Volume 71 — Texas Reports

<p>1„ Evidence.—Trespass to Try Title.—In trespass to toy title the plaintiff may introduce in evidence a deed'forming a link in his chain of title though it bears date subsequent to the alleged entry as charged in the petition, if executed before the institution of the suit.</p> <p>2. Agreement op Counsel.—The action of the trial judge after hearing statements of counsel for parties litigant in regard to a parol agreement to waive filing of title deeds and notice thereof, in enforcing such agreement, constitutes no ground for a reversal of judgment.</p> <p>3. Registration—Notice.—Registration of a deed is notice only to one claiming under the grantor in the recorded deed. A junior purchaser of land is char gable not only with notice of the contents of registered deeds in the chain of title, but when the mesne conveyances contain that which should put a prudent man on inquiry, he is chargeable with notice of whatever an inquiry would have revealed.</p>

<p>Appeal from Dallas. Tried below before the Hon. George N. Aldridge.</p>

Tried below before the Hon. T. B. Wheeler. This suit was brougnt July 24, 1883, to quiet title and to recover a section of land (No. 497) patented to the Southern Pacific Railroad Company, claiming the same by regular conveyances down to M. J. Hall, Sr., deceased, and by deeds from his heirs to plaintiff John C. Roberts, the appellant, of date March 30, 1883, October 12, 1881, and October 14, 1881.

<p>Appeal from Dallas. Tried below before the Hon. George H. Aldridge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Tom Green. Tried below before the Hon. Wm. Kennedy</p> <p>The facts are given in the opinion.</p>

Tried below before Hon. A. S. Walker. June 8, 1885, appellants brought suit for specific performance of a contract in writing, as follows: By this instrument of writing I bind myself to make to Nathan Halbert and David Garner, a quit claim deed to the one-half of the league of land to which I am entitled as a citizen of Texas, so soon as I myself shall obtain a title for the same.

<p>Appeal from Limestone. Tried below before the Hon. L. B. Bradley.</p>

<p>1= Act of God—Common Carrier.—In an action against a railway company for damages, for failure to furnish ears, and to receive and transport cattle, the contract being that the cattle should be received on May 19.1884, and delay was made until May 33, and a break was caused in the track on May 31, by a violent rain storm, the break being at a place which would have been passed had the cattle been shipped at any time before the morning of the twenty-first of May; Held, that the break in the track on twenty-first, after the breach of contract, was no defense to the action; and that the railway company was liable for ail damages caused by its breach.</p> <p>2. Testimony not Relevant.— It was irrelevant upon the question of damages to show that the plaintiff had contracted for the sale of the cattle at their destination, and that they were refused, because not such as had been represented, and not for or on account of their condition. Such testimony did not tend to show the amount or limit of damages suffered.</p> <p>3. Same — Immaterial.—It was not material error to admit testimony that the defendant company had an ample supply of ears empty and idle at a station near the point of shipment. The defendant having pleaded and introduced testimony tending to show a crowded condition of business at the time, on the road.</p>

Tried below before the Hon. J. M. Hall. The appellants, who were plaintiffs below, brought an action of trespass to try title, and for damages, against appellees for three hundred and fifteen acres, part of the E. N. Goode six hundred and forty acre survey, in Hill county. The land sued for was described by metes and bounds.

Tried below before the Hon. A. S. Walker. The statement of the.case in brief for appellant is adopted. Amos Finch was elected tax collector of Wise county on the fourth day of November, 1884. On the seventeenth of November he executed his official bond with J. W. Hale, T. D. Woody, A. Devereux, John L. Lovejoy and W. W. Brady as sureties. Said bond was approved by the commissioners court, recorded and forwarded to be approved by the Comptroller and filed in his office.

<p>1. Trespass to Try Title for Lands in Different Counties.—An action by tenants in common in two tracts of land located under one land certificate, but in different counties, and against heirs of the grantee of the certificate, in trespass to try title, can be maintained for both tracts, there being no plea in the abatement nor special exceptions as to the tract of land lying in the county other than that in which suit is brought. (67 Texas. 382, Martin v. Robinson; 11 Texas, 400, Ryan v. Jackson; See. 13, Rev. Stats., 1198.)</p> <p>2. Parties.—Unless partition be asked the absence of all claimants as defendants is immaterial in an action of trespass to try title.</p> <p>3. Possession.—A petition alleging ownership of land in plaintiffs, and an adverse claim by the defendants is sufficient in alleging a cause of action without alleging possession or right of possession in the plaintiffs.</p> <p>4 Testimony—Practice.—Only such objections as are urged tc the admissibility of testimony will be considered on appeal. Objection to depositions are governed by statute.</p> <p>5. Stale Demand.—In an action for a locative interest upon a contract for a deed to be made on issuance of patent, such claim does not become a stale demand until ten years after issuance of patent in absence of complaint or repudiation of the contract on account of delay before patent, regardless of the time between the contract and the patent.</p> <p>6. Probate Records as Evidence of Title.—See testimony held insufficient as a link in the chain of title on account of variance in the description of land certificate, alleged to have been partitioned by decree of a probate court.</p> <p>7. Same—Stale Demand.—Proceedings to correct a misdescription in a decree of partition entered prior to May 21, 1871, and brought August 29, 1883, are brought too late. (47 Texas, 239; 51 Texas, 647; 54 Texas, 85.)</p>

Tried below before the Hon. J. I. Perkins. This suit is an information in the nature of a quo warranto filed by Robert H. Morris, district attorney of the second judicial district on the relation of J. T. Hoya, by permission of the Hon. James I. Perkins, judge of said district, against H. F. Dunson, E. M, Brown, David Lee, George H. Davidson, Ben S. Wettermark, August Olfenbuttle and John S. Doughtie.

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

<p>Appeal from Bastrop, Tried below before the Hon, H. Teichmueller.</p>

<p>1. Parol Acceptance op Check.—A verbal acceptance or promise to pay a check or bill of exchange may be enforced. Such undertaking is not within the statute of frauds.</p> <p>2. Same—Construction op Statute.—The English and American courts having decided that such acceptances were not within the statute of 29 Car., II, Cap. 3. prior to its adoption in this State the presumption is that it was intended that it should here receive the same construction.</p>

<p>1. Vendor and Vendee—Quit Claim.—A purchaser of land taking a quit claim deed or deed with special warranty and executing his note therefor, in absence of fraud, the maker understanding the facts, can not defend against suit upon the purchase money note by showing that the vendor had no title to the land and that no title passed.</p> <p>3. Same.—The purchase money notes and the deed executed together in absence of fraud or mistake express the conditions of the purchase and determine the rights of the parties.</p>

Tried below before the Hon. Richard Maltbie. The statement of the nature and result of the suit below-made in appellant’s brief is given: March 1, 1879, suit was brought in the district court of Grayson county against the Life Association of America by F. M. Goode to rescind two contracts of life insurance for fraud in their procurement and recover one thousand six hundred and thirty dollars premiums paid with interest.

