Volume 85 — Texas Reports

<p>1. Appeal Bond in Justice Court—Misdescription of Judgment. Suit upon note in Justice Court for $95 and stipulated attorney fees. Judgment for amount claimed. The defendant appealed, and gave an appeal bond in all respects describing the judgment save in the amount, which was recited as “$95 with interest and costs.” It was also not in double the amount of the judgment. On appeal, on motion to dismiss in the District Court, held, that the transcript from the Justice Court might be looked to in aid of the description of the amount. Looking to the transcript, it appears that the only misdescription is that the bond recites “ interest and costs,” instead of interest and attorney fees.” Such error is immaterial.</p> <p>2. Appeal Bond more Onerous than Required. —An appeal bond from judgment in Justice Court in substantial compliance with the statute, and on which judgment can be entered, is not invalid because more onerous conditions are added. Such conditions will be treated as surplusage.</p> <p>3. New Appeal Bond.—When the appeal bond in Justice Court is defective only in being signed by one surety, or in the amount, a new bond may be filed in the District or County Court, and be approved by the clerk.</p> <p>4. Failure to File Conclusions of Fact, etc.—The failure of the trial judge to file conclusions of fact and of law when requested, will not be eonsid-. ered on appeal without a bill of exceptions taken before the adjournment of the court.</p>

<p>1. Sale of Cattle in the Range—Parol Agreement to Sell.—While a bill of sale (to cattle running on the range) and its record are prerequisites to the acquisition of title, and without such registration the transfer does not take effect, it follows that a parol transfer of cattle in the range is a nullity; but it does not follow that a parol agreement to transfer in the manner prescribed by the statute is void, if founded upon a valid consideration and unmixed with fraud.</p> <p>2. Same.—An agreement in parol to transfer stock cattle on the range, if founded upon valuable consideration, may be enforced.</p> <p>3. Fraud—Fraudulent Contract.—One of two partners in dealing with the partnership property obtained the consent of the other to surrender the stock, in ignorance of a private agreement by which the acting partner was to share with the vendee in the stock conveyed. Such contract was fraudulent, and can not be enforced by the acting partner suing for such share. The innocent partner, the victim of the fraud, however, could enforce the contract to the extent of his interest.</p>

May 25, 1889, appellants brought this suit against appellees, Jose Gomez, T. Hobart, and E. A. Giraud, to recover the lands described in the petition. The defendants answered by plea of not guilty, and general and special demurrers. The court sustained the general and special demurrers, and the appellants declining to amend, judgment was rendered dismissing the suit.

<p>1. Master and Servant — Defective Tools —Care by Employe.— Burnett, a foreman of a crew engaged in building an iron bridge, in employ of appellant, while using a steel hammer had an eye put out by a splinter from the hammer. He sued for damages for the injury. There was no evidence that the brittleness of the metal of the hammer rendered it defective, or unsuitable for the character of work in which Burnett was using it when injured. The undisputed testimony was that all steel hammers are brittle, if made hard enough to work with. The hammer used was too small, and this was apparent. There was no issue whether Burnett knew, or could have known by using ordinary care, of the defects, from brittleness or its size. Held, a charge submitting these defects to the jury was to try the case upon a wrong theory, and was misleading.</p> <p>2. Care by Employe to Avoid Injury. — It being manifest that the hammer used by Burnett when injured was not adapted or suitable for the work in which he was engaged, the court should have charged the jury that if the plaintiff knew, or by ordinary care could have known, that the hammer was defective, he having selected it for his own use, he could not recover.</p> <p>3. Proper Care by Employe.—There being evidence that by an unskillful blow by the plaintiff with the hammer a splinter from it was detached and struck his eye, there should have been given in charge the effect of contributory negligence on his part.</p> <p>4. Ordinary Risks of Employe.—All of the witnesses testifying that the chipping of the scales or splinters was one of the ordinary risks incident to any work in which steel hammers are used, the court when requested should have charged the jury that the plaintiff, in entering the employment of the bridge company, assumed the usual and ordinary risks incident to the service for which he was employed.</p>

