Volume 81 — Texas Reports

<p>1. Custodia Legis.—Without holding that the dismissal of a suit wherein a receiver was appointed would subject to execution property taken charge of in such receivership but which had been seized under attachment pending the suit, it is held, where the court administering the property under a receivership had ordered a sale and had approved such sale before such dismissal, that the attachment proceedings would not affect such sale.</p> <p>2. Sale Under Receivership Proceedings.—A sale under receivership proceedings in a court having jurisdiction will be presumed regular and to pass title to the property. As against the purchaser no one could complain unless he had a lien upon the property at the time of such sale.</p> <p>3. Priority in Time as Affecting Jurisdiction.—There is a manifest propriety if not necessity for holding that the court which first acquires jurisdiction over a controversy should maintain it undisturbed by the interference of any other co-ordinate jurisdiction.</p> <p>4. The Appointment of Receiver Operates Upon the Property.—After the appointment of a receiver the property to which the receivership relates is to be deemed in the custody of the law.</p> <p>5. Property in Control of Receiver not Subject to Attachment.—The property on which the attachment was levied being then in the custody of the law by the appointment of a receiver (who had not given bond nor entered upon his duties), the levy conferred no right on the plaintiff in attachment or on those claiming under him.</p> <p>6. Suit Against Sold Out Railway Company.—The statute contemplates that a suit pending against a railway corporation when its franchise and other property is sold may be continued against the directors or managers of the sold out company, and with a view to that end provides that upon such sale no suit shall abate but “shall be continued in the name of the trustees of the sold out company.” Rev. Stats., arts. 4263, 4264.</p> <p>7. Injunction.—The plaintiff in attachment has no rights under his foreclosure upon the property seized while in the custody of the law; and as a sale under such decree would be a cloud upon the title of the property the purchasers under the receivership proceedings were entitled tó an injunction against such sale.</p>

<p>The opinion states the case.-</p>

<p>1. Power of Attorney — Charge.—A power authorized the attorney “to sell a tract of land consisting of 113 acres in Cooke County, Texas, near Gainesville, known as the Hall tract,” etc. The testimony was confused as to what land was indicated. Held, that a charge was proper submitting to the jury the issue whether the lands in controversy were included within the power of attorney. See charge approved.</p> <p>S. Agency to Collect a Debt.—An agency to collect, a debt means the collection in money; it does not authorize a barter.</p> <p>3. Ratification.—The ratification hy the principal of an unauthorized act of the agent relates to the date of such act. This rule obtains between the immediate parties. It does not conclude an attachment levied upon property between the date of the act and the ratification.</p> <p>4. Same — Registration of Deed. —That a deed to the principal for land taken by an agent without authority has been duly recorded will not affect the rights of an attaching creditor fixed by levy before the principal ratified the act.</p> <p>5. Parol Evidence to Prove Trust.—That land deeded to one partner belonged to the firm may be shown by parol evidence to facts showing such trust; that is, by whom the consideration was paid and for "what purpose the grantee held it.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Venue — Negligence in Failure to Act No Trespass. — Suit for damages for personal injuries caused by the defendant's representative failing to do an act which it was his duty to do. This is not a trespass within the meaning of the exceptions in subdivision 4, article 1198, Revised Statutes.</p> <p>2. Same—Trespass.—The words “where the crime, offense, or trespass was committed,” indicate that the word trespass was intended to embrace only actions for such injuries as result from wrongful acts willfully or negligently committed, and not those which result from a mere omission to do a duty.</p> <p>3. Limitation—Filing Suit.—All the elementary writers agree that in order to stop the running of the statute of limitations by suit not only must the initial step required by the statute be taken, but there must also he a bona fide intention that the process should be served at once upon the defendant, and such is practically the ruling of this court.</p> <p>4. Excuses for Failing to Issue Process.—Physical debility of plaintiff does not suspend the statute of limitations, nor does it excuse a failure to bring or prosecute the suit within 'the time prescribed by law. The citation should issue for the defendants to the-place of their alleged residence within a reasonable time after the petition is filed.</p>

<p>The opinion states the case.</p>

<p>1. Warranty of Title — Practice. —The doctrine as established in this State is that the warrantor can not only be required to defend the title of the warrantee in a suit for the land, but after being so brought in the defendant can plead over against him and recoA'er on the warranty in the same suit if the title fail.</p> <p>2. Measure of Damages on Eviction.—Unless it be shown that the warrantee has been in possession, on his title failing he is entitled to his purchase money and interest from the time of payment.</p> <p>3. Effect of Plea of Not Guilty.—That the defendant calling in his warrantor pleaded not guilty to the suit for the land is not such admission of possession as will defeat his claim for interest upon his money paid for the failing title.</p> <p>4. Suit Against Executrix and Devisee.—Suit against Mrs. A. E. Johns upon moneyed claim, alleging that she is executrix and that she was in possession of an estate of §30,000 value as executrix and as derdsee of C. R. Johns, her husband. The cause of action Avas in breach of warranty made by her deceased husband. Held, that she could not so hold the estate, and that judgment against her “as executrix and devisee” is inconsistent and must be reversed on appeal.</p>

This is an appeal from a judgment for $2347.45 against appellant for the value of cotton placed by the plaintiff upon a platform of the defendant. The facts are given in the opinion and in report of the case in the former appeal, 69 Texas, 79.

<p>1. Trust —Rent Contract. — The rule that denies to a tenant when he is once proved to be such the right to dispute his landlord’s title can not be so extended as to take away from him the right to prove exactly what his relationship to the landlord originally was. The rule should not be so applied as to deprive a party who conveys land by a deed of the right to show the true consideration, and that it was intended to operate only as a mortgage, or that it was made upon specific trusts.</p> <p>2. Same—Case in Judgment.—A defendant in suit upon an obligation to pay rent pleaded and offered testimony to prove that the lease contract sued on was a part of a transaction wherein the defendant had conveyed the land to the plaintiffs in trust to secure them upon a note on which they were sureties of defendant, and that the land had been sold and the trust satisfied, leaving a balance due the defendant. It was error to exclude testimony to show these facts, and if proved defendant was entitled to recover the balance in hands of the plaintiffs.</p>

<p>1. Charge—Wealth of Parties. — In suit by counsel for fees against a railway company, no testimony being admitted to the wealth of the parties nor was the issue raised otherwise, it was proper to refuse an instruction asked by the defendant “that no greater fee would be reasonable against a wealthy man or corporation than a poor man for the same services,” etc.</p> <p>2. Attorney Fees—Charge—Reasonable Value.—There being in evidence the opinion of several lawyers to the value of- the services for which compensation was asked, there was also testimony to the amount involved and work performed by the plaintiffs as counsel for the defendant. Held, the charge of the court was proper, as follows: “In ascertaining the reasonable value of the services of plaintiffs you will consider the nature of the litigation, the amount involved,' and the interests at stake; the capacity and fitness of plaintiffs for the required work; the services and labor rendered by plaintiffs; the length of time occupied by them, and thebenefit, if any, derived by defendant from the litigation. And you are further instructed to look to all the evidence in the case and to exercise your sound discretion and judgment thereon, and allow plaintiffs such reasonable amount as you may believe they are justly entitled to. ”</p> <p>3. Employment of Counsel—Ratification.-—See facts in evidence requiring the submission to the jury of the issue of the ratification by the Missouri Pacific Railway Company of the employment of Clark & Dyer in a suit to which it was a party.</p> <p>4. Reasonable Value—Attorney Fee.—See facts sustaining a verdict for §5000 for reasonable value of professional services performed by counsel.</p>

<p>The opinion states the case.</p>

<p>1. Usury — Pleading. — Defendant pleaded that “on the 23d day of September, 1884, defendants executed to plaintiff a note for §2500 due four months after date with 12 per cent interest per annum from maturity, and that on the 26th day of January, 1885, defendants renewed the note by executing to plaintiff another note for §2700 due four months after date hearing 12 per cent interest from maturity.” JHeld, the allegations were sufficiently certain, showing that the renewal was for more than the principal and accrued interest, and so usurious.</p> <p>2. Usury.—Where usurious interest is included in a note given in renewal of a note the vice of usury' will inhere in all subsequent renewals of the note.</p>

<p>The opinion states the case.</p>

<p>1. Trust—Volunteer Trustee.—Loomis & McLachlen had been agents for Satterthwaite, and had authority to look after and to sell lands for him. He temporarily left the State, withdrawing his lands from sale. Loomis & McLachlen conducted some other business for him .in his absence. While absent a judgment was rendered against him and under execution the lot in controversy was levied on and sold as his property, the appellees Loomis & McLachlen becoming purchasers. There was testimony tending to show that the purchase was made for Satterthwaite. There was also testimony that the agency ceased before Satterthwaite left the State. The lot was sold and Satterthwaite sued for its value. Held:</p> <p>1. Even if the agency had terminated as to the lands, yet. if Loomis & McLachlen in fact bought the land for the use and benefit of Satterthwaite and to protect his interest, they thereby made themselves his agents in the matter by their voluntary acts in assuming to act, and if. acting for him the purchasers would be deemed his trustees holding the title for him subject to any equities arising in their favor.</p> <p>2. The issue being made in the testimony it was error to refuse an instruction requested submitting it to the jury.</p> <p>2. Same—Case Approved.—-"Whether one performs acts of agency for others under an employment by them or as a volunteer can make no difference as to his responsibility growing out of that relation. In equity an agent is disabled from dealing with the matter of his agency on his'own account. Dennis v. McCagg, 32 Ill., 429.</p> <p>3. Practice.—In suit against an agent for the value of property held in trust and by him sold without authority the defendant could set off the amount of his expenditure in purchasing and redeeming the land for the benefit of the plaintiff.</p>

<p>Error from McLennan. - Tried below before Hon. Eugene Williams.</p> <p>The opinion states the case.</p>