<p>Appeal from Palo Pinto. Tried below before the Hon. T. L., Nugent.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. George H. Noonan. This, is an appeal from a judgment of the district court of Bexar county on scire facias reviving a judgment for seven thousand seven hundred and sixty-five dollars and seventy-four cents, which had been rendered March 1, 1877, in the same court, in favor of Miller, the appellee, and against H. Hamilton and Charles Schmidtke. The judgment had become dormant.

<p>1. Distress Warrant—Exempt Property—Damages.—A landlord obtained a distress warrant for rent. The constable to whose hands the writ came, without instructions, levied upon household furniture of the tenant exempt from levy. The property was sold under the proceedings, in absence of any testimony showing knowledge or ratification of the seizure of the exempt property on part oi the landlord held, (1) it is presumed the landlord intended that no action should be taken under the writ not authorized by law, and (2) that in absence of proof of ratification of the illegal levy he is not liable in damages for the seizure of the exempt property.</p>

Tried below before the Hon. George H. Noonan. Appellant, Mary A. Maverick, as plaintiff below brought this suit on the twenty-fourth day of December, 1885, in the ordinary form of an action of trespass to try title, against appellees, Francisco Flores, Jose Flores and Oscar Crawford, defendants below, to recover a lot of land situated in the city of San Antonio, in Bexar county, Texas, setting out the boundaries thereof, and alleging that plaintiff was at the date of the…

<p>Appeal from Coryell. Tried below before the Hon. T. L. Nugent.</p> <p>The facts sufficiently appear in opinion.</p>

Tried below before the Hon. J. M. Hall. January 31, 1885, the appellants, the widow and children of John O. Harrison, brought suit as his heirs for a twelve hundred and eighty acre tract of land patented in 1852 to Charles L. Harrison, the vendor of John O. Harrison, against Mrs. M. J. McMurray, J. R. Harrington and J. E. Wilson and against Mrs. S. A. George and her children and against J. H. Sears and Samuel Cassiday.

<p>1. Possession—Trespasser.—In an action of trespass to try title posses - sion alone is sufficient evidence in behalf of plaintiff to entitle him to recover against a mere trespasser.</p> <p>2. Case Approved.—Alexander v. Gilliam, 39 Texas; 228, followed and approved.</p>

D. H. Scott, June 2, 1885, McGrady sued Monks, alleging that May 19, 1883, the parties made a contract, Monks agreeing to convey to McGrady by a good and sufficient deed one hundred and forty-two and a half acres of land described, at four dollars per acre; that Monks made and delivered a deed for the land, receiving the price.

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

<p>1. Assignment for Benefit of Creditors.—-When an assignment for the benefit of creditors is made the law becomes part of the deed of assignment and will control the assignee in the administration of the assets, although some of the terms of the deed are at variance with the law.</p> <p>S. Assignment for Benefit of Firm Creditobs.—If it be shown that creditors of the individual members of the firm are in no way provided for in the assignment such omission would not avoid it, and the individual creditors could maintain their rights as creditors against the assignee.</p> <p>3. Sales on Credit.—Where, for advantage of the estate an assignee could be made to sell on credit, and a provision so directing sales would not render an assignment void. (66 Texas, 329, Schooler v. Hutchins.)</p> <p>4. Fraudulent Conveyance.—Nor will a fraudulent conveyance, etc., by creditor affect the assignment. The assignee or creditor may contest such sales.</p> <p>5. Assignment.—Provisions for payment of costs and expenses before payment of creditors, and that if after all creditors are satisfied there be a remnant, that it be restored to the maker, are but provisions which would be supplied by the law and are harmless.</p> <p>6. Garnishment of Assignee.—No creditor can by attachment or garnishment divert the estate in hands of the assignee under, a legal assignment, or subject it to any other than the creditors entitled under the assignment.</p> <p>7. Garnishment of Assignee—Practice.—Garnishment proceedings against an assignee should be held over until accepting creditors are paid so as to allow the garnisher whatever priority of right his proceedings may secure. (Lovenberg v. Bank, 67 Texas, 448.)</p>

<p>Appeal from Travis. Tried below before Hon. A. S. Walker,,</p> <p>The opinion gives the facts discussed.</p>

Tried below before the Hon. A. S. Walker. This was a suit of trespass to try title, brought in the district court of Travis county, on the fourteenth day of November, 1884, by appellees against Francis T., Alf. R., Joseph R. and W. C. Burlage, Kate J. Edwards, Joseph Fisher, George Hold-stock and Robert G. Sheldon, to recover lot. five in division E in the government tract adjoining the city of Austin.

<p>1. Foreclosure op Vendor’s Lien—Parties.—A purchaser in possession from the vendee before suit to foreclose the vendor’s lien is a necessary party to such suit.</p> <p>2. Same,—A decree foreclosing the vendor’s lien does not affect the rights of a purchaser from the vendee in possession and not a party & the suit.</p> <p>3. Equities between Separate Owners op Land Subject to Lien.— A vendee sold part of a tract of land on which the vendor’s lien remained. In a suit to foreclose the lien with the proper parties, the court can protect the purchaser from the vendee by adjusting the equities between him and those claiming by purchase under him.</p>

Tried below before the Hon. R. E. Beckham. March 2, 1887, appellant obtained a temporary injunction restraining the appellee from the further construction of its line of street railway on the Texas & Pacific donation or reservation, between Main street, in the city of Fort Worth, and the Union depot in said city.” The allegations in the bill are substantially as follows: The petition shows the corporate existence of the plaintiff and defendant and of the Texas & Pacific…

Tried below before Hon. D. H. Scott, On the-day of December, 1876, appellants filed a suit in the district court of Fannin county for recovery of an undivided interest in land in controversy.

Tried below before Hon. D. P. Marr. Appellee filed his original petition on the third of June, A. D. 1887, against appellant as sheriff and tax collector of Frio county, setting forth that in the year 1880 appellee had leased for a term of ten years therefrom the four leagues of school land belonging to Frio county, and that he had rendered the same for taxation as a leasehold on the fifteenth day of June, A. D. 1886, to the assessor of taxes of Frio county, and that the…

<p>1. Transcript Filed by Appellee—Practice.—If an appellee be not satisfied with the transcript filed by the appellant it is his privilege to> procure and file a more perfect record for the presentation of the questions involved. His transcript should be filed with appellant’s transcript, and have the same number, so that the appeal may be treated as one ease.</p>

<p>1. Contract for Joint Acquisition of Public Lands.—A contract for the joint acquisition of title to vacant land is neither within our statute of frauds nor against public policy. Such contract can be enforced by partition of such lands.</p> <p>2. Homestead Rights in Lands.—Such rights attach to the land when acquired subject to any burden, legal or equitable, upon it at the time of its occupancy as homestead. A contract to acquire land to be used as homestead does not require the assent of the wife, and it will be enforced without her aid or consent, even after its occupancy as the homestead.</p> <p>3. Partition.—In a suit for partition, the jury are not authorized to prescribe in the verdict how lands shall be divided. The verdict ascertains the rights of the parties. Decree for partition follows. Commissioners divide according to the decree, subject to approval of the court.</p>