<p>1. Land Owned by Partnership.—Whether land belonging to a firm is to be considered as part of the partnership stock will depend on the intention of the partners, to be ascertained by their acts or agreements, either express or implied. It may be made partnership stock by the parol agreement of the partners.</p> <p>2. Same—Partnership Effects.—When real estate is a part of the partnership effects it is to be treated in equity as a part of the partnership funds. And whatever may be the form of the conveyance to the firm, it will be held subject to all the equitable rights and liens of the partners which would apply to it if it were personal estate.</p> <p>3. Same — Partition of Assets. — The trial court found that the firm assets had been about equally divided between two partners upon a settlement between them, one taking his share in money, the other taking property, of which the land in controversy was part. Held, that the land belonged to the party to whom it was allotted in the parol division of assets. He also assumed the payment of firm debts, and paid them, and rendered the land for taxes thereafter, and no adverse claim was asserted for over twenty years.</p> <p>4. Partition of Land by Executed Parol Contract.—Upon the theory that the two partners owned the land as tenants in common, a parol partition would have been recognized. Such partition is not within the statute of frauds.</p> <p>5. Purchasers with Notice, etc.—It appearing by the evidence that the defendant’s grantors, who bought of the partner, had knowledge of the claim by the plaintiff of the entire tract from the partner to whom it had been allotted in the partition, and it not appearing that defendant had paid the purchase money, he can not be considered a bona fide purchaser.</p>

<p>1. Evidence—Harmless Error.—Suit for damages for the conversion of cattle in a given brand. A bill of sale was offered, and over objection admitted, conveying a number of cattle to plaintiff with the named brand and also another brand upon them. It appeared that the cattle seized were only in- the given brand. Held, that the error in admitting the bill of sale was harmless.</p> <p>2. Evidence—Hearsay.—The plaintiff claimed title to the cattle for seizure of which damages were sought under Q. A. and wife II. Anderson. It was incompetent to admit declarations of H. Anderson that she did not claim the-cattle, and that they belonged to plaintiff; the declarations were not made in presence of any of the parties in interest. There was evidence that tiie cattle were claimed by H". Anderson and her husband subsequent to the date of the alleged sale, and the testimony was conflicting. Held, the testimony was hearsay, and in the conflict of testimony it can not be held to have been immaterial, and its admission is ground for reversal.</p> <p>3. Exemplary Damages.—A deputy United States marshal, who also was agent for a land company, levied upon the cattle under an execution for costs against the parties under whom plaintiff claimed. There was some evidence tending to support a claim for exemplary damages against the deputy. There was no evidence that the land company either directed the levy or subsequently approved it. Held, that a judgment for exemplary damages against the land company was not supported by the evidence, and was error.</p> <p>4. Unrecorded Mark and Brand.—Under the statutes of this State (Revised Statutes, articles 4556-4561), which regulate marks and brands and their record, a parol sale of a recorded mark and brand must be held to be just as ineffectual to pass the title to a mark and brand of cattle, as would be a verbal transfer of real estate, which is likewise governed exclusively by statutory provisions.</p> <p>5. Sale of Cattle.—Without selling the mark and brand, it is competent, however, to prove a sale and actual delivery of branded cattle not including the whole of the stock so branded, but such sale passes no title to the brand as evidence of title.</p> <p>6. Purchase of Cattle without Purchasing Brand.—It is competent to prove the equitable or real ownership of cattle in a brand recorded in another's name. The increase of such would follow the stock purchased, and a levy and sale of such stock, as the property of the owner of the brand, would pass no title against the real owner. There is no statute making them liable for debts of the owner of the brand.</p>

<p>Error from Llano. Tried below before Hon. A. W. Moursund.</p>

<p>1. Appeal Bond—Supersedeas.—The appeal bond, on appeal to the Supreme Court, must be sufficient to support an action by the appellee; it must identify the judgment, be sufficient in amount, and conditioned as required by law. Unless such bond is filed an appeal does not operate as a supersedeas. See misdescription in date of judgment and in amount such as to render it void.</p> <p>2. Community Property—Trust.—See testimony showing that the consideration paid for the property in litigation, and which was deeded to the wife of Martin White, was community property. Markward carried out a compromise made by White, advanced money, and took deed in his own name, and subsequently sold at a profit, and such profit was represented by the land in litigation, deeded by Markward to Mrs. White. Such trust was proved by parol testimony in conflict with the recitals in deed to Markward.</p> <p>3. Want of Diligence.—Motion for new trial in which it appears that the testimony for want of which the motion is made could have been produced upon the trial, has no merit.</p> <p>4. Inadequacy in Price.—Sheriff sale of property claimed by wife of defendant in execution as her separate property. At the sale the husband disclaimed ownership, and her own claim was asserted. Held, that the wife could not complain of inadequacy of price.</p>