<p>1. Joint Wrongdoers.—That another party was also guilty of culpable neglect i& not a defense in an action against a party by whose negligence an injury resulted.</p> <p>2. Calling the Docket.—A party can not complain at the second calling for trial of a cause upon the jury docket which had been passed to the end of the docket when all cases preceding it at the time it was so passed had been tried or continued, although other cases placed upon the docket subsequent to the passing of the case were undisposed of.</p> <p>3. Measure of Damages for Injury to a House.—The house partially burned by the negligence of appellant’s employes was owned by the same person owning the lot on which it stood. The measure of damages would be the lessened value of the premises caused by the partial destruction of the house, with interest from the time of the act. It was error to admit testimony made the basis of a finding by the court giving as damages the cost necessary to restore the house to its condition before the fire causing the injury.</p>

<p>1. Possession as Evidence of Ownership of a House.—In an action for damages for the destruction of a house by the culpable negligence of an employe of the defendant it was competent to prove ownership by parol by showing exclusive possession of the premises. ,</p> <p>2. Same — Sufficient Evidence. — Plaintiff proved that he had built the house, and that at the time it was destroyed by fire two rooms were occupied by his tenants, two were vacant, and another occupied by himself as an office. Held, this was sufficient evidence of exclusive possession.</p> <p>3. Leading Question to Witness. ■— The question which brought out the evidence as to possession may have been leading, and the broad assertion of ownership may have been but the assertion of an opinion, but these matters furnish no ground for reversal in view of the evidence of right furnished by the possession proved.</p>

<p>1. Purchaser Pendente Lite—Exception.—The rule which holds one acquiring an interest in property pending litigation in regard to it bound by its result is one indispensable to the administration of justice, but the rule has no application in a case in which the judgment in the pending litigation is rendered through collusion between the parties on a cause of action having in part or in entirety no real existence.</p> <p>2. Pleading — Allegations Sufficiently Charging Fraud and Collusion.— See allegations held sufficient in charging that a judgment in -a suit pending when plaintiff became interested in the property was rendered by the fraudulent collusion of the parties, whereby a larger amount was adjudged than actually was due, and a lien unlawfully declared upon the property involved.</p> <p>3. Intervention.—When facts existed authorizing intervention in a suit pending by a lis pendens purchaser, the failure to intervene will not conclude the rights of such purchaser when he did not know the necessity for such intervention and the facts were withheld by the parties alleged to have collusively agreed upon a judgment not authorized by the facts.</p> <p>4. Misleading Acts of Counsel. —See allegations held sufficient to show bad faith on part of a party or by his counsel in regard to the suit pending, and having had the effect of misleading a party adversely interested in the property, resulting in such party failing to intervene so as to protect his interest in the original suit.</p>

<p>1. Verdict Insufficient.— “We the jury find for the plaintiffs, defendant to pay balance of purchase money on tract of land sold by Adams to Heisch, with interest at 10 per cent per annum from date of sale until procuring patent on same and 8 per cent from said date until suit was instituted on same, July 16, 1888.” Held, this verdict could not support a decree of foreclosure, nor was it sufficiently definite in the amount of the recovery.</p> <p>2. New Promise—Pleading.—Adams conveyed by quitclaim 160 acres of land to Heisch, the purchaser paying part cash and giving notes for deferred payments. Before the notes were barred by limitation Heisch, dealing with an agent of Adams’ heirs, agreed with the purchaser not to sue until a patent should be procured. The patent was procured and suit was brought, the petition setting out the facts. The notes were barred by limitation at suit. The court properly charged that upon the promise to pay upon issuance of patent and the obtaining of the patent the holders of the notes could recover, and the notes being the basis of the amount to which the agreement referred, were properly set out in the pleadings as part of plaintiff’s case.</p> <p>3. New Consideration.—The extension of time and the obtaining of the patent under the circumstances were a consideration for the new promise, binding what, but for some new consideration, would have been invalid as a promise without consideration.</p>

<p>1. Chattel Mortgages, Unrecorded. — Article 2468, Revised Statutes, does not make fraudulent a reservation of lien by a vendor of personal property not recorded where possession has been held by the purchaser two years: A chattel mortgage under Act of 1879 (art. 3190b, Rev. Stats.), if not registered is not void as between the parties to it.</p> <p>3. Same — Suit to Foreclose. — Suit was instituted to enforce payment of purchase money for personal property of the seller who reserved the right of ownership until the purchase money should be paid. The property, an ice machine, had been fixed to the realty and had been in the purchaser’s possession over two years. The purchase money notes reserving the interest were not recorded. Subsequent to the filing of the suit the defendant made an assignment and the property was sold by the assignee. Held, that as between plaintiff and‘the defendant the defendant could not take advantage of the nonregistration, nor of his possession, nor could the purchaser, as the suit to foreclose was pending at the time of his purchase from the assignee.</p> <p>3. Assignment.—The assignment by the defendant after suit would not affect the right of the plaintiff to payment out of the property fixed by suit.</p> <p>4. Fixtures—Mortgaged Personalty.—Where personal property is sold and the title is reserved in the vendor until the payments for it are made, and with consent of the seller the purchaser attaches it to his real property, as between themselves its character as personal property is not changed. The same rule obtains where a mortgagor in possession annex&s the mortgaged chattel with the consent of the mortgagee to his land, the mortgagee's rights are not affected and he may treat it as personal property. For a stronger reason would the rule apply where the fixture was attempted without the consent of the mortgagee.</p>

<p>1. Nonresident Parties—Practice.—Suit against Cabell as United States Marshal and his sureties for the value of goods seized and belonging to plaintiffs. The marshal had taken an indemnity bond; the principals, however, were nonresidents. The marshal made his indemnitors parties and asked that the case be continued in order to obtain service on the principals. " This was refused. Held, without deciding that the statute (Sayles’ Civ. Stats., art. 4525a) relating to damage suits against “any sheriff, constable, or deputy of either,” can be applied to United States Marshals, that the court did not err in refusing to postpone the case.</p> <p>2. Same.—The suit for damages for the seizure of the goods was not a suit on the indemnity bond; no writ of attachment could issue in the suit, and there was no method by which service of citation could be had upon the nonresident principals. It would have been idle to attempt the service on them.</p> <p>3. Jury Docket.—Answer was filed March 9, 1888, and a jury demanded, but the jury fee was not paid until April 12, which was after the time allotted for the trial of jury cases had passed, and when the cause-was called on the nonjury docket the defendant asked that it be placed on the jury docket. This the court refused. As early as March 27 the counsel for defendant had been informed by the court that no cause would be placed on the jury docket before payment of the jury fee. Held, the refusal of jury was no ground for reversal.</p> <p>4. Jury Cases—Statutes—Practice.—District Courts are required to keep a jury docket. (Rev. Stats., arts. 1289, 3071.) Clerks are required to keep a jury docket, and thereon to place cases under the order of the court when the jury fee is paid (Rev. Stats., arts. 3069, 3070), and whenever the failure to make this payment is delayed for such time as to materially affect the rights of the parties or to interfere with the orderly conduct of the business of the court a jury trial ought to be refused.</p> <p>5. Joinder of Parties — Indemnitors. — In an action for damages against the United States Marshal and his sureties for the wrongful seizure of goods the property of the plaintiffs the sureties on the indemnity bond were properly joined as defendants. Stiles v. Hill, 62 Texas, 431.</p> <p>6. Indemnitors Jointly Guilty with. Officer. —■ All persons who contribute to the commission of a tort through which injury results to another are responsible as principals, and such persons as induce a wrongful levy to be made by giving to the officer making it an indemnity bond may be treated as trespassers.</p> <p>7. Guardian and Ward — Contracts. — A guardian in business becoming involved made a conveyance of his stock of goods to parties to whom he was indebted “in consideration of the settlement in Ml of the several debts aforesaid * * * and of the cancellation and receipt in full of said debts and claims on the part of the several creditors aforesaid. ’ ’ One of the named creditors was a minor and the ward of. the grantor. The minor was absent and knew nothing of the transfer before the seizure of the goods. Add:</p> <p>1. That the guardian could not make with himself such a contract for his ward.</p> <p>2. The transfer of the goods to the extent of the attempted sale to the minor was void, and the goods to that extent were subject to the seizure.</p> <p>3. If the minor had personally assented to or made the contract it would not have been void, but only voidable at his instance, and he could have recovered for the seizure.</p>

<p>1. Variance.—Attorneys representing Mrs. Elizabeth James made a contract with her to represent her in asserting homestead rights in property seized under execution against her husband, at that time not living with her. She made a contract assigning one-fourth of the recovery to said attorneys. The contract was signed A.- P. James. They prosecuted her claim to success. Before the close of the litigation she left the State intending to return, but she died. Administrator upon her estate was proceeding to collect the judgment recovered. The defendants then sought to enjoin the collection, asking that the judgment be set off against theirs against the husband. The attorneys intervened claiming one-fourth under their contract with the deceased. The court below gave judgment in favor of the interveners, and as to the other three-fourths perpetuated the injunction. Held:</p> <p>1. The variance in the name signed to the contract and that by which Mrs. James was known was immaterial under the facts of the case.</p> <p>2. The result of the suit established her right to recover against her husband’s creditors, so her assignment of a part of the judgment was good against them.</p> <p>3. The money recovered for the seizure of exempt property was also exempt from the claims of creditors.</p> <p>4. If Mrs. James subsequently had abandoned the State so as to lose her right to exemptions such loss did not affect her assignees of part of the value of said property.</p> <p>5. It sufficiently appeared that at the time of the litigation Mrs: James had been abandoned by her husband and she could act alone.</p> <p>2. Community Property—Administrator.—It is not contemplated by our statutes that an administrator of the wife shall have the right to administer the community property while the husband is living. Moody v. Smoot, 78 Texas, 121.</p> <p>3. Abandonment of the Wife by Husband.—The abandonment which invests the wife with authority to act without being joined with her husband while she lives does not necessarily carry with it the right to administer it after her death.</p>

