them, of the value of $5,000. 20th. That the rent of the two hundred acres, exclusive of improvements, was not worth more than $100 per year. 21st. That if Mary H. Dorn had no homestead right in the land, the title to the whole tract vested in Eobert H". Eeed by his purchase at sheriff’s sale, and that appellants were in possession of the entire six hundred and sixteen acre tract, and claimed title thereto, not only under the deeds of Eobert H. Eeed and Mary H. Dorn, heretofore named, but also under a later deed from Eobert H. Eeed to the entire tract; and they prayed for judgment quieting their title to the whole of the land sued for, and for general relief.</p> <p>The following are the rulings, findings and decree of the court:</p> <p>“ This cause coming on this day to be heard, when came the parties plaintiffs, W. T. Eeed and wife, E. B. Eeed, E. B. Burleson and wife, Margaret Burleson, and also the defendants, Martha A. Duke and, husband, James H. Duke, also the Galveston, Harrisburg & San Antonio Railroad Company; also Maston Hssery, also Jonathan Hix and L. J. Storey, administrators of Robert Dorn, deceased, all by attorney; and it appearing to the court that defendant Duke has, since the commencement of this suit, bought the interest of Robert 27. Reed and Adam Farmer, this suit is discontinued as to said Robert 27. Reed and Adam Farmer by consent of parties. A jury being waived, the cause was submitted to the court. When came on to be heard the demurrer of the Galveston, Harrisburg & San Antonio Railroad Company, which being understood, the same is overruled. And then came on to be heard the defendants’ plea in abatement to the petition of intervention of Jonathan 27ix and L. J. Storey, administrators of Robert Dorn, deceased, which being understood, was overruled, to which defendants except. And then came on to be heard the demurrer and special exceptions of defendants to plaintiffs’ pleadings, which being understood, are sustained so far as the same seek to recover and partition the estate of Mrs. Mary H. Dorn, to which ruling plaintiffs excepted, and as to all the remainder of said exceptions the same are overruled, to which rulings of the court defendants excepted. And the court having heard the testimony and argument of counsel, the following decision is made:</p> <p>511. That the two hundred acres of land next to the San Marcos river was the separate property of Robert Dorn, and was his homestead, and that he died, leaving Mrs. E. R. Reed, Mrs. Margaret Burleson and Mrs. Martha A. Duke and Robert 27. Reed, his only heirs at law.</p> <p>“ 2. That Mary H. Dorn, having wilfully abandoned her husband, was not entitled to the same as her homestead.</p> <p>“ 3. That the plaintiffs recover of said defendants one-half of said land, less the ten and one-half acres sold to M. Ussery and B. Trigg, who are found to be innocent purchasers, together with rents at $3.50 per acre on sixty-nine and three-fourths acres per annum, from two years next before the filing of this suit, to the present time, say five years, less $200 allowed for improvements.</p> <p>££4. That plaintiffs and defendants recover against the interveners, Jonathan 27ix and L. J. Storey.</p> <p>“5. That the Galveston, Harrisburg & San Antonio Railroad Company recover against the plaintiffs, and that M. Ussery and defendants recover against plaintiffs the ten and a half acres sold to Trigg and Ussery.</p> <p>“ 6. That plaintiffs recover all other costs to this date against defendants, and that all subsequent costs of partition be equally divided. It is therefore ordered, adjudged and decreed, etc., etc. (here follows the formal part of the decree, with field-notes of the land to be divided).</p> <p>“ And it is further ordered by the court that Henry Chapman, Len Barnett and W. B. Walker be appointed commissioners to partition and divide said land and allot to the said Mrs. Burleson and Mrs. Beed together an equal half of said land; and it appearing to the court that the defendant, Mrs. Duke, is the owner of the share of which B. E. Beed would be entitled, said commissioners will allot to Mrs. Duke the other half of said land, and that they make their report, with plot attached, to the next term of this court. And it is further ordered and decreed that the said plaintiffs recover of the defendant, James H. Duke, the sum of $1,020.20, and against defendants, Duke and wife, all costs in this contest with them up to this present date, and that all further costs in this partition be equally divided between plaintiffs and defendants.” . . .</p>