<p>1. Sale of Defective Title — Partial Failure.—Where the contract of sale of land is executory, the vendee may resist the payment of the purchase money on proof of the fact that there was a failure of title, unless the vendor establishes the fact that the vendee knew of the defect and took that risk. In case of an executed contract, where the failure of title is shown (that is, proof of a valid outstanding title), it devolves on the vendee to prove that he had no knowledge of that defect when he bought.</p> <p>2. Bona Fide Holder of Vendor’s Lien Note.—A holder of a vendor’s lien note taken for value before maturity can subject the land to the debt, even where there is failure in part of title, unless he bad notice of such defect at time of obtaining such note.</p> <p>3. Tender — Vendor’s Lien. — The maker of a vendor’s lien note, before suit, tendered the amount he claimed to be due, and pleading the tender, deposited the money in court, where it remained. Held, that upon plaintiff recovering only the sum tendered it was no error for the court to fail or refuse to enter a decree of foreclosure. The debt was paid, and no lien existed.</p> <p>4. Knowledge of Facts as Notice.—The purchaser of a vendor’s lien note, before his purchase, was informed of the defect in the title to the land, but was informed that the vendee knew of it when he executed the note. Held, that having taken the note upon such information, it devolved upon him to establish it as a fact.</p>

<p>1. Charge —Duty of Owner of Steam Saw Mill to Employes.— See charge approved as correctly stating the law in an action by an employe-against the owners of a steam saw mill for damages for personal injuries inflicted upon plaintiff from defective machinery.</p> <p>2. Accident.—An accident that can not be reasonably anticipated by either of the parties concerned in it, and that occurs without fault of the person charged with it, is not actionable. The mere fact that an accident happens or an injury occurs is not of itself proof of negligence.</p> <p>3. Ordinary Care by Mill Owner.—It is not the law that there would be no liability if the very occurrence itself complained of could not have been foreseen by the use of ordinary care; but if no danger could be supposed to exist from the defects in the machinery under any circumstances after the exercise-of such care, no liability would exist.</p> <p>4. Permitting Charge Refused to be Taken by the Jury.—The défendant asked the following charge: “If the braces in question (which proved-defective) were fastened with 20-penny nails or spikes, and the fastenings were-reasonably sufficient to guard against any accident therefrom which was probable and could have been reasonably foreseen, then you will find for the defendant.” The instruction was refused, but it was written upon the same paper upon which was written another that was given. The trial judge in handing the paper to the jury cautioned them to disregard the refused instruction. Objection was made. Held, that while the instruction was properly refused, yet in going to the jury, its rejection emphasized by the remark of the judge, it may have had the effect of withdrawing from their consideration the testimony noted therein, and the act was reversible error.</p> <p>5. Employe.—There being no conflict in the testimony that the plaintiff was an employe of the defendant, and was present in the course of his business when injured, it was not error to refuse instructions submitting in issue whether he was injured when in discharge of the business in which he was employed. See facts.</p> <p>6. Repairs of Defective Machinery. — It is not enough that suitable material for repairs was furnished, and that skillful workmen did the work; it must have been done in a skillful manner in the exercise of due care.</p> <p>7. Duty of Mill Owner—Due Care.—The obligation of a mill owner to the employes is to furnish and use reasonably safe machinery and appliances in operating such mill.</p>

This is an appeal from a judgment for §800 damages for personal injuries suffered by plaintiff in attempting to drive a wagon loaded with wood, upon which he was seated, through an opening in trestle work in the road of the defendant. Complaint was that the trestle was an imperfect highway, negligently constructed as a crossing of the track by the defendant.