<p>The opinion states the case.</p>

<p>1. Trial Amendment. — 'When a ease is called for trial and exceptions to the answer are sustained a trial amendment is the proper technical pleading in- order. Rule 27 for District Courts.</p> <p>2. Same—Original Amendment.—The court had the discretion to relax the rule (No. 27) in the interest of justice. The court may allow an original amended answer to he filed. If new matter be then set up that plaintiff is not prepared to meet by pleading or evidence he could have amended also, and even continued the cause if necessary. Such amendment, no injury being shown, is not error.</p> <p>3. Expert Testimony. — Expert testimony is resorted to for the purpose of informing the court or jury upon subjects not commonly understood, but where the nature of the inquiry appeals to the common understanding and ordinary intelligence of mankind it would be improper to admit opinions of experts or other persons.</p> <p>4. Eact Case—Similarity of Trademarks.—All the facts were before the court; the trademarks, the labels, the jugs, and the packages as presented for sale in the market by the proprietor of “Radam’s Microbe Killer,” and by proprietor of the “Microbe Destroyer.” It was the province of the court trying the case without a jury to decide what impression would be made by them upon persons of ordinary intelligence and care. In such a case an expert should not be allowed to decide for him. It was therefore no error in the trial court in rejecting testimony offered to prove the similarity of the two trademarks.</p> <p>5. Microbe Killer — Case Adhered to. — It has already been decided by this court (Alff & Co. v. Radam, 77 Texas, 540), “that the words ‘microbe killer,’ as used by appellant, do not constitute a trademark,” and that they were words in common use, employed by him in their ordinary sense, and that he had not acquired any proprietary right to their exclusive use.</p> <p>6. Labels, Trademarks, etc.—If the labels, trademarks, and packages, one or all combined, were not calculated to deceive an ordinary purchaser, there is no infringement. See facts in illustration.</p> <p>7. Test of Similarity or Identity. — The resemblance must be such as to deceive a purchaser of ordinary care. This is the correct rule in eases where there is no intention to defraud.</p> <p>8. Intent to Defraud—Fact Case.—See facts supporting the finding of the trial court (acting without a jury), that there was no intent on part of the defendant to defraud the plaintiff.</p> <p>9. Incompetent Evidence •— Hearsay. — If persons were deceived by the trademark “Microbe Destroyer” they should have been called to prove it. To allow a witness to detail what they told him would be hearsay.</p> <p>10. Immaterial Testimony. — Testimony to loss by the sales of the defendant would be immaterial when the main issue, the interference with the rights of plaintiff, was not sustained.</p> <p>11. Immaterial Error in Ruling. —-That the court erred in striking out the allegation of amount of damages alleged was immaterial when the plaintiff failed to show any facts upon which damages could have been allowed.</p> <p>' • 12. Irrelevant Testimony.—The issue being an alleged infringement upon the trademark of the plaintiff, testimony offered to prove by reputation or by the declarations of the defendant that the preparations manufactured by the defendant were identical with those by the plaintiff were irrelevant and were properly excluded.</p>

<p>The opinion states the case.</p>

<p>1. Pleading-— Custom..— The petition alleged an express contract and its violation. There was conflict in the testimony whether such contract was made. In rebuttal plaintiff over objection was allowed to prove the general custom. Held, that custom is irrelevant where the issue is upon an express contract, either as original or as rebutting testimony.</p> <p>2. Practice in Supreme Court. — On appeal where the trial in the lower court was without a jury the admission of irrelevant testimony is usually not a ground for reversal, but where it is manifest that the improper testimony had a controlling effect upon the action of the trial judge the case will be reversed because of such testimony.</p> <p>3. Opinion Testimony.—It was proper to exclude the testimony, “no well driller would put his tools in a well having iron dropped in it like that described as having been dropped in the well by the plaintiff. ’ ’ It was but the opinion of the witness, and the facts upon which it was based were not given.</p>

<p>School District—Injunction to Protect its Limits, etc.—Junction City incorporated for school purposes only. Its boundaries were a square of six miles length of sides. It included a part of School District No. 6, taking five square miles of its territory, its school house, and seventeen of the twenty-five children of scholastic age. District No.. 6 had been regularly organized and had maintained a school. The Junction City authorities were proceeding to collect a special school tax of the annexed part of District No. 6. The trustees of the latter applied for an injunction, alleging the facts, and that the inhabitants of the annexed territory were opposed to the invasion of their territory, etc., and that if allowed it would deprive the inhabitants of the district of school privileges. Temporary injunction was issued. The defendant demurred and urged a motion to dissolve. The court overruled the demurrer and motion, perpetuating the injunction. Held:</p> <p>1. The law that permits cities and towns to incorporate for school purpdses does not intend to grant them the privilege of extending the limits of the town boundaries so as to absorb and include remote rural school districts that are no part of the original town, especially when the incorporated limits, without the consent of the inhabitants of the rural district, include an unreasonable extent of territory.</p> <p>2. There is no inflexible rule of law that determines when the incorporated territory is excessive and unreasonable in limits. This is only ascertained by an inquiry into the facts of each particular case.</p> <p>3. The demurrer and motion to dissolve were properly overruled.</p> <p>4. The allegations in the petition not having been denied, it was not error that the injunction was perpetuated without evidence on the hearing.</p>

<p>1. A Justice of the Peace may Buy Land at Sale Under Execution Issued by Him.—-We have been unable to find any provision of law, nor has any been cited, that forbids a justice of the peace from purchasing property sold at public vendue under execution issued by him in a suit tried by him. Such purchase is not void, nor even voidable.</p> <p>2. Proceedings to Avoid Execution Sale of Land.—Where land is sold under execution issuing from a Justice Court and such sale is voidable it seems that proceedings to avoid such sale after the deed has been made, for fraud, would have to be taken in the District Court of the county where the land is situated. The Justice Court could have no jurisdiction by motion or on original proceeding for that purpose after the execution of the deed.</p> <p>3. Execution for Costs. —An execution for costs is properly issued in name of the party recovering costs. It should not be issued in name of the officers entitled to the costs.</p> <p>4. Inadequacy of Price. — Gross inadequacy of price alone is not ground for avoiding a judicial sale, although strongly indicative of fraud.</p> <p>5. Collateral Attack.—Plaintiffs in trespass to try title held land by deed from a purchaser of it at execution sale. The defendants in possession in reconvention pleaded that they held by deed from the heirs of the defendant in the execution, and set up facts as avoiding the sale, tendering the purchase money and interest. The plea was made more than ten years after the sale. No other parties were made or asked to be made. Held, that the plea in reconvention could not be considered as a direct attack, but only collateral, and that matters in avoidance of the sale would not avail as a defense, or as grounds for recovery by the defendants, the sale not being void.</p> <p>6. Stale Demand — Periods of Limitation.—Stale demand must be pleaded; and it seems that where the attack is not upon the judgment itself, but only upon the subsequent proceedings taken in making the sale, that ten years would be allowed within which proceedings might be taken; but if the attack is against the judgment only two years would be allowed.</p>

<p>■ 1. Agreement by Firm Not to Renew Their Business Binds Its Members. "Welsh Bros, sold out their undertakers' goods in Denison and further stipulated by the firm name “not to start the undertaking in Denison * * * so long as their vendee is in business.” Held, that the obligation bound each- member of Welsh Bros.</p> <p>2. Same—Testimony. — It was competent in a suit upon a contract not to start business again to prove the estimated value of business done by the defendant who had broken his contract by starting again in business.</p> <p>3. Immaterial Finding by Court. —The court in its findings estimated the value of the business done by defendant after he had reopened business in violation of his contract not to do so. An erroneous finding as to the time of such resumption was immaterial. The estimation was upon the entire time and an error in date could not have injured the defendant.</p> <p>' 4. Failure to Rebut. — The testimony to the business of defendant and consequent injury to plaintiff was indefinite. That the defendant failed to introduce testimony in his power leads to the presumption that such explanatory testimony would not have benefited him.</p> <p>5. Injunction.—That plaintiff recovered damages already suffered for a breach of the contract not to reopen business is no reason for refusing an injunction protecting him for the future.</p>

<p>1. Practice in District Court—Failure of Plaintiff to Prosecute.—Proper practice on tlie failure of the plaintiffs to he present and prosecute their action of trespass to try title, the defendants having filed no pleadings setting up facts in defense to support a decree removing a cloud, would have required that the cause he dismissed without any action. But we áre not prepared to hold that the court did not have jurisdiction to try the cause on its merits and to render a judgment for the defendants even in the absence of plaintiffs and of their attorneys,</p> <p>2. New Trial after Term. —Upon application for new trial after the end of the term at which a judgment was rendered the proper practice is that the entire case be tried upon its merits, and a decree to follow disposing of the case.</p> <p>3. Absence of Counsel.—The absence of counsel of the plaintiffs when the court proceeds to hear and determine the case is not a ground for a new trial when such absence is negligence.</p> <p>4. Nonappearance of Plaintiff on Trial.-—If the court was without jurisdiction to try the case and dispose of it when reached in absence of the plaintiffs, then the effect of the proceedings would be that following a dismissal of plaintiffs’ suit; they thereafter could take no benefit from the suit so dismissed.</p> <p>5. Limitation of Three Years. —Defendants entered upon the land sued for in April or May, 1884. They held adverse possession continuously thereafter. Suit was brought by some parties August 26, 1887, and by others January 23, 1888. Defendants held under heirs of the patentee. There was no replication avoiding the statute. Held, that no other judgment could be rendered than for the defendants.</p> <p>6. Stale Demand.—The plaintiffs in trespass to try title claimed the land as heirs of L. Smithers, who died in 1842. They alleged and introduced testimony tending to show that the land certificate under which the land was secured was bought by one Calvert, administrator of L. Smithers, in 1852, and that Calvert recognized their title until his death in 1867. Calvert, however, obtained title to the certificate from its graptee and in 1856 the patent issued to Calvert. The widow of Calvert deeded the land to her children, who sold to defendant Pumphrey. The defense of stale demand was pleaded. Held, that however meritorious the claim of plaintiffs may have been, after the lapse of so many years no court ought to enforce the trust, and especially so against one who bought the legal title that had stood unquestioned for thirty years before he bought, in ignorance of the claim asserted against him.</p>