Tried below before Hon. A. S. Walker. This is a suit for mandamus instituted on the fourteenth day of September, 1887, by the appellant against the appellee, as Commissioner of the General Land Office, to compel the delivery to appellant of titles, already issued and signed by the Governor and Commissioner of the Land Office, in the form of patents to certain leagues of land, or to make and deliver to appellant other good and sufficient titles from the State thereto, without…

<p>Appeal from Travis. Tried below before the Hon. A. S. Walker.</p> <p>On the twenty-sixth of September, 1887, appellant instituted this suit in the district court of Travis county, Texas, to recover of and from appellee the sum of three thousand seven hundred and fifty dollars, which sum appellant alleged that appellee, as Commissioner of the General Land Office of the State of Texas, had illegally and unlawfully collected from him for the use and benefit of the State, as office fees for issuing and delivering to appellant patents to certain lands described in his petition, which lands and the patents thereto appellant alleged he was entitled to by virtue of his contract to construct the new capítol of the State. Appellant made the contract an exhibit to his petition.</p> <p>Appellee answered by plea to the jurisdiction of the court, setting forth that the sum sued for by appellant had been collected by appellee in his official capacity as office fees for the use and benefit of the State, and paid into the State treasury, and that the suit was therefore, in effect, a suit against the State. Appellee also excepted generally and specially to the sufficiency of appellant’s petition, and answered by general denial.</p> <p>The court, after hearing the cause upon the pleadings and arguments of both parties, sustained appellee’s plea to the jurisdiction, and also his general and special exceptions, and dismissed the case at appellant’s cost, whereupon appellant appealed to this court.</p> <p>This case involves the same facts with the case next following. The cases were submitted together and decided on same day.</p>

A. S. Walker. A full statement of the- case is given in the opinion of the court. Several cases were submitted together, involving the same issues. The records in the other cases have not yet reached the Reporter.

Tried below before the Hon. A. S. Walker. This case is upon the same issues as one next preceding, save only as stated in the opinion.

<p>Appeal from Coleman. Tried below before Hon. T. B. Wheeler.</p> <p>The opinion states the case.</p>

<p>1. Homestead — Insanity of Husband Making Deed. — Where the homestead is conveyed by deed regular in form and duly acknowledged by the wife and the deed is attacked on account of the insanity of the husband, such deed is not held to be void, but only voidable.</p> <p>2. Rescission of Deed.—To avoid a deed the rules of equity demand that the party seeking the rescission must pay back the consideration received under the deed. This applies in case of homestead where the deed is avoided on account of the insanity of the husband.</p> <p>3. Same—Practice.—Where the plaintiff asking rescission offers to do equity and the decree ascertains that plaintiff is owing a sum of money received under the deed the decree should, on rescinding the contract, order sale of the property for the money owing after reasonable time for its payment.</p>

Tried below before the Hon. A. S. Walker, This suit was instituted in the district court of Travis county on the sixth day of January, 1887, by the State of Texas as plaintiff, against the Day Land and Cattle Company as defendant, to recover from defendant the sum of twelve thousand, one hundred and eighty dollars and interest; alleged to be due to plaintiff from defendant as the second annual payment on a written contract, whereby plaintiff, through its Land Board, leased…

Tried below before the Hon. W. A. Blackburn, This is an appeal from a judgment denying the right to recover upon certain promissory notes executed for a threshing machine. The defense was that the machine was worthless, and had been returned to the agents of plaintiff, which agents had made the sale and had represented the thresher to be c< as good as any of the kind in the United States.”

Tried below before the Hon. W. A. Blackburn. This is an appeal from a judgment allowing damages against the appellant for wilfully, and with intent to injure, leasing premises adjoining the home of the plaintiff, to prostitutes for the purposes of prostitution; it being alleged that the leased premises had been so used after the lease to the annoyance and injury to plaintiffs’, etc. The questions noticed in the opinion arose upon questions of pleading and practice, and the…

Tried below before the Hon. T. M. Paschal. This is an appeal from a judgment rendered upon an obligation given by appellant in consideration for the dismissal of a suit and of an attachment levied upon exempt personal property. The details and facts are given in the opinion.

Tried below before the Hon. F. E. Piner. The principal contention on this appeal is as to the locality of the west line of the survey owned by the parties to the suit. The testimony is voluminous and confiieting The opinion sufficiently sets out the other matters discussed by the court.

Tried below before the Hon. George H. Noonan. This is an appeal from a judgment rendered September 25, 1886, for two thousand nine hundred dollars in favor of Eckford for damages for personal injuries received at or near Cotulla, a station in La Salle county, Texas, on the road of the appellant.

Tried below before the Hon. George N. Aldridge. Appellant sued appellee for five thousand dollars for personal injuries received from a fall into a sewer or ditch bordering on the sidewalk, on Pacific avenue, near the junction of Sycamore street and Bryan street, in the corporate limits of the city, caused by appellee’s negligently constructing, or causing to be negligently .constructed, said sidewalk and ditch.

<p>Appeal from Dallas. Tried below before the Hon. George N. Aldridge.</p>

Tried below before Hon. A. S. Walker. Appellee Wilson, as assignee of Kanmacher & Dennig, by authority of chap. 7, p. 8, Special Laws of Texas, 1887, instituted suit against the State to recover an amount claimed to be due bis said assignors by the State on a contract for building the East Texas penitentiary at Rusk. The petition sets out the special act permitting suit.

M. Hall On March 31, 1884, L. P. Forbis and William Gambrell instituted this suit in the district court of Johnson county against J. N, Withers, in trespass to try title for two hundred varas by one thousand one hundred and sixty-five varas off the east end of the R. W. Boyce survey, for eight hundred and twenty adres, situated in Johnson county and fully described in plaintiff’s petition, and for rents, etc. And the defendant plead not guilty, and under the statute…

Tried below before the Hon. T. B. Wheeler. This is a suit filed in the district court of Shackelford county-on April 20, 1885, by appellee and one John Palm, trustee, against appellant and one S. R. Weaver and Ira J. Culver, to obtain a personal judgment against defendant Weaver on two promissory notes made by him to F. E. Conrad & Co., in 1883, and to foreclose a lien on a lot of sheep and other property, created by two deeds of trust made by said Weaver to said F. E.…

Tried below before the Hon. R. E. Beckham, This is an appeal by Florence Peak, Clara Walden and Ollie Peak against a judgment, their motion for new trial being overruled. The other defendants did not ask a new trial nor join in the appeal. The nature and result of the suit given in brief of appellants is adopted.