<p>1. Wrongful Seizure Under Writ of Sequestration and of Attachment.—Cattle mortaged to secure a creditor were seized under a writ of sequestration and a writ of attachment, both sued out by the creditor. There was but one act of seizure under both writs. Subsequently the cattle were turned over to the trustee and sold for benefit of the plaintiff creditor. The defendant reconvened, seeking damages for the wrongful seizure under both writs: Held, it can not be affirmed, that because the property of the defendant was rightfully subject to seizure by a writ of sequestration, and was so seized, no damages could be caused by wrongfully levying upon it at the same time a writ of attachment and taking possession of and holding it at the same time wrongfully as well as rightfully.</p> <p>2. Same — Liability for Wrongful Seizure. — The court correctly charged, that before recovery could be had it must be shown that one of the writs was wrongfully sued out. If one of the writs was rightfully sued out and the other not, then the damages for the unlawful seizure only should be recovered, if distinguishable from those arising from the rightful seizure.</p> <p>3. Same.—As there was but one seizure, and it is not pretended that the damage caused was distinguishable so as to be capable of being parcelled out between the two writs, the defendant (in reconvention) must be allowed to recover the entire damages, or must be denied any; and as the confusion resulted from the plaintiff’s unlawful acts, the plaintiff rather than the defendant should suffer the consequent loss.</p> <p>4. Unlawful Levy of Attachment and Return of the Property.— We do not think that the plaintiff could relieve itself from damages resulting from a wrongful seizure under either of the writs by subsequently turning the property over to the trustee and his sale under the power, without the consent of the defendant. The court, therefore, properly instructed the jury, that if the cattle seized had been turned over to the trustee, and without consent of defendant, and sold by the trustee, they should find for the defendant (in reconvention) the difference, if any, between the amount realized by the trust sale and the market value of the cattle.</p> <p>5. Acts Not an Estoppel.—That the defendant aided the trustee making the sale, endeavoring to realize as much as possible upon it, did not estop him. from claiming redress for the unlawful seizure before they were turned over to the trustee. Nor would defendant’s having caused the cattle to be seized for payment of his taxes further affect his rights than to charge him with the taxes assumed and paid out of the trustee's sale of the cattle.</p> <p>6. Practice—Parties.—Suit on and to foreclose chattel mortgage against a principal and surety on note declared on. The surety was not served with citation, nor named in the judgment. The appeal bond by the plaintiff did not name him: Held, that it will be presumed that suit was dismissed as to the surety.</p>

<p>1. Evidence—Acts and Declarations of Agent.—See facts showing the connection of an agent with the business of his principal, touching the stock of merchandise seized while in possession of such agent, such as to render the acts and declarations of the agent at and before the levy admissible against his principal in a trial of the right of property in the stock.</p> <p>2. Evidence — Kind of Stock.—In trial of right of property in a stock of merchandise seized at Paris, Texas, the claimant, in whose possession it was when seized, claiming to have bought the stock at Texarkana for the purpose of setting up a retail store, it was competent for an experienced merchant, who had examined the stock, to. testify to such examination, and to state that it was in certain respects named by him not of the amount and character usually carried by a retail dealer at the place.</p> <p>3. Hotel Register.—The claimant had testified to bis being at Paris ten-times during July and August, 1887. There was a question raised as to his-identity. He never had charge of the business, nor did he appear on the trial. Held, it was competent to exhibit in evidence the hotel register of the house at which his depositions stated he had stopped when at Paris. The registry did not show the name of the claimant.</p> <p>4. Practice in Trial of Right of Property.—No question having been made in the pleadings or otherwise as to the regularity of the writs of attachment under which the seizure was made, it was not necessary to submit to the jury the existence of the writ, or debt supporting it.</p> <p>5. Measure of Damages.—The measure of damages for goods seized and claimed adversely to the defendant in the writ under which seizure is made, is the value at the seizure, and 8 per cent interest from date of seizure.</p>

This was an action by appellee in the District Court of Martin County, against Karr, the sheriff of said county, the First National Bank of Colorado, its president Scott, and its agent Smoot, for damages for the unlawful seizure and conversion of 350 head of cattle in Yoakum County, of which cattle plaintiff alleged “ he was the legal and equitable owner,” and of which he was in the actual and exclusive possession.