<p>The opinion states the case.</p>

<p>1. Incorporation of City Under General Law.—Oak Cliff, which was incorporated under the general laws of the State, embraced within its limits an area of about ten square miles, of which only about two square miles are covered by the actual city. The territory outside of the city proper is composed of farms and unoccupied lands. Held, that the inhabitants of the city proper had no power to include the adjacent lands, and the attempt to do so was without authority of law, and the incorporation was void.</p> <p>2. Case Adhered to. — The State v. Eidson, 76 Texas, 302, adhered to, and the rule extended to incorporations for all purposes under article 340a, Sayles’ Civil Statutes. The inhabitants of the town or city, while authorized to incorporate, can not extend at -will the limits of such corporation.</p> <p>3. Judicial Questions. —Whether the action of the inhabitants of Oak Cliff in attempting to incorporate their city is such as the Legislature empowered them to do is a judicial question. Where by special act thelimits of a town or city are fixed by the Legislature the courts can not interfere.</p> <p>4. Act of County Judge Ordering Election.—The law (Rev. Stats., art. 508) provides that the county judge shall order the election when an incorporation is prof-■posed “if satisfactory proof is made that the city contains the requisite number of inhabitants.” Action by, the county judge upon this question is final, but no such provision exists as to the limits. The area is indicated by the aggregation of residences and appurtenant structures constituting the city to be incorporated. ■</p> <p>5. City Limits—Increased Values.—That land values are increased by its proximity to a town does not constitute the land part of such town, in an attempt at incorporation, nor will the mere subdivision into lots of the adjacent lands. A city does not extend beyond the area occupied by its houses and inhabitants.</p> <p>6. Practice.—That a map incorrect in part was admitted in evidence is no ground for reversal, and especially so when the trial was ■without a jury.</p> <p>7. Practice in Quo Warranto. — That one of the relators resided in the city proper of Oak Cliff was of no consequence and immaterial. It was not error to reject testimony to such fact offered in rebuttal. *</p> <p>8. Parties in Quo Warranto.—In an information questioning the legality of the incorporation of a town or city, and where the theory of an attack upon the. right of city officials to exercise their offices is that there is no such corporation, then it would seem that the pretended corporation should not be made a party.</p> <p>9. Same. — It is sufficient to proceed against the persons assuming to compose the governing body. It was here necessary to establish the fact that the attempted incorporation of the city of Oak Cliff was void from the beginning; that being the ground upon which the judgment of ouster was reached against the mayor, etc., it was not error so to declare in the judgment.</p>

<p>The opinion states the case.</p>

This is an appeal from a judgment in favor of Hughes and against the appellant for $150, value of a mare killed upon the track of the defendant. This is a second appeal. 64 Texas, 290.

3. Findings of Fact — Practice.—The omission of the court to find upon a material matter when its attention was not called to such omission is no ground for reversal. The opinion states the case.

<p>Tax Collector—Sureties—Liability. —A tax collector re-elected was in default upon the taxes due on the last of May, 1888. He qualified and gave bond December 17, 1888, was enjoined from making collections December 21, 1888. One of his sureties in December, 1888, advanced of his own funds money paying the deficit at the May settlement, 1888, taking from the collector tax receipts for taxes for the next year, which he collected to reimburse himself. The surety so doing was a surety upon both bonds. In an action for default upon the last bond upon above facts, held:</p> <p>1. That the surety in paying the default of his principal used his own money, as was his duty.</p> <p>2. He could acquire no interest adverse to the State by taking as security the tax receipts upon the next year.</p> <p>3. The taxes when paid on those receipts became money of the State, he holding it in trust tor the State.</p> <p>4. The State made a prima facie case when it introduced the bond and certified account from the Comptroller's Office showing the deficiency sued for.</p> <p>5. To disprove the case so made it devolves upon the surety to prove that the money had been diverted before the bond sued upon was executed.</p> <p>6. In absence of proof otherwise it is presumed that an officer has performed his duty, and that a tax collector has the moneys collected by him.</p> <p>7. It was not shown whether the surety collected the receipts he had before or after his principal ceased his official duties. The sureties failing to explain matters which evidently they could, the presumption is against them.</p> <p>8. The court below properly rendered judgment against the sureties on the bond.</p>

<p>The opinion states the case. .</p>

<p>Land Office Copy of Act of Traveling Board.—Original certificate No. 573 was originally issued to F. Rosalis for a league and labor of land by board of land commissioners of Nacogdoches County. The certificate was located upon land in that county June 1, 1838. On June 13, 1838, J. Cruez, assignee of Rosalis, conveyed the land to Clark and Clary by deed acknowledged June, 1838, before a deputy county clerk, and it was at once recorded in that county. April 29, 1852, a duplicate for certificate No. 573 for one-third of a league of land was issued from the Land Office to Cruez, assignee of Rosalis. This was located and since claimed by holders under Clark and Clary. In an action of trespass to try title by heirs of Cruez the defendants offered a certified copy from the Land Office showing the acts of the traveling board touching the Rosalis certificate, No. 573, wherein the quantity was reduced to one-third league, and showing that the original for one league and labor had been located in Nacogdoches County. Held:</p> <p>1. The transcript from the Laud Office showing the action of the traveling board was competent to identify the one-third league certificate as taking the place of that for a league and labor having the same number and grantee.</p> <p>2. It also was competent showing the location of the certificate in Nacogdoches County, thereby legalizing the registration in that county of the deed from Cruez to Clark and Clary for the Rosalis league and labor.</p> <p>3. The conveyance of the land located by the Rosalis league and labor of land passed to the vendors the certificate under which located. The reduction of it to one-third league did not affect its ownership.</p> <p>4. While the registration in Nacogdoches County would not be notice in any other county where the certificate might be located, such registration was legal, and a certified copy of the deed from such record is competent on proof of loss of original, etc.</p> <p>5. That a deputy county clerk in 1838 could take proof of a deed for registration is not an open question.</p>

<p>The opinion states the case.</p>

<p>Limitation. —"Where a tract of land is subdivided and sold to different parties a subsequent purchaser of the whole league entering under such deed can not claim by limitation those subdivisions upon which he has never entered. His adverse possession of other subdivisions will not extend to such as have not been invaded by his actual possession.</p>

<p>1. Parol Agreement Fixing Disputed Division Line.—Agreements of a recent date fixing a boundary line where there was doubt and whether the parties were right or wrong in their belief that the line they established and agreed upon as the boundary of their land was precisely where it ought to be, have been favored and upheld. Such is the case made by the facts in this appeal.</p> <p>S. Practice on Appeal. — Objection to parol testimony made first on appeal will not be considered.</p>

Tried below before Hon. P. M. Stine. H. Specht, the appellant, brought this suit in the District Court of Wichita County, September 24, 1888, against A. B. Collins, the appellee, for specific performance of an alleged contract on the part of Collins to sell and convey to him (the plaintiff) 3200 acres of school lands and in the alternative for damages for breach of the contract.

<p>Error from San Saba.. Tried below before Hon. A. W. Moursund.</p> <p>The opinion states the case.</p>

<p>1. Degree of Certainty of Proof in Civil Cases.—Because the facts in a civil case may involve a criminal act does not change the degree of certainty or extent of proof required in civil cases. It was not error therefore to refuse an instruction in an action for damages for maliciously poisoning three dogs that the plaintiff’s case should he established beyond a reasonable doubt.</p> <p>2. Charge—Naming Amount of Damages Claimed, etc.—That the charge named the limit of the claim for exemplary damages and did not direct the jury to find separately the actual and exemplary damages, there being no request for more definite instructions, is no ground for reversal. The verdict was only for the amount of actual damages claimed.</p> <p>• 3. Verdict—Actual and' Exemplary Damages.—When the jury are not instructed to find separately actual and vindictive damages a verdict for the plaintiff for a gross sum will support a judgment.</p> <p>4. Dogs—Valuation of.—Dogs may be shown to be of value although there may be no market value. See proof of value held sufficient.</p> <p>5. Dogs—Property Protected by Law.—The law recognizes property in dogs, and for a trespass and infraction of this right the law gives the owner a remedy.'</p>

<p>. The opinion states the case.</p>

<p>This is a suit for a writ of injunction to restrain the defendants from making an alleged illegal expenditure of public money in the erection of public buildings at Floyd City, for county purposes, upon the ground that said place had not been legally selected as the county seat of Floyd County at an election held for that and other purposes; and for a'writ of mandamus to compel the newly elected county judge in said county to order an election for a county seat in said county. The plaintiffs’ petition was presented to the judge of said district in vacation and he declined to grant the writs therein prayed for, but made an order directing the district clerk to file said petition to be tried upon its merits at the regular term of the court in said county. The defendants filed exceptions to plaintiffs’ petition when the case was called in its regular order, which exceptions were sustained by the court, and plaintiffs declining to amend the cause was dismissed by the court. Plaintiffs appealed.</p>

<p>1. Amendment Forbidden After Announcement for Trial.—In view of the statute on the subject (Rev. Stats., art. 1192), reading, “the pleadings may be amended under leave of the court upon such terms as the court may xuescribe before the x>arties announce ready for trial and not thereafter, ’ ’ a permission to amend after announcement of ready is error.</p> <p>2. Immaterial Error.—An amendment was permitted after the trial began; the pmqiose was to permit an allegation by xflaintiff showing a release of a levy made in another county upon a flock of sheex); attachment had run also in the county where the suit was filed, and had been levied upon the same with other property. There being no allegations in the xflea by defendant in reconvention covering the levy in the other county the testimony to that fact was irrelevant. The amendment allowed for the purpose of avoiding the irrelevant testimony was immaterial.</p> <p>3. Attachment—Wrongful, Irregular.—An attachment was levied uxDon xiersonal property of the defendant. The xiroperty was sold by order of the judge and the x>roceeds were deposited with the district clerk. The attachment was quashed. The defendant reconvened for damages for the wrongful seizure. The court submitted the truth of the matter sworn to as grounds for the attachment as the only issue determining whether the attachment had been wrongfully sued out. This ruling approved, and the court x>roperly refused a charge upon the effect of the order quashing the writ that the order was conclusive that the writ had been wrongfully issued. . .</p> <p>4. Same.—If the remedy of attachment is resorted to when none of the grounds specified by the statute (Rev. Stats., art. 152) exist, the issuance and levy of the writ constitute a wrong 'for which the party procuring its issuance is liable in damages, as also his securities upon the attachment bond.</p> <p>5. Quashing Attachment Releases Property Seized.—When the attachment was quashed the proceeds of the sale of the attached property then deposited with the clerk should have been restored to the defendant.</p> <p>6. Same.—The judgment of the court apxflying the funds in the hands of the clerk as a credit ujion the judgment in favor of plaintiffs was contrary to the law. It in effect held that the attachment was in full force and disregarded the order quashing, etc.</p>