<p>Appeal from Bexar. Tried below before the Hon. Geo. H. Noonan.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Venue—Illegal Attachment Proceedings.—In an action by the defendant in attachment against the officer making the seizure, and the attachment creditor residing in another county, and brought in the county where the seizure and sale were made, it was alleged in the petition that by collusion between the officer and the attaching creditors an excessive levy was made, and the goods sold in bulk, etc., for the purpose of injuring the defendant. Held, the allegations prima facie gave jurisdiction over the non-resident defendant; but by plea alleging that the allegations were fraudulently made for the purpose of conferring jurisdiction, followed by issue and proof of the fraudulent character of the allegations, the suit may be abated as against the creditor residing in another county.</p> <p>2. Charge of Court—Officer Making Levy.—In such damage suit, it appearing that the attachment was regular on its face and no irregularity in the action of the officer being shown in evidence, either in the seizure or sale of the goods levied upon, the court should have instructed the jury to find for such officer.</p> <p>3. Burden of Proof—Charge.—While it is a rule of law that the burden is upon the party alleging the affirmative of an issue, it is not always necessary or proper to give it in charge to the jury. In many eases testimony bearing upon the issue comes from both plaintiff and defendant, and in passing upon the entire testimony the jury should not have their attention directed to the party from whom the testimony may come. It is sufficient if the charge indicates the questions of fact to be found.</p> <p>4 Grounds of Attachment — Damages. — In order to defend against actual damages, the very ground stated in the affidavit must be true; while it is a sufficient defense to a claim for exemplary damages that there was reasonable and probable grouncte to believe the facts stated in the affidavit were true. In an action for actual damages it was proper to exclude evidence of any ground for the attachment other than that stated in the affidavit upon which it was issued.</p> <p>5. Reversal as to Part of Cause.—When the justice of a ease will be reached by reversing as to one defendant and affirming as to another, it may be done.</p> <p>On Motion for a Rehearing.</p> <p>6. Waiver of Plea.—By proceeding to trial upon the merits of a case without specially invoking the action of the court upon a plea in abatement, it will be presumed that the plea was waived.</p>

Tried below before the Hon. B. W. Rimes. ' This suit grew out of the following state of facts; Henry Morris died in August, 1877, in Falls county, not indebted and intestate, leaving as his heirs Mrs. Perkins, Mrs. Price and Mrs. Kimbrough, all married, and two sons, A. P„ and J. E. Morris. Henry Morris left two town lots in Marlin, upon one of which he had his homestead, and one hundred acres of land near by in the country.

Tried below before Hon. James I. Perkins. This is an appeal from a judgment of the district court to which the case had been appealed from a justice’s court. The appellant sued the county for forty dollars alleged to be reasonable compensation for his professional services as a physician and surgeon rendered in two inquests in which post mortem examinations were made by plaintiff. He was required to perform the services upon threat of attachment.

Tried below before the Hon. F. A. Williams. The opinion sets out the facts, and the charges given and refused so far as necessary to a full understanding of the case. No question was made on the pleadings.

Tried below before the Hon. James I. Perkins. This is an appeal from a judgment refusing a divorce from the wife at suit of appellant, the husband. The grounds relied on were that the wife had refused to take food prepared by him in her illness, fearing it was poisoned, and had left him to reside with her children. The testimony is given substantially in the opinion.

<p>Appeal from Shelby. Tried below before the Hon. James I. Perkins.</p>

<p>1. Master and Servant—Duty of Servant.—In an action for damages by an employe for injury inflicted upon him by an iron slab used in covering a pit in which the employe was working falling upon his head, it had been propped upon its edge by himself with a piece of limber, as he had done before, and as he had been instructed. Held, that the employe was chargeable with knowledge of the danger; and, as-the slab fell from not having been safely propped up, he could not recover for the injury.</p> <p>2. Pact Case.—See facts insufficient to authorize a recovery for personal injuries by an employe.</p> <p>3. Receiver—Judgment Against.—In a suit against a receiver appointed by the federal court for damage, it is error for the district court to prescribe the particular funds out of which judgment should be paid. The judgment should be against the receiver in his official capacity, leaving the matter of its enforcement to be determined by the court having jurisdiction of the receivership, in view of the rights of all persons interested in the proper application of the fund in the custody of that court.</p>

Tried below before the Hon. James I. Perkins. This is an appeal from a judgment in the district court in an appeal case from a justice’s court, the issue being the ownership of a bale of cotton of the value of thirty dollars. Appellants claim title under one Mrs. Snyder, the mother of John C. Gibbs, under whom the appellees claim. The facts are given in the opinion.

<p>Appeal from Anderson. Tried below before the Hon. F. A. Williams.</p> <p>The opinion gives a statement of the case.</p>

Tried below before Hon. James I. Perkins. The opinion gives an abstract of the record sufficient to show upon what the court acted in the decision.

Tried below before the Hon, F. A. Williams. This is an appeal from a judgment for three thousand seven hundred and fifty dollars recovered against appellant for personal injuries caused the appellee through the negligence of its employes. The injury occurred at Little Rock, Arkansas, July 14, 1887, while appellee was on a stock car en route from Columbia, Tennessee, to Palestine, Texas.

Tried below before the Hon. James I. Perkins. Nacogdoches county, on February 19, 1887, instituted this suit against M. Mast, tax collector' of Nacogdoches county, and the sureties on his official bond, for two thousand six hundred and three dollars and twenty-five conts, county taxes', collected after the execution of his said bond by M. Mast, and converted to his own use and benefit.

A. Williams, This is an appeal from a judgment for seven thousand dollars, rendered May 2, 1887, in favor of appellee for damages for personal injuries received by him March 5, 1887, on the road of appellant near Nechesville by reason of an alleged •defective engine and tender which ran off the track and was turned over.

<p>1. Judgment to Support Sheriff’s Deed.—In an action of trespass to try title, the defendant only pleading not guilty, a sheriff’s deed offered by defendant, "without a judgment and execution to support it, was properly excluded.</p> <p>2. Assignment of Errors.—The assignment of errors should point out distinctly the action of the court complained of.</p> <p>3. Exceptions to conclusions of law and fact are not necessary where a statement of facts and bills of exceptions are brought up in the record.</p> <p>4. Case Limited.—Insurance Company v. Millican, 64 Texas, 48, limited.</p>

<p>Graveyard—Nuisance—Injunction—Parties.—Jung owned and resided upon a tract of land; with him lived one son; another with his family lived in a house upon the tract. Adjoining the Jung homestead lies a tract of land owned by the Roman Catholic church, the legal title being in Neraz, the bishop. Jung and his two sons joined as plaintiffs, sought to enjoin Neraz from establishing a cemetery upon the land, complaining that the burial of the dead in that place would poison the wells upon the land of complainants, would pollute the atmosphere and otherwise injure their homestead as a residence. Held:</p> <p>(1) The bishop was the proper party defendant.</p> <p>(3) That the sons of the owner in fee, residing upon their father’s homestead, were properly joined as plaintiffs; and,</p> <p>(3) That the allegations as to the threatened and permanent injury, etc., were grounds for equitable relief by injunction.</p>

<p>1. Assignee for Benefit of Creditors.—An assignee, under the statute, for the benefit of creditors, can not divest himself of his fiduciary character nor relieve himself of responsibility as such by abandoning the trust estate nor by conveying it to another.</p> <p>2. Same—Limitation.—Until such assignee is relieved from his position and from his liabilities, limitation does not ran in his favor against any one or more of the creditors interested in the trust estate.</p> <p>3. Same—Removal of.—At instance of one or more of the creditors an assignee delinquent as trustee may be removed by order of the district court under its equity jurisdiction.</p> <p>4 Same—Jurisdiction.—Jurisdiction of the district court is not dependent upon the amount of the claim of the creditor or creditors asking the protection of the trust estate in the hands of an assignee.</p> <p>5. Same—Accounting.—The right of a creditor to sue in the district court to compel the assignee to account and to pay over, etc., would not be dependent upon the amount, nor would such action against the trustee be barred by limitation.</p> <p>6. Pleading—General Demurrer.—In the petition by a creditor to remove an assignee, it was alleged that payments had been made upon the claim of the plaintiff by the assignee; on general demurrer it will be presumed that the claim of the plaintiff had been presented under the statute. The allegation of payment including such allegation.</p>

Tried below before the Hon J. M. Hall. This suit was originally brought by the appellee, T. H. Coburn, against the appellant, A. J. Morris, in a justice’s court in Bosque county, April the sixth, 1886. Morris gained the suit in the justice’s court, and Coburn appealed to the district court.