<p>1. Contributory Negligence by Minor.—Whether the mind of a boy 10 years of age is sufficiently mature to make him responsible for his own contributory negligence is a question of fact for the jury. It should not be decided by the court on demurrer to the petition.</p> <p>• 2. Same — Case in Judgment. — That the petition alleged that the child of 10 years had mental capacity to make a contract for his carriage as passenger and knew the movement of the trains of the road upon which he was passenger, do not show admitted intelligence such as to render him responsible for contributory negligence when injured.</p> <p>3. Gross Negligence.—In an action for personal injuries not resulting in death, inflicted January 20, 1887, it was not necessary to allege that the injury was caused by the gross negligence of the defendant, a railway company, as would have been had death resulted.</p>

<p>The opinion states the case.</p>

This is an appeal from a judgment in favor of Long for $1500 for personal injuries suffered by falling between the side door of a baggage ear and the platform while attempting to step from the car to the platform. The plaintiff was well acquainted with the surroundings. The accident, however, was in the night-time.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

This is an appeal by the Western Union Telegraph Company from a judgment for $1292 for failure to deliver a message delivered at its office at Whitesboro, Texas, for transmission to Brownwood.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Married Woman’s Right to Acquire and to Partition Land.—A contract to acquire land by a married woman by means of a land certificate held by her as her separate property, as well as a contract for the partition of her land, may be by parol.</p> <p>2. Same—Written Declarations may Show such Contracts. — Principle, as well as the decisions of this court, warrant the conclusion that such contracts of a married woman as she may properly make by parol for the acquisition of lands or for its partition may equally well be proved by her written declarations, even when not acknowledged by her in the manner that the statute requires to make effectual her conveyance of real estate.</p> <p>3. Same—Married Woman’s Signature as a Fact.—Nor do we see any good reason why, when her signature to a written instrument may be proved as a fact, and not for the purpose of establishing a conveyance of her property, the rules with regard to the proof of the execution of ancient instruments should not apply.</p> <p>4. Same—Case in Judgment.—Mrs. B., a married woman, with her husband's consent,, contracted with P. De Cordova that De Cordova should obtain and locate land, certificates in which she was one-half owner as separate property, and for such services he should have one-third of the land he should acquire. De Cordova performed his part of the contract. Three tracts were acquired. De Cordova’s interest was taken out of two of the surveys. The deed from Mrs. B. for the locative interest was not properly acknowledged by her. It bore date 1855, more than thirty years before the trial, and she was joined in it by her husband. Subsequently in a conveyance of the remaining part of the land Mrs. B. and her brother, the other joint owner, expressly ratified the conveyance to De Cordova. Held, that the conveyances were properly admitted in evidence, and that they were conclusive against Mrs. B. and her brother in favor of De Cordova and his assigns for the locative interest so partitioned to him.</p> <p>5. ’ Mistake in Record of Will. — In recorded copy of a will a tract of land is described as in Cooke County and conveyed to the testator by Thomas De Cordova. It was competent to prove that in the original will the name was Phineas De Cordova, and that but one deed from De Cordova to the testator was of record in Cooke County.</p> <p>6. Conclusions of Fact, etc.—The form and substance of the findings of fact and of law should be left to the discretion of the trial judge. It can not injure a party that no finding is made upon a matter in which there is no conflict in the evidence.</p>

<p>The opinion states the case.</p>

<p>This was a motion to dismiss, on a writ of error.</p>

<p>1. Ratification.—When a mortgagor ratifies a sale under an irregular or defective power the purchaser’s title is not affected by defects in the original power to sell.</p> <p>2. Mortgage by one Partner upon Partnership Property.—A mortgage upon a partner’s interest in specific partnership property to secure his individual debt may not have any effect because it may be defeated by superior equities and the proper administration of the partnership business, but it can not be treated as a nullity in its inception. If the property so mortgaged can be found and is undisposed of after the dissolution and settlement of the partnership no good reason is apparent why it may not be then subjected to the mortgage.</p> <p>3. Bill of Sale, etc., for Cattle Without the State.—The statutes prescribing the rules for sale of cattle on the range by bill of sale and registration should not be given an extraterritorial effect, held not to apply to sale of cattle in the Indian Territory between citizens of Texas, where actual possession passed and the cattle brought into the State.</p> <p>4. Suretyship. — In a suit against several sureties of an insolvent principal who died before the suit the question of suretyship could not arise. Not being settled in the judgment it could not subsequently he raised so as to affect the right to issue executions upon the judgment.</p> <p>6. Payment of Judgment.—Judgment against three sureties of a deceased principal. Execution was issued and was levied upon property of one of the defendants. He to save his property from sale paid the judgment and took a transfer of it. Held, such payment satisfied the judgment, and he had no right to procure execution upon it in name of the plaintiff for the'purpose of compelling the sale of property of another defendant.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Title by Ten Years Possession of Land.—See facts evidencing title under the statute of limitation of ten years.</p> <p>E. Homestead.—When the wife unwillingly leaves the homestead of the family and no other homestead is acquired the husband can not sell such homestead. His deed therefor passes no interest against the wife when asserting her rights.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Sale of Perishable Property in Custody of the Law.—Property in custodia legis when sold as perishable property by order of the court under the statute becomes the absolute property of the purchaser at the sale. This rule obtains as to property seized belonging to others than the defendant in the attachment under which the seizure is made.</p> <p>2. Same — ¡Remedy of Owner. — The purchaser under such sale under order of court is not bound to account to the owner of such property, though not a party to the proceedings under which the sale is made. The owners having lost their title to the property their remedy was either to sue the sheriff or to follow the proceeds into the registry of the court. The owners could intervene in the suit and have the proceeds of the sale of such property paid over to them, on inquiry and ascertainment of their right and the amount. This could be done after the proceeds had been paid over to the plaintiff in the proceedings.</p> <p>3. Same — Amount of ¡Recovery for Such Property.—In any event no more could be recovered by such intervention than the property sold- for, if less* than the value.</p>

• This is an appeal from a judgment for $1235 damages caused to appellee by the overflowing of his lands in 1887. The injury is alleged to have been caused by the negligence of appellants, receivers, to construct and maintain sufficient culverts to drain the surface water, as required by statute. The petition also alleged like injuries during the years 1885 and 1886. These were stricken out because barred by limitation.

<p>1. Pleading—Evidence Under General Denial.—While it is elementary that a party defendant can not avail himself of affirmative matter of defense not alleged, yet it is not trae that all the facts introduced in evidence, and "which may materially assist in supporting a defense or contribute to the establishment of one, are themselves affirmative matter of defense which must be set up. Nor does the rule prohibit the introduction under a general denial of evidence of facts which are merely tantamount to a general denial.</p> <p>3. Case in Judgment. — Action upon a parol contract; defense, general denial. The plaintiff testified to the contract as. alleged. The defendant denied, and further, in his testimony, over objection that it was not alleged, testified to an offer by him to plaintiff upon the subject matter but on different terms. Held, that it was not error to admit the testimony. See facts.</p>

Tried below before Hon. E. D. McClellan. The statement accompanying opinion is given. On the 22d day of November, 1881, W. G. Johnson sold to Aaron Wortham 35 acres of land in Lamar County, the deed reciting the consideration as $100 in cash paid and $250 by note of Wortham due in twelve months, no vendor’s lien being reserved in the nóte or the deed. By the 8th day of November, 1883, all the note had been paid but $50.

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>Usury—Building and Loan Association.—A building and loan association loaned to one of its members §1300, taking Ms obligation for §2000, bearing 10 per cent interest. By a transaction among the members an adjustment was made and restoration by the association to its members each of stipulated usurious interest collected. Upon faith of such adjustment new members bought stock in the company. In suit by the member making this loan to have credited upon his obligation all his payments of interest as well as his payments upon Ms stock,' and applied to the principal he was owing, and a surrender of securities, held:</p> <p>1. While the contract in fact remained usurious a stipulation otherwise could not affect the nature of the contract as usurious.</p> <p>2. Nor could new members.subscribing to stock on strength of such adjustment enforce such usurious contract.</p> <p>3. The money paid in on stock subscriptions could not be insisted u$on as payment upon the loan.</p>

<p>1. Testimony of Parties to Suit.—Under Revised Statutes, article 2248, a party to the suit claiming under a parol gift from her deceased father is incompetent to prove the transaction through which she claims. She would also he incompetent to testify to the same transaction in hehalf of her coclaimants under the same alleged gift.</p> <p>2. Decree of Divorce—Presumption.—It does not devolve upon a party producing a decree of divorce upon personal notice to prove affirmatively the jurisdiction of the court granting the divorce when offered in another State.</p> <p>3. Same. —The doctrine in this State is that in the absence of anything showing that a different construction is to be given it, a foreign judgment is held to have the same legal effect as if rendered here.</p> <p>4. Transfer of Stock in National Bank. —It seems that stock in a national bank can not be transferred by delivery of the certificate of stock.</p> <p>5. Partition by Husband and Wife.-—If a partition between husband and wife of their property in contemplation of a separation has any effect, their subsequently living together and disregarding such division would render it of no effect.</p> <p>6. B.es Adjudicata.—A former judgment can only he conclusive of such matters as were essential to be determined before the judgment could be rendered. It is not conclusive as to collateral issues, or any matter which must he inferred from it. Although the rule is familiar that all matters put in litigation in a prior suit which could have been decided are concluded, it does not obtain where the decree itself shows that the issue was not passed upon. It would have no application in a second suit involving other and different questions and parties. See example.</p> <p>7. Presumption as to Laws in'Another State. — In the absence of proof of the law of descent in the Indian Territory the court will presume the law to be the same as in this State. This obtains as to community property of husband and wife.</p>

This is an appeal from a judgment against the appellant for $4519.79 for value of hay, hay machinery, house, kitchen and stable, and ranch implements, etc., destroyed by fire from alleged negligence of the railway company. The fire was in the Indian Territory.