Tried below before the Hon. W. A. Blackburn. This suit was commenced in the district court of Bell county, August 14, 1885, by Josephine Ivy, widow of Thomas F. Ivy,. deceased, for herself and as next friend of his minor children, Thomas H., A. J. Jr., H. F., C. E., G. A. and Allie Ivy, and also on behalf of Jerry Ivy, his father, to recover damages-in the aggregate sum of thirty-five thousand dollars, alleged to have been suffered by them in the death of said Thomas F. Ivey…

<p>1. Claim Bond for Trial of Right of Property Where property is seized under several writs, a claim bond for the trial of the right to the property is properly made payable to the plaintiffs in all the writs levied, and but one bond is necessary or proper.</p> <p>2. Sale by Failing Debtor.—A failing debtor by bill of sale conveys to one of his creditors his stock of goods, and immediately thereafter the creditor, by written contract, employs the debtor to take charge of and sell the goods. Held:</p> <p>(1) The two instruments may be read together as evidencing the transactions between the two parties.</p> <p>(2) That the employment of the debtor is not fraud per se, but only a badge of fraud to be explained by circumstances.</p> <p>(3) That, there being nothing to show that the debt for which the transfer was made was kept in existence, the transaction was not a. mortgage.</p> <p>3. Creditor Taking Goods in Payment.—A creditor can take from, a failing debtor goods in payment of his debt, although the effect be to hinder other creditors. Only so much can be taken as reasonably sufñcent to discharge the debt ; but a slight excess, not taken by design, will not avoid such transaction.</p>

Tried below before the Hon. R. E. Beckham, This is a suit by C. Behee against the Missouri Pacific Railway Company to recover damages on account of a libel published and circulated concerning him, relative to his trade and calling.

<p>Appeal from Burnet. Tried below before the Hon. W. A. Blackburn.</p> <p>The facts are stated in the opinion,</p>

Tried below before the Hon. D. H. Scott. This is a suit of trespass to try title, brought by the appellees' (who were plaintiffs in the court below) against appellants (defendants in the court below) for a tract of land in Red River county, patented, to the appellant, Henry Stout, as assignee of Allen McClennau. Plaintiffs in their petition set up and rely upon the statute of limitation of five and ten years as a right to recover.

F. J. McCord. The full and accurate abstract of the record furnished in the brief of the appellants is given as a statement of the case.

Tried below before the Hon. D. H. Scott. This suit was commenced April 3, 1886, in the district -court of Red River county, by Elizabeth Hill, widow of David Hill, and by Lilly Bell, Charles, Lula, John and David Hill, his children, who were minors, and sued by their mother, Elizabeth Hill, as next friend, against the Texas & Pacific Railway Company and the Missouri Pacific Railway Company, to recover twenty' thousand dollars damages for the death of David Hill by…

Tried below before the Hon. B. F. Williams. This was a suit instituted by the Clay County Land and Cattle Company, on the twenty-fifth day of December, 1884, against J. P. Earle, Daniel Raser, W. J. Wood, Samuel Allison and James Bliss jointly in trespass to try title and for damages to the land in controversy. The land sued for was part of a four league survey patented to Angelina county on the seventeenth day of July, 1877, for school purposes.

Tried below before the Hon. B. F. Williams. This case and the preceding are appeals by the same plaintiff against separate judgments rendered in favor of the defendants upon the separate trials after severance by the defendants. The plaintiff’s case is the same in both cases. The opinion sufficiently shows the other facts.

Tried below before the Hon. J. G. Hazlewood This is an appeal from a judgment for ten thousand dollars damages for personal injury to the wife of the appellee. She was keeping a boarding car for the appellant, and while she was in her car on the track at Robeline. Louisiana, an engine was used to move her car, and in doing so, jerked the car, throwing her out, thereby injuring her.

Tried below before the Hon, F. J. McCord. This is an appeal from a judgment for three thousand five hundred dollars in favor of appellee, and against appellant, for personal injuries arising from and caused by the defendants carrying her beyond the station to which she had purchased a •ticket. The plaintiff is an old woman, put off in a strange place, several hundred yards from the station.

Tried below before the Hon. E. D. McClellan. Appellants brought suit by attachment against appellee, and on the nineteenth day of January, 1888, at eleven o’clock a. m,, had their writ of attachment levied upon lands of the defend.ant, and, among other lands, levied upon lots eleven and twelve, block 3, in the town of Detroit, Red River county, Texas.

Tried below before the Hon. F. A. Williams. Mackie sued appellant for ten thousand and fifty dollars damages, of which sum two thousand two hundred and fifty dollars was claimed as damages to plaintiff N. A. C. Mackie, and two thousand five hundred dollars was claimed as damages to plaintiff’s wife, Sallie Mackie, and five thousand dollars was claimed as exemplary damages.

<p>Appeal from Upshur. Tried below before the Hon. F. J. McCord.</p> <p>The opinion sufficiently states the case.</p>

<p>1. Insurance Policy—Sole Ownership.—A surviving partner administering upon the estate of the deceased partner is not the sole unconditional owner of partnership assets.</p> <p>2. Same.—Nor does such ownership exist when, or if the administrator and surviving partner should pay firm indebtedness to an amount equal to or greater than the value of the firm’s assets. Such payment would give the right to reimbursement out of the assets, but would not confer complete ownership.</p> <p>3. Case Followed.—Crescent Insurance Company v. Camp, 64 Texas, 621.</p> <p>4 Estoppel.—Where the state of ownership of insured property is made known to the agent of the insurance company at the time the policy was issued, the Insurance Company can not set up the want of complete ownership to bar an action upon the policy. (Ins. Co. v. Eads, 65 Texas, 118.)</p>

Tried below before the Hon. J. M. Hall. This is an a.ppeal from a judgment for two thousand dollars in favor of appellee. The cause of action was the failure of the telegraph company to deliver a message from the plaintiff Cooper to one Doctor Keating, m substance as follows.- “9 1—30, 1886. € ‘To Dr. J. R. Keating Cleborne Texas Come at once: bring Laurie; Josephine sick.

Tried below before the Hon. W. A. Blackburn. This is a writ of error from a judgment against Burns, the plaintiff below. The object of the suit is to recover one hundred acres of land in Burnet county—a part of the William Slaughter league.

<p>1. Registration.—Registration of a deed must be in that county designated by the Legislature for the record of deeds for the land affected by such deed.</p> <p>2. Unorganized County—Registration.—The Registration of deeds for lands in unorganized counties is determined by the statutes prescribing the place of such record.</p> <p>3. Archer County—Chat County.—In August, 1875, the county of Archer was not attached to Clay county, and registration of deeds for land in Archer county in the records of Clay county was of no legal effect as notice, although by common consent such registration was made.</p>

<p>Appeal from Wichita. Tried below before the Hon. B. F, Williams.</p> <p>The facts are given in the opinion.</p>

Tried below before Hon. James I. Perkins. This is an appeal from a judgment against Barnes, the appellant, for eight hundred and fifty-four dollars and nine cents, with foreclosure of attachment lien upon merchandise seized, and in favor of Ullmann, Lewis & Co. Suit was filed October 27, 1886. Affidavit was made for attachment on ground that defendant had disposed of his property in part, with intent to defraud his creditors. The attachment was levied October 28.

Tried below before the Hon. W. P. McLean. This is an appeal from a judgment for five hundred dollars for actual damages against the appellant.

<p>1. Motive of Vendor When Sale Attacked.—Where a sale is attacked as being in fraud of creditors, it was not error to permit the vendor, when called as a witness to support the sale, to be asked; “Did you sell for any other purpose than to pay your debts?” nor to allow his answer, ‘ ‘that he sold for no other purpose.”</p> <p>2. Sale by Failing Debtor.—A sale by a failing debtor for the purpose of applying the proceeds of sale to the payment of his debts, is not fraudulent as to creditors not sharing in the proceeds of such sale.</p> <p>3. Fact Case.—See facts held to show a valid sale by a failing debtor.</p>

Tried below before the Hon. W. P. McLean. The action of the court complained of in this appeal was the refusal by the court to recognize the case as upon the jury docket when the case was reached on the call of the non jury docket. The facts in the record show that on March 5, 1888, the first day of the term, the civil docket was called for orders, and for calls for jury.

<p>Appeal from Franklin. Tried below before the Hon. S. B. Pounders, Special District Judge.</p> <p>The opinion states the facts.</p>

<p>1. Liability of Sheriff for Goods Seized.—Plaintiffs obtained a writ of attachment. It was levied upon a lot of goods not in the possession of the defendant, but of others claiming them. By consent of the plaintiffs the sheriff left the goods with the claimants. Before the levy, plaintiffs had given to the sheriff an indemnity bond. The writ of attachment was found to be defective and plaintiffs, a we ek later in same suit, obtained a second writ upon which, by consent of plaintiffs, the sheriff endorsed the levy, copied from the return upon the first, the returns showing that the goods were left in possession of the claimants. The second writ was foreclosed, no notice being taken of the first. The claimants kept the goods. In motion against the sheriff for the value of the goods alleged to have been lost by him, held (1) that the sheriff receiving an indemnity bond before making the.levy did not prevent him from showing that the goods belonged to the claimants and were not subject to seizure. (3) After receiving an indemnity bond the sheriff making a levy upon property claimed by others can either retain the goods or surrender them. In the case of surrender he would assume the burden of proving that they were not liable to seizure. (3) The sheriff could show in defense that in fact no levy had been made upon the goods, (4) or that after levy he had released the goods, at request of the plaintiffs, in the attachment, or (5) that by the acts of the plaintiffs he had been induced to. release them.</p> <p>2. Charge—Notice.—A charge must be treated as an entirety. It can not be required that each paragraph shall be so full in details as to be considered independently of the other parts of the charge. If, in the charge, actual and constructive notice are defined, it is not necessary that such definition be respected whenever the word notice occurs.</p> <p>3. Levy.—To constitute a levy upon personal property, it is necessary for the officer to take actual possession thereof, or to so control them as . that he would be guilty of a trespass against the owner but for the writ under which he acts.</p>

<p>1. Community Homestead—Pleading.—After the death of the wife, a child of the marriage surviving, the husband sold the homestead, part for cash, remainder on credit, the vendor’s lien being reserved. Suit was brought on the note for the unpaid purchase money and to foreclose the lien. Defendant resisted payment, pleading that the vendor, husband, owned but one-half interest, and that he had no right to sell the homestead so as to pass the right of the child. It appeared that the community was indebted at the wife’s death, and that the sale was made to pay the debts. No replication was pleaded to the answer. Held that plaintiff could show the indebtedness of the community as a basis for his power to sell the land to rebut the plea denying his authority without pleading such facts in replication.</p> <p>2. Power to Sell Community.—It is well settled, and not an open question, that the surviving husband can sell community property to pay community debts.</p> <p>3. Same—Homestead.—The right of the surviving husband to sell the homestead to pay community debts' has been recognized in 65 Texas, 635, Ashe v. Yungst, and the case is followed.</p> <p>4. Vendor and Vendee.—A vendee with full knowledge of the facts at his purchase taking a warranty deed can not set up a partial failure of title in defense in an action for the purchase money—his possession not being disturbed.</p>

Tried below before the Hon. W. P. McLean. This suit was brought by the appellees, H. Sheffield & Son, in the district Court of Marion county, to recover of appellant actual and exemplary damages for delay in transmitting the following telegram: “October 27th, 1886. To H. Sheffield & Son, Lodi, Texas.

<p>Error from Cass. Tried below before the Hon. W. P. McLean.</p> <p>The opinion gives the facts.</p>

Tried below before the Hon. S. P. Pounders, Special District Judge. The only question on this appeal is as to the title of appellee to a piano given her by her father in March, 1880. She became of age in September, 1880. The piano was levied on in August, 1883, under an execution based upon a judgment for an indebtedness from the father of plaintiff then insolvent. The facts shown in the findings of the court upon the issue are as follows.

<p>1. Reward—An offer of a reward for the arrest of a party guilty of a particular offense, .when and after it has been acted upon, is binding upon the party making the offer.</p> <p>2. Same—Motives.—The secret motives for making the offer do not form any part of the contract with the party acting upon the offer. That the party offering expected others than the one arrested and proved guilty to be arrested, will not relieve him from his offer when acted upon.</p> <p>3. Same.—Nor would such expectations on part of the' party malting the offer form part of the contract where the offer was general and payable upon the arrest and conviction of the guilty party.</p> <p>4. Officers mat claim Reward.—It is no part of the duty of a constable to make an arrest without warrant upon a charge of burglary where the offense was not committed in the view of the officer, nor legal complaint made against the party arrested. A constable making such arrest under an offer of reward upon conviction of the party arrested, cam claim the reward.</p>

Error from Bowie. Tried below before the Hon. W. P. McLean. Plaintiff in error was a defendant below, and a purchaser of the personal property sought to be subjected to a mortgage by his vendor to the plaintiff. The defendants below (who were the maker of the notes and of the mortgage sued on, and the purchaser), only pleaded a general denial. The findings of fact by the court are as follows: “1.