<p>1. Suit Upon Bond of Administrator. — While an administration is pending suit can not be brought in another court on the bond of the administrator, but after a final exhibit and account has been approved by the Probate Court the right to sue exists if the administrator refuses to pay over to the distributees as ordered.</p> <p>2. Same—Venue.—The venue in suit upon the bond of an administrator -for failing to pay over money, etc., is properly laid in the county of the residence of the parties, not in the county of the administration. _</p> <p>3. Sureties of Administrator Concluded.— Sureties of an administrator when suéd for the failure of their principal to pay over as ordered by the Probate Court upon approving his final account, are concluded by the orders of the Probate Court fixing the amount due the distributees. His failure to pay authorized suit on the bond.</p>

<p>1. Trustee May Sell After Death of Constituent.—A deed of trust was made to secure purchase money notes. One of the makers of the notes died. The others abandoned the purchase. Over four years from the death, no administration having been had, the trustee sold the land. The purchasers entered into possession, and sued the heirs to remove cloud of title upon the land. Held, that the power to sell could be executed after the death of the maker after four years from his death, there being no administration upon the estate. The plaintiffs took good title under the purchase.</p> <p>2. Default-in Payment.—In purchase money notes it was stipulated that the failure to pay any of the notes at maturity would make all the other notes due. A payment was made upon one. If upon a failure to pay any of such notes in full at maturity the other notes became due a subsequent payment of the balance on such notes would not reinstate the other notes which had already become due.</p> <p>3. Use and Occupation—Personalty Taken.—A claim for use and occupation of land and for chattels taken are for torts and can not be set off against a contract debt-. See example.</p>

<p>1. Abutting Lot Owner—Damages. —In an action for damages against a railway company for constructing a switch line along a street it was proper to charge the jury, “In estimating the damages yon will not take into consideration either the benefits or injuries to plaintiff’s property which he may receive in common with the community generally where said property is situated, resulting from operating the road, and not peculiar to him and connected with his ownership and enjoyment of said property.” 63 Texas, 467.</p> <p>2. Injury to Land Prior to Ownership by Plaintiff. — In suit for damages to the lots it was not error in the court to exclude from consideration by the jury such damages if any as resulted from the grant by the city of the right to use the street made prior to the acquisition of the land by the plaintiff.</p>

<p>The opinion.states the case.</p>

<p>1. Homestead—Proceeds of Its Sale—Separate Property.—Although upon the sale or exchange of the homestead the property thereby acquired becomes liable to execution, still if the wife’s conveyance of the homestead be obtained upon the conveyance of property given for it to her separate estate, the property so conveyed is upon a valuable consideration and becomes her separate property, and is not subject to her husband’s debts or the debts of the community.</p> <p>2. Wife may Buy on Credit and Acquire Title. —A wife having a stock of cattle and needing horses to manage them contracted for such horses and paid for them out of her separate property. Held, that, the horses became her separate property.</p> <p>3. Registration of Bill of Sale for Cattle.—Husband and wife resided in Mason County, and a stock of cattle was conveyed to the separate estate of the wife, and was there registered. The parties moved the stock to Lipscomb County, taking with them the cattle. Held, a failure to register the bill of sale in Lipscomb County did not subject the cattle to levy under execution against the husband.</p> <p>4. Increase of Separate Property.—While the calves of cows the separate property of the wife are commnnity property, still a creditor of the husband can not by levying upon the cows obtain a lien upon the unborn calves, nor can he under execution hold the cattle until the calves maybe appropriated.</p> <p>5. Immaterial Error in the Charge.—An erroneous instruction will not vitiate a judgment on appeal unless shown to have produced actual or possible injury.</p>

<p>1. Idem Sonans.-—We have no doiibfc that the names John Giboney and John Gibney should be regarded, as held by the court below, as idem sonans.</p> <p>2. Fact Case.-—See evidence held sufficient to support a judgment in favor of Elizabeth Giboney as widow of John Giboney for one-third of a league headright patented in name of John Gibney.</p> <p>3. Cases Adhered to.—Burkett v. Scarborough, 59 Texas, 498, and McPhail v. Burris, 42 Texas, 142, adhered to.</p>

<p>1. Deed for Land—Words not a Quitclaim.—A conveyance for 866J acres out of a league survey, describing the land sold, reciting a consideration, with words of conveyance as follows, “have this day, do by these presents sell, alienate, convey, and quitclaim unto said [grantee], his heirs and assigns forever, all and singular the following described tract of land [describing it], and containing 866§ acres of land, and all right, title, and interest which I have and devise to the above described tract of land by virtue of the survey aforesaid I sell, convey, and quitclaim to the said [grantee], from me and my heirs forever,” held a deed for the land, and not a mere quitclaim for the chance of it.</p> <p>3. Conveyance of Land not Patented as Affecting the Land Certificate.— Such a conveyance of part of a tract surveyed hut not patented will operate as a conveyance by estoppel of both the legal and equitable title to the land upon the issuance of patent therefor to the grantor.</p> <p>3. Effect of Floating a Location upon Equitable Eights.—The owner of a land certificate, after having conveyed a part of a survey made under such certificate, lifted the certificate and relocated it without the knowledge of his grantee of part of the first location, upon obtaining a patent in his own name for the second location he takes the legal title to the land; the equity in the grantee of the part of the first location may be lost by laches; and stale demand for ten years is a defense against such equity.</p> <p>4. Pleading—Insufficient Allegations of Trust.—The plaintiff seeking to recover a tract of land patented to another and alleging title under a conveyance of a specific part of a former location under the certificate under which the patent issued, the relocation being in several tracts, held, it is insufficient to show a relocation of one of the tracts without alleging that it was so located by virtue of the part of the original certificate applied to the land which had been conveyed to the plaintiff.</p> <p>5. Equitable Limitation—Laches. — Before patent the owner of a land certificate which had been located and survey made sold a part of the survey. He lifted the certificate and relocated it and obtained patent upon the second location without the knowledge of his vendee of a part of the first location. Seld, that the patent conveyed the legal title, and that taking the patent in his own name was an adverse claim putting into operation limitation which would run from date of the patent.</p>

<p>1. Case Adhered to—City Contracts Ultra Vires.—City of Brenham v. The Water Company, 67 Texas, 545, adhered to and applied to contract by city of San Antonio with the waterworks company of that city.</p> <p>2. City Can Not Exempt Property from Taxation. — A city can not exempt a waterworks company from city taxes.</p> <p>3. Same — Right of Taxpayer to Sue.—Although the contract by the city of San Antonio with the city waterworks is illegal, yet a taxpayer can not by suit vacate it merely on grounds of, such illegality so long as the contract is recognized by the constituted authorities of the city.</p> <p>4. Right of Taxpayer to Sue to Enjoin Tax. — A taxpayer suing to enjoin the collection of a tax must show the amount of the injury he seeks to be relieved against, or show a basis for its accurate computation.</p> <p>ON REHEARING.</p> <p>5. Same.—It is not sufficient to show that by reason of an illegal exemption from taxation the burden of taxes by plaintiff is increased; the extent of such increase must be stated directly or by facts showing the amount.</p>

<p>Pre-emption Claim May be Sold as Real Estate.—One who has pre-empted land may sell it prior to the completion of the occupancy for three years, and if the possession be kept up by the vendee or vendees the patent issues on the original right and the land does not become vacant. A vendee completing the unexpired possession and obtaining title from the State can not avoid the vendor’s lien upon the land on ground that it was public domain at the date of his purchase.</p>

<p>1. Power to Sell Land of Private Corporation. —A private corporation by resolution authorized certain named persons “to make contracts of sale of the land of the company,” the president of the company being in'same resolution authorized to execute title bonds to purchasers. Subsequently the power to sell was ^withdrawn from all but one of the persons named in the former resolution. He executed a deed to his Avife in name of the corporation, reciting the payment of the purchase money. The husband and ivife joined in a deed for the land, the wife duly acknowledging the same, to a purchaser the Arendor of the plaintiff. The plaintiff also claimed title under possession for over three years under said chain as color of title. Held:</p> <p>1. The agent to contract for sale did not have power to bind the corporation by deed for the land.</p> <p>2. A deed by husband to his Avife is to some extent to himself, as the revenues from the property are community, and as ail agent to sell can not sell to himself he could not sell to his wife.</p> <p>3. One dealing -with an agent, or claiming title through a deed made by an agent of a corporation, is chargeable rvith notice of the power or want of power of such agent to bind the corporation.</p> <p>4. The chain of title exhibited by the plaintiff showed that the agent for the corporation had deeded the land to his wife, and so of the vice in the deed.</p> <p>5. The agent having no power to sell, his recital that the purchase money was paid did not bind the company.</p> <p>6. It not appearing that anything was paid, the deed will not he enforced as a contract for sale of the land.</p> <p>2. Limitation of Three Tears—Color of Title.—Where one link in the chain of title under which possession had been held for over three years showed on its face that the agent making the deed had no power to do so and is void, such possession is not under color of title and does not mature the imperfect titlé into a good title.</p> <p>3. Practice on Appeal.—The plaintiff below in an action of trespass to try title not exhibiting title and appealing, defects in the defendant’s case will not be revised.</p>

<p>1. Implied Reservations in Deed for Land. — The conveyance of a building lot by a railway company with special covenants of title does not retain an implied reservation of the right to flood the lot in case of freshets; so held when the embankment causing the overflow was in existence prior to such conveyance.</p> <p>2. Same —■ Apparent Easement. — Even those courts which hold that a reservation may be implied beyond strict necessity restrict the rule to such easements as are “apparent and continuous.” An'apparent easement is one that is obvious.</p> <p>3. Same.—A purchaser from a railway company of a lot subject to overflow caused by an embankment kept up by the railway company and existing at the time of the sale might reasonably presume that the company had availed itself of competent engineering skill, and had so constructed its works as not to impede the natural flow of the water.</p>

<p>1. Payment on Notes Operates as a Credit Thereon.—A maker of two notes to the same payee paid him §500, taking receipt therefor, as follows: “July 24, 1886. Received of J. A. Stevens §500, to he placed as a credit on his notes.” Before this a payment had heen made on one of the notes in excess of its principal. In suit upon the other note brought by the payee, the maker having pleaded the payment as a credit on the note sued on, alleging that the other had heen discharged, it being usurious and void as to the interest, held:</p> <p>1. The payment of the money of itself operated as a credit as paid.</p> <p>2. The receipt showed that the money was paid upon both notes.</p> <p>3. That one was unsatisfied only as to the usurious interest did not prevent such application to both notes; as the maker could, make voluntary payment of usurious interest.</p> <p>4. The credits upon the notes made by the payment would be upon each in its proportion to the aggregate of the two.</p> <p>2. Counter-claim—Usurious Interest.—In a counter-claim for usurious interest paid, the recovery is that paid in excess of 12 per cent per annum. 78 Texas, 163.</p>

<p>Grant of Bight of Way — Construction of Contract. — A number of persons executed a contract with the agent of the appellant railway company in which they in consideration of certain obligations on part of the railway company obligated themselves for “San Felipe Irrigation, etc., Co.,” to convey to the railway company certain lands of the irrigation company. The contract contained the further clause: “This conveyance being in consideration of the condition previously expressed, and to include the right of way- one hundred feet in width through our tracts of land not previously conveyed.” Reid, that the parties signing the contract, upon the railway company complying with its obligations, were bound by it as to lands owned by them individually. The plaintiff having signed the contract was bound thereby, and could not recover the right of way occupied by the railway company, under the contract, through land owned by himself.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Pleading—Fact of Incorporation of Defendant Company Must be Alleged.—The almost universal practice in suits against a railway company is to allege the corporate capacity of the defendant. It would seem that if the provision of the statutes on the subject does not positively require such allegation it contemplates such mode of procedure.</p> <p>3. Charge—Servants of Warehousemen.—In suit for value of a trunk and its contents destroyed by fire while in a railway depot the testimony showed that employes of the railway company in charge of the depot were engaged in saving the property during the fire, in the discharge of their duties. It- was proper to refuse an .instruction that the railway company would not as warehouseman be responsible for-the negligence of its servants about matters not in line of their duty.</p> <p>3. Defective Charge Upon Negligence.—The court instructed the jury that if the railway company held the trunk, etc., sued for as warehouseman it would be responsible, and the jury should find for plaintiff if the testimony showed a want of ordinary care for the safety of the goods; also that the burden of proof was upon the plaintiff. Held, it was error to fail to charge on request that the use of ordinary care if found would require a verdict for the defendant.</p> <p>4. Passenger’s Baggage — Liability of Railway Company. — It is the duty of a railway company in regard to baggage of a passenger which has reached its destination, to have the baggage ready for delivery upon the platform at the usual place of delivery until the owner in the exercise of due diligence can call for and receive it; and it is the owner’s duty to call for and remove it within a reasonable time. If he does.not so call for and receive it, it is the company’s duty to put it into their baggage room and keep it for him, being liable only as warehouseman and for failure to use ordinary care. The reasonable time within which the owner must call for it is directly upon its arrival, making reasonable allowance for delay caused by the crowded state of the depot at the time; and the lateness of the hour makes no difference if the baggage be put upon the platform.</p> <p>5. Charge.—Bee instance of charge upon a state of facts not appearing in the record.</p> <p>6. Libel—Words not Actionable—Words Used by Attorney.-—In an action for destruction by fire of the trunk, etc., of plaintiff by the defendant railway company on whose train she had been a passenger, interrogatories were propounded to take her ' depositions. The attorney for the defendant propounded to her the following cross-interrogatory: “Are you acquainted with Mrs. -, who was formerly connected with the Sunny South? If so, where is she now, and do you not think she is a charming lady?” By amendment plaintiff alleged that these words were libelous. She asked damages actual and exemplary. On exceptions the matter was stricken from the petition. Held:</p> <p>1. The words were not actionable, not being libelous.</p> <p>2. If they were, the defendant company would not be liable for their use from the act of the attorney, as it was outside of his duty and not alleged to have been directed or approved by the defendant.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Charge — Construction. — In the charge to the jury was the following paragraph: “The plaintiff sues defendant company for alleged injuries inflicted upon him by the derailment of a train on which he was traveling as a passenger, occasioned by the negligence of defendant.” This will be construed so "that the word alleged qualifies the latter part of the sentence as well as that immediately following it.</p> <p>3. Charge Must Apply to the Testimony.—The record did not show the loss of time caused, nor its value. In such case it was error to submit loss of time as one of the elements of damages to be considered by the jury.</p>

<p>1. Powers of Attorney, Construction of. — Powers of attorney, unlike deeds and wills, are to he strictly construed; the authority delegated is limited to the meaning of the terms in which it is expressed.</p> <p>2. Same — General Power. —■ Where the power to perform specific acts is given and general words are also employed, such words are limited to the particular acts au•thorized.</p> <p>3. Same—Example.—A power of attorney conferred the power to execute conveyances only in connection with sales to be made, followed by a general power relating to the premises. Held, the power to execute deeds in discharge or adjustment of adverse claims preferred against the constituent was not conferred or implied. See facts.</p> <p>4. Power to Sell and Convey. — A power to sell and convey does not include the power to convey in discharge of a debt or claim.</p> <p>. 5. Execution by Firm of a Power.—A power to a partnership firm may be executed by one of the members of such 'firm.</p> <p>6. . Certificate of Acknowledgment of Deed. — Since the adoption of the Revised Statutes the omission in the certificate of acknowledgment to a deed is fatally defective when it fails to show that the grantors were either known to the officer or that they were proved to him by the oath of another to he the persons who executed the instrument.</p> <p>7. Latent Ambiguity.—In the chain of title exhibited by the plaintiff, in a deed from Cohb to Monks the description consists of a reference to other deeds and plats without any further, description of the land conveyed. The deed from Monks, also in the chain of title, for description has similar reference, and among the lands conveyed the only description which could relate to the land sued for (the 640 acres granted Martin) is “Blocks Nos. 1, 2, and 3, being the whole of the W. R. Martin survey,” and “being all the lands in said counties of Erath and Hood conveyed to Monks and Cobb except those lands heretofore conveyed by them, and which are of record in the county of Erath,” etc. Objection was made; no circumstances in aid of the description were furnished. Held, the description was insufficient to support a recovery of the Martin 640 acres survey, but that the defects are latent and can be aided by other testimony to the identity of the land sued for with that conveyed.</p>

<p>1. Certificate of Acknowledgment to Deed—Presumptions.—A notarial certificate began: “The State of Texas, county of Tarrant.—Before me, a justice of the peace and ex officio notary public, personally appeared,” etc., and closed, “Witness my hand and seal of office this the 18th day of September, 1880. [Seal] J. E. Murray, J. P. and ex. off. N. P.” Held, such certificate is not deficient in not showing for what county the officer acted and was authorized to act. It shows that the act was done in Tarrant County, and it will be presumed that he acted in that county and within his jurisdiction. It will also be presumed that the notarial seal showed the county as is required by law.</p> <p>2. Possession by Tenant and Payment of Taxes.—A defendant holding under a deed duly recorded allowed two sons to occupy 100 acres each. They did so, and paid the taxes. He occupied himself the balance of the land included within the lines set out in his deed. Other conditions for title under limitation of five years were established. Held, that the possession held and the payment of taxes by his sons under him inured to his benefit and perfected his title.</p> <p>3. Deed- Duly Recorded. —Where land is the separate property of the husband, or is community property and not homestead, a defective acknowledgment of the wife who unnecessarily joined with her husband in the deed will not vitiate the record of such deed to injury of the vendee holding possession under it.</p> <p>4. Equitable Defense Under Plea of Not Guilty. —In an action of trespass to try title the defendant may prove an equitable defense.</p> <p>5. Hearsay.—A surveyor was allowed to testify that one Lewis had in his possession a land certificate issued to the heirs of H. P. Chamberlain; that Lewis claimed to own it, and had employed witness to locate it, and had paid him therefor. Held, that the testimony to Lewis’ declarations was hearsay, and that the testimony given by the witness was not sufficient to raise the issue of ownership so as to require its submission to the jury.</p> <p>6. Possession and Claim to Land Certificate.—Tim certificate being the mere evidence of a right to appropriate land, the mere possession of it is not evidence of title to the land in the possessor.</p> <p>7. Practice — Papers Taken by Jury.—-A leaf from a family Bible detached therefrom and made part of the answers of a witness testifying by depositions on the trial was separated from the depositions and was taken by the jury in their retirement. This should not have been permitted.</p> <p>8. Judgment in Supreme Court. — Instance where the judgment below was affirmed as to part of the land in controversy and reversed as to another part.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

This was a suit instituted in the District Court of Smith County, Texas, March 30, 1889, by the Farmers’ Loan and Trust Company as, plaintiff against the.

<p>Opinion in preceding ease adopted as decisive of this appeal.</p>

<p>1. Homestead — Divorced Wife. — A divorced wife can not assert homestead rights in the homestead of her husband. She may, however, as guardian of their minor children, prosecute their rights in their father’s homestead.</p> <p>2. Minor Children—Homestead.—Minor children of a deceased father can not assert their homestead rights in his estate save through a duly appointed guardian.</p> <p>3. Divorced Husband Entitled to Homestead..— The homestead exemption of'200 acres rural home remains to the divorced husband, although by the divorce decree the custody of his children be given to the mother.</p> <p>4. Family—Children not Residing with Father. — It is not necessary under our present Constitution and laws that the children should reside with the father at the time of his death to entitle them to a right in his homestead. That the custody of the children had been awarded their mother in a decree for divorce can make no difference. Nor is such right affected by their residence with the mother having a homestead in her own right.</p> <p>5. Minor Children-—Homestead Rights. —The Constitution is imperative in its command that it (the homestead) shall not be taken from the minor children so long as their guardian may be permitted, under the order of the proper court having jurisdiction, to use and occupy the same. ’ ’ The guardian will be required to report annually to the County Court the condition of the estate of the minors, showing their income and the cost of support and education; and whenever it may appear that the use and occupation of the homestead is no longer necessary an order will be entered requiring it to be surrendered to the owners of the fee. Const., art. 16, sec. 50.</p> <p>6. Same—Will of Father can not Affect Homestead Rights.—A will must be subject to the limitations prescribed by law. The law having provided that minor children have rights in the homestead of their father, such right can not be destroyed by the 'will of the father providing otherwise.</p> <p>7. Same.—A will can not affect the rights of the surviving husband or wife or the minor children in property exempt from execution any more than it can affect the rights of creditors in property not so exempted.</p> <p>8. Homestead an Entirety.—We know of no law which would authorize the setting apart of a portion of the rural homestead. The homestead is treated as an entirety, and-is not subject to partition so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having jurisdiction, to use and occupy it.</p>

<p>2. Findings of Fact by the Court.—In the absence of a statement of facts the presumption must be indulged in that the court heard evidence upon the issues found, and that his findings are correct results warranted by the evidence. The finding that a husband and wife died at the same instant is not negatived by a further finding that no one saw or was present at their death:</p> <p>The opinion states the case.</p>

This action was brought October 16, 1889, in the District Court of Parker County, by the county attorney of said county, in the name of the State of Texas, for the use and benefit of said county, against appellees Eggerman & Co., dealers in intoxicating liquors in quantities less than a quart, and E. W. Stoutsenberger and J. M. Haman, sureties on the bond of said Eggerman & Co., as such liquor dealers, to recover the statutory penalty of $500 for breach of said bond.