Tried below before Hon. W. P. McLean. is an appeal from a judgment in favor of the appellees, who were plaintiffs below for certain lands sued for. There is no question upon the pleadings. „ The finding of facts by the court are as follows: “1. Both parties claim title to the land in controversy from W. A. Lockett as a common source. “2.

Tried below before the Hon. F. E. Finer. Coker and wife appeal from a judgment • against them in an action of trespass to try title for one hundred and sixty acres, their homestead. The facts necessary are given in the opinion.

Tried below before Hon. Dyer Moore, Special District Judge, sitting in place of Hon. H. Teichmuller. Appellant, as adminstrator of Nelson Burch, brought this suit against appellee to vacate a deed made by his intestate to appellee, and to have the land so conveyed adjudged to be assets in the hands of the administrator for the payment of debts.

<p>2. Sam of Unpicked Cotton.—See facts held sufficient evidence to show a completed sale of cotton in the field unpicked.</p> <p>2. Same.—The parties to the contract of sale were in the cotton field owned by the vendor. They agreed upon the sale of all the cotton crop on the plantation. The crop was turned over by the vendor to the vendee. Vendor agreed to pick ^nd haul the cotton to a designated gin; the vendee agreeing to haul the ginned cotton, at his own expense, to a designated market. The market price of the cotton was then to be credited upon the notes of the vendor to the vendee for the purchase money of the land upon which the cotton was raised. Held, that a subsequent attachment could not hold the cotton against the vendee, there being no evidence or charge of fraud.</p>

<p>1. Proceeds of Voluntary Sale of Homestead.—The proceeds of a voluntary sale of a homestead are liable to execution.</p> <p>2. Money in Hands of Sheriff.—Money in the hands of a sheriff and belonging to a judgment debtor against whom the sheriff holds an execution, may be applied to the payment of such execution by the sheriff, although the money had been made by the sheriff on execution.</p>

<p>1. Lease oe Railroad.—Without consent of the Legislature, a railway-company cannot lease its track, and thereby absolve itself from its obligations to the public.</p> <p>2. Limiting Liability.—A clause in a through bill of lading, exempting the carrier “from damages or loss by fire while in depot,” made in the State of Tennessee by a connecting road, being illegal in Texas, will not be passed upon in absence of allegation and proof that such limitation was legal where executed.</p> <p>3. Incompetent but Immaterial Evidence.—Where a fact is not disputed, or is well established by competent testimony, the admission of incompetent testimony which is immaterial and which could not have had any influence upon the jury, is no cause for reversal.</p>

Tried below before the Hon. R. E. Beckham. Johnson filed this suit against appellant in the district court of Tarrant county, September 8, 1884. He alleged that he was lessee of a building, and that without his consent defendant fastened a wire to secure a telegraph pole, in a brick wall on the roof of the building, which caused a part of the wall to fall.

Tried below before the Hon. W. P. McLean. The report of the former appeal in this case, together with the opinion following, gives the facts.

Tried below before the Hon. W. A. Blackburn. This is a second appeal. The facts are set out in the opinion and in Blum v. Simpson, 66 Texas, 84.

Tried below before the Hon. Wm. Kennedy. This is an appeal from a judgment below for two thousand eight hundred and sixty-eight dollars in favor of Harris, the appellee, against appellants. The suit was upon the following contract: “THE STATE OF TEXAS, ) Tom Green County. j Know all men by these presents, That L. B. Harris, party of the first part, and J. W. Clampitt and Wm.

Error from Red River. Tried below before the Hon. D. H. Scott. This was an action in trespass to try title, brought by Lassiter against Wright. The question involved was one of boundary. At fall term, 1887, judgment was rendered for the plaintiff for the land in dispute. The defendant, by writ of error, seeks a reversal of the judgment. The facts are given in the opinion.

Tried below before the Hon. W. P. McLean. September 16, 1886, appellee Kuhn brought suit against the appellants, the petition charging that the said defendants conspired with each other, and acting together, did on or about the ninth day of August, 1886, falsely, maliciously and scandalously write and publish, and cause and procure to be-written and published, a certain false, scandalous and malicious libel of and concerning the plaintiff, containing therein the false,…

Tried below before the Hon. W. P. McLean. This is an appeal from a judgment in favor of Griffin, the appellee, for four thousand four hundred dollars damages for personal injuries inflicted at Atlanta, Texas, by being struck by an engine. The engine and road where the injury was received was at the time in the hands of appellant as receiver.

<p>Appeal from Bowie. Tried below before the Hon. W. P. McLean.</p> <p>The opinion gives the facts.</p>

Tried below before Hon. J. A, B. Putman. This suit was originally filed by T. S. Rogers and Mary Rogers, his wife, to' remove cloud from the title to certain property in the town of Sulphur Springs, sold under execution in favor of appellants against J. S. Rogers, and bought by Hyman Blum, one of the appellants. The execution under which the sale was made was issued January 12, 1882.

<p>1. Injunction—Taxation—Disputed County Lines.—Chisholm and others reside in Rockwall county, and asked an injunction against Adams, the tax assessor of Kaufman county, restraining him from assessing the property within a strip 2500 varas wide claimed by both counties. The injunction was refused. Such ruling approved, (1) because claimants had a clear legal remedy at law, in appealing to the county commissioners court, without whose approval no liability is fixed by the assessment. (2) It does not appear that injury to complainants would result; the statutes (Acts 1879, pp. 24-28) require that the commissioner of the land office furnish to each assessor a list of lands in his county, which lands are required to be assessed, and the Act of April 23,1879, provides against double taxation in cases of mistakes or disputes as to county lines. (3)’ The acts of the assessor of themselves would not cast a cloud upon the lands, and (4) no act is shown which would render it necessary to resort to any court or other tribunal for the protection of any legal right or avoidance of any threatened injury.</p> <p>2. Same—Danger op Prosecution.—A threatened prosecution against land owners within such disputed territory for failure to render property for taxation affords no grounds for injunction restraining the assessor of one of the counties from making an assessment of lands in such disputed tract.</p>

Tried below before the Hon. Anson (Rainey. This is an appeal from a judgment denying the right to foreclose a mortgage upon fifty acres of land, the separate property of the wife, and which had been the homestead of the family. The mortgage was given to secure a loan of money to the husband. The transactions of the parties leading to the final making and delivery of the mortgage, and relied upon by the parties respectively, are given in the opinion.

<p>Error from Collin. Tried below before the Hon. Richard Maltbie.</p>

<p>1. Divorce—Charos by Wife of Infidelity.—The mere charge of adultery on part of the husband made by the wife, though the charge be repeatedly made and be false, is no sufficient grounds for divorce in favor of the husband.</p>

Tried below before the Hon. Anson Rainey. This is an appeal from a judgment in the district court for twenty-five dollars and twenty cents, the value of eighty-four bushels of corn, taken by appellant, Boydston, by purchase from one C. W. Steiger, with notice of a mortgage executed to' the plaintiff by said Steiger, upon said corn.