<p>The opinion states the case.</p>

<p>The opinion gives the facts.</p>

<p>1. Abandonment of Homestead by Widow.—See facts held sufficient to sustain a verdict of abandonment by the widow of the homestead which had been set apart to her in administration of her husband’s estate.</p> <p>2. Homestead—Decree Explained by Record.—The wife of Edwards died devising her share in community property to her children. The husband married again and resided upon the old homestead. He died intestate and the homestead was set apart, by the Probate Court to his widow. The children of the first marriage brought suit against her, claiming under their mother, for partition of the homestead. In the suit partition was made, the plaintiffs recovering one-half. In the decree confirming the partition it was declared “that the said Kate Knight Edwards (widow) do have the sole and exclusive possession thereof (of that allotted her) for the purposes of a homestead for and during her natural life.” The widow married again and went with her husband to New Orleans where he was engaged in business. The heirs of the husband brought suit for five-sixths of the homestead, recognizing only the life-estate of the widow in the separate property of her husband. She pleaded the decree in the former suit in bar of the action. Held, that the former decree as explained by the record was merely intended to set apart to her her husband’s interest in the property, with such rights in it as the Constitution conferred upon her as surviving wife, by reason of its having been the homestead of the family at the death of her husband.</p>

<p>Error from Shelby. Tried below before Hon. James I. Perkins.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>1. Construction of "Statute—Road Law. — That it was made the duty of the County Commissioners Courts within ninety days after the x>assage of the Act of February 7, 1884 (Sayles’ Civ. Stats., art. 4360a) to appoint juries of view to lay out certain public roads, is not a limitation upon the power of the courts to open such roads. They can execute the power after that date.</p> <p>2. Opening Public Roads — Notice.—Notice to a corporation owning lands through which it is proposed to lay out a public road may be served upon its agent, but a notice to such agent and served upon him does not bind the company.</p> <p>3. Same.—Service upon the land owner of notice is necessary to confer jurisdiction upon the courts to open roads through his lands.</p> <p>4. Injunction to Restrain, etc. — Injunction may issue to restrain the opening of a public road under an order of the county commissioners made without notice to the landowners, at their instance.</p> <p>5. Same — Practice. — Pending such injunction the county commissioners have power under new proceedings regularly taken to open up such road. This would be a defense to the injunction, but costs should be allowed plaintiff up to the date of the regular condemnation.</p>

<p>The opinion states the case.</p>

<p>1. Venue—Trespass.—An employe was injured by the want of perfect machinery which he was using in his work, or by the want of care of one in control of the work. Held, such injury is not the effect of a trespass as the word is used in section 8, article 1198, Revised Statutes, and the parties liable from such negligence could plead their privilege to be sued in the county of their residence.</p> <p>3. Pleading.—Where the pleader states the facts upon which he claims relief the effect of such facts will not be changed by allegations as to their legal effect.</p> <p>3. Case Adhered to.-—Ricker, Lee & Co. v. Shoemaker, ante, page 22, adhered to.</p>

Appellees Charles Hopf and his wife Kate Hopf brought this suit in the District Court of El Paso County October 4, 1887, and on January 9,1889, filed their second amended petition, alleging in substance that they .were husband and wife, and that the appellants (defendants below) George W. Baylor and his wife Sallie Baylor were husband and wife; that Kate Hopf and Sallie G. Baylor were sisters, their maiden names being Sydnor; that about September 7, 1882, said Kate, then…

This suit was brought by heirs of a married woman to recover a tract of land she had conveyed while a minor to a firm of attorneys for professional services. They had represented her at instance of her stepfather in a litigation involving 750 acres of land, and were successful. She made them a deed for 100 acres of the land. She subsequently died, leaving surviving her mother, a brother and sister of the half-blood, and her husband.

<p>Description in Trespass to Try Title.—The petition in trespass to try title described the land sued for as “a part of the John Gillespie survey, situated in the city of Greenville, Hunt County, Texas, beginning at the southeast corner of the old town donation; thence east with Mercer’s Colony line 173| varas; thence north 325J varas; thence west 173J varas to old town donation; thence south 325£ varas to the beginning; except that part previously conveyed to Hagood, Dagley, and Ende by J. W. Hawkins.” A motion in arrest of judgment for the plaintiff urged for the want of sufficient description was granted. Held, it is not apparent that the land in controversy can not be accurately pointed out by means of the description and references in the petition, and it was error to sustain the motion in arrest of judgment.</p>

<p>1. Mistake in Certificate of Acknowledgment to Deed.—Where it is apparent from the certificate as a whole that the officer intended to-write the proper word and that its omission or the failure to so use it was a clerical error, the certificate is not vitiated by such error. See example.</p> <p>2. Same —Privy Acknowledgment. —So where it is evident that the statute prescribing the privy examination, etc., in the acknowledgment of a deed by a married woman had been complied with, the erroneous using the word with instead of without in such certificate is immaterial.</p> <p>3. Cases Adhered to. — Belcher v. Weaver, 46 Texas, 294; Talbert v. Dull, 70 Texas, 676; and Butler v. Brown, 77 Texas, 343, adhered to.</p> <p>4. Innocent Purchaser—Notice.-—A bona fide purchaser from a grantee in the patent for land is not affected by matters anterior to the issuance of the patent, although the certificate supporting the patent should develop other equities.</p> <p>5. Innocent Purchaser Paying only Part of Purchase Money. — The pro tanto protection of an innocent purchaser who had paid part only of the purchase money is a well recognized principle.</p> <p>6. Same—Mode of Such Protection.—The equitable relief should be determined by the entire facts. A given rule can not be applied to all cases. See discussion and illustrations.</p>

<p>Error from Edwards. Tried below before Hon. Winchester Kelso.</p> <p>The opinion states the case.</p>

<p>1. Judgment for Costs Against Unknown Owners. — In a suit for specific performance and for partition of land against unknown owners alleged to be nonresidents, judgment for partition was valid, but judgment for costs against the unknown owners was without jurisdiction and was void.</p> <p>2. Same— Execution Sale. — The execution under such judgment for costs was void, and a purchaser under it took nothing.</p> <p>3. Appearance—Statutes Construed.—Suit filed November 17,1846. Citation against nonresident unknown owners by publication under article 677, Hartley’s Digest. Judgment November 16, 1847. In the record was an answer signed by attorneys, and referred to in the judgment. Held, the presumption is that the answer was filed by attorneys who were appointed by the court. Such answer did not bind the defendants.</p>

<p>1. Error Bond.—Judgment for costs against plaintiff and his surety on cost bond in favor of one of two defendants. The defendant prosecuted error to Supreme Court. Its bond was made payable to the plaintiff and not including in its obligees the surety in the cost bond against whom the judgment had been rendered. Held, upon motion the case was properly dismissed on account of defective error bond.</p> <p>2. Laches—Waiver.—At the same term of such dismissal a motion was urged to reinstate the case, both defendants consenting but the plaintiff below resisting; the court reinstated the case. These proceedings were had at Austin term, 1889. The case was continued at that time, and again it was continued at the term of 1890. On April 8, 1891, the case was referred to the Commission of Appeals. April 15 the plaintiff renewed his motion to dismiss upon the same grounds as in his original motion. Held, that it was his duty to present the matter to the next ensuing term; the delay is ground for refusal.</p> <p>3. Same — Jurisdiction. — After such delay the defect in the error hond did not affect the jurisdiction over the case on error.</p> <p>4. Fact Case—Contract—Waiver.—Suit by a subcontractor for difference in cost of excavations made by him between solid rode and loose rode, against the contractors. The classification of the work was to be determined by the engineer of the employer, a railway company. The questions—of classification as hard rock by the engineer, of fact whether hard or loose rock, and of acceptance of payment and consequent waiver— were made in the testimony. There was sufficient evidence to support the classification insisted upon by the plaintiff, and a judgment in his favor for the sum sued for.</p>

<p>The opinion states the case.</p>

<p>1. Presumption of Survivorship.—The common law does not under any circumstances, even in the case where two or more perish hy the same calamity, indulge in presumptions of survivorship resting upon considerations of age or sex. It was error for the trial court upon testim&ny that the mother and daughter died the same year to hold that the mother died first.</p> <p>2. Constructive Notice.—A decree of partition in an estate in administration in Jefferson County was made August, 1867, upon application giving the names of the widow and all the children of the intestate. The decree vested the title of the land in controversy in the heirs, not naming them. The decree when recorded in the proper county was notice of the rights of the heirs of. the intestate, although not named. It is sufficient to put a purchaser upon inquiry.</p> <p>3. Title and Possession in-Trespass to Try Title—Remainder.—In an action to try title the plaintiff exhibited title to one-fourth of the land sued for, but incumbered with a life-estate in his father to one-third interest. Held, that for the part covered by the life-interest the plaintiff could not recover.</p>

<p>The opinion states the case.</p>