<p>Defective Cattle Guards upon Railway—Notice.—The brake upon the caboose was defective. The handle in the ear would set the brakes, but would not throw them off. While the train was in motion it was necessary for the brakeman to go upon the rear platform and down upon the lower step, and to stoop so as throw off the brakes by using an implement brought for the purpose. While so engaged, the head of the brakeman came in contact with a cattle guard, and for the injury so received the brakeman sued. He was fully aware of the defective brake, and of the fact that many of the cattle guards were too close, to the track. Held:</p> <p>1. The plaintiff could not recover for any injury directly resulting from the defect in the brake.</p> <p>2. If, being ignorant of the condition of the cattle guard, and it was so constructed as to be dangerous to the employes operating the trains, the plaintiff was injured, liability would ensue; and</p> <p>3. Knowledge that many of the cattle guards were defective, would put the employes upon notice of their construction generally, and would throw the risk as to all upon the employes.</p>

Tried below before the Hon. W. P. McLean. This is an appeal from a judgment in favor of Scott for two thousand -two hundred and fifty dollars, for personal injuries suffered by him as an employe of defendant from the explosion of a boiler on the railroad of defendant. No question is made on the pleadings. The charge of the court is as follows: “7: The burden of proof is on plaintiff to show by a preponderance of testimony his right to recover.

<p>Appeal from Montague. Tried below before the Hon. F. E Finer.</p> <p>The facts are stated in the opinion.</p>

Error from Tom Green. Tried below before the Hon. Wm. Kennedy.

Tried, below before Hon. W. C. Jones, Special Judge. This case was begun in 1859 to try title to a league of land. It was three times brought to the Supreme Court on appeal involving questions of title—36 Texas, 360; 46 Texas, 65, and 60' Texas, 506. After the last appeal it was tried in the district court April 11, 1887, and judgment rendered, from which no appeal was perfected. The questions now involved refer to the method of partition and are manifest from the opinion.

<p>Appeal from Hopkins. Tried below before the Hon. B. W. Foster, Special District Judge.</p> <p>The opinion fully states the case.</p>

<p>1. Subrogation—Vendor’s Lien—Henson bought on credit a tract of land from Shelby county. Before payment of the purchase money Henson sold a part of the land to Reed for a cash payment, and the further agreement that Reed should pay two-thirds of the indebtedness from Henson to the county. At request of Reed Henson paid one of the purchase money notes for the land to the county. By agreement among the parties, after the payment of this note, the bond of the county for the land to Henson, and Henson’s deed to Reed, were surrendered, and deeds were made by the county for Reed's part to him, and to Henson for the remainder of the tract. In suit by Henson for two-thirds of the purchase money paid by him at Reed’s request, held, (1) that Henson was Reed’s vendor, and that Reed’s obligation to pay the county was part of the purchase money or consideration. (2) That upon Henson paying the note he was subrogated to the right of the county to enforce its payment, and (3) Under the facts Henson was entitled to a decree establishing and foreclosing the vendor’s lien against the lands he sold to Reed, and for which the county had made the deed.</p>

Tried below before the Hon. T. A. Falvey. This is an appeal by the Del Rio Building Sc Loan Association from a judgment dismissing its petition of intervention in a suit pending by appellees against Olds and Onion, under whom both intervenor and the appellees. King Sc Fordtran, claim. The facts are given in opinion.

<p>Appeal from Bexar. Tried below before the Hon. George H. Noonan.</p> <p>The facts are set out in the opinion.</p>

Tried below before Hon. S. B. Pounders, Special District Judge, in place of Hon. J. A. B. Putman.

<p>1. Mortgage—Conditional Sale.—Hart applied to Eppstein & Co. for a loan. Max Eppstein, for E. & Co., conferring with Hart, agreed upon the terms and security. The security to be a mortgage upon a tract of land much in excess in value of the loan. The parties, H. and the agent, went to a lawyer to prepare the necessary papers. On consul tation and advice Hart executed to the agent an absolute deed for the land, and to E.- & Co. his promissory note payable to bearer, bearing interest at twelve per cent per annum, and due seven months thereafter, and stipulating for an attorney fee of ten per cent if collected by legal proceedings. Held:</p> <p>(1) That the note and deed together constituted one transaction, and with the attendant circumstances evidenced a loan of money.</p> <p>(2) That a parol agreement otherwise would not alter the terms of the contract.</p> <p>(3) Nothing short of a valid subsequent contract could alter its character, etc.</p> <p>(4) In a suit to redeem, both the agent in whom the title to the land was passed, and the holders of the note, were necessary parties.</p>

<p>1. Parties—Trustee.—A wife who is trustee holding funds for her children invested the proceeds in horses. Her husband in her right sues a trespasser for taking the horses. Held-. That her children were not necessary or proper parties.</p> <p>2. Depositions.—It is competent for the court to allow an officer taking depositions to supply an omission, the court being satisfied that the depositions have not been tampered with.</p> <p>3. Separate Trespasses.—A sheriff under an execution seized a herd of stock horses on the range; on same day and under same writ he seized other work horses, taking them from the plow and wagon of the party claiming the horses. Forthwith the claimant established his claim to the work horses, and by separate action sued for damages for the seizure of the horses on the range. Held: That the second action was not barred by the first, there being two separate and distinct trespasses.</p>

Error from El Paso. Tried beolw before the Hon. T. A. Falvey. This is error from a judgment below in favor of Jackson against plaintiff in error for six thousand two hundred and thirty-five dollars and fifty cents and costs and decree foreclosing a mortgage upon certain lands. There is no statement of facts nor bill of exceptions.

<p>1. Pleading.—In an action for damages alleged to have been caused by defendant by leasing a house to prostitutes to injury of plaintiff, who owned adjacent houses and lots use 1 as homestead and for leasing for rent, damages being specified as difficulty in renting and in depreciation in value; held that a charge of the court submitting diminished rental value as an element of damages was. within the allegations in the petition, and was not error, there being no special exception to the allegations in the petition.</p> <p>2. Practice—Absence op Statement op Pacts.—In absence of a statement of facts it will be presumed that the allegations in the petition were sustained by the testimony upon the plaintiff recovering. A charge of the court that no testimony was produced to an important allegation will not control such presumption.</p> <p>3. Injury to Peelings.—The allegations in the petition showed a wanton and wilful invasion of plaintiff's rights by the defendant in persistently leasing his houses to prostitutes after being warned not to do so. In such state of facts injury to feelings would constitute an element in exemplary damages which would properly be submitted to the jury.</p> <p>4. Charge.—The charge of the court submitted to the jury as basis for computation of actual damages, (1) impaired rental value, (3) diminished value of the property, and (d) injury to feelings, also charging that no exemplary damages would be given. The verdict for plaintiff, was for twenty-five dollars for diminished rental and seventy-five dollars for injury to feelings. The allegations in the-petition making a case for exemplary damages, in absence of a statement of facts, it is unnecessary to determine whether “injury to feelings” in such case could be compensated as actual damages. Under the petitition presumed to have been proven it was properly allowed to plaintiff, and the error, if one, was not material.</p>

<p>Appeal from Kaufman. Tried below before the Hon. Anson Rainey.</p>

<p>Appeal from Rusk. Tried below before the Hon. J. S. Hazelwood.</p>