<p>1. Pleadings in Justice Courts.—Where an account is filed and an entry of the nature of the claim is made upon the docket of the justice, which indicates that the proper issues were made on the part of the plaintiff, it will not he presumed that sufficient oral pleadings were not made. Technical rules of pleading do not apply to the manner of forming issues in the Justice Court in ordinary suits. (See account and docket entry held sufficient.)</p> <p>2. Care Against Injury.—The doctrine is well established, that where one is injured from another's breach of contract or tort, he is bound to use reasonable exertions—ordinary care—to render the injury as light as possible.</p> <p>3. Same—Case in Judgment.—Action by land owner for damages to his land and crop thereon from overflow of water, caused by the embankment erected and kept up by the defendant. It was shown in defense that at an outlay of $35, which sum plaintiff was able to expend, the land could have been drained from the overflow, and the injury avoided. Held, such facts were not a perfect defense, unless it had been shown further that he (plaintiff) had the right to make such drain without injury to neighboring lands.</p>

<p>Judgment in Justice Court Held Sufficient.—-Attachment suit against Hensley upon a verified account for a balance of $45. The property seized was replevied, August Vogt and another being sureties on the bond. The docket entries were as follows (after the names of the parties):</p> <p>“ Suit upon account for $45, of date of September —, 1886. Interest. Filed 10th day of November, 1887. Citation issued the 10th day of November, 1887, returnable to December Term, A. D. 1887, and placed in the hands of Z. M. Bailey. Mailed to sheriff of-. Returned executed 12th day of November, 1887.</p> <p>“This cause coming to be heard, this the 8th day of December, 1887, and for trial, the plaintiff appearing, and defendant being three times severally called and failing to appear; therefore the court adjudges, decrees, and orders,that judgment be rendered in favor of J. W. Dorsey, and against defendant Daniel Hensley as principal, and August Vogt and F. J. Koeniger as sureties on replevy bond, for $45 and all costs expended in cause, for which let execution issue.</p> <p>“ Given under my hand, this the Rth day of December, 1887.</p> <p>[Signed] “J. A. Stewart, J. P.”</p> <p>Execution issued against the parties named in the judgment, and Vogt sought by injunction to restrain the collection. Vogt and Koeniger were sureties in a replevy bond for Hensley. The attachment was not foreclosed. Held:</p> <p>1. That said entry sufficiently showed a judgment against Hensley, the principal.</p> <p>2. It was harmless error that the justice of the peace was allowed to testify that he intended to render judgment against Hensley.</p> <p>3. It was proper to render judgment against the sureties in the replevy bond.</p> <p>4. The docket entry showed service had been had of citation upon Hensley.</p>

<p>1. Mortgage — Instrument Sustained as a Mortgage.—The instrument in controversy recites that Kempinski is indebted to certain persons, firms, -and corporations, twenty-eight in number, in stated amounts, and as K. is “ anxious to secure to the full extent of his means the payment of the aforesaid indebtedness,” he constitutes Laird a trustee, to whom he sells, transfers, and delivers all of his stock of goods in a certain store house then occupied by the grantor—an invoice of which is to be attached, etc.—also his notes and accounts; which property is declared to bo all owned by the grantor subject to forced sale. It is then added: “ This transfer and conveyance is intended as a mortgage, to secure to the full extent of my effects the payment of the aforesaid claims.” The trustee was authorized to take possession of the goods, • sell same for cash, by wholesale or retail, at private or public sale, as he may deem best, and the proceeds of sales and collections he is directed to apply to payment of costs and expenses of executing the trust, and reasonable commissions to the trustee, and then to the payment of certain named preferred creditors, in certain order, “ and the remainder of said above enumerated claims shall be paid without distinction or preference.” The trustee took possession, and while executing the trust certain creditors brought suit to declare the instrument a statutory assignment, etc. The trial court so adjudged. On appeal, held, that the conveyance was a mortgage, and it was sustained as such.</p> <p>2. Mortgage as Security.—A mortgage is a security, and whether it so ■declares or not, the equity of redemption remains in the mortgagor.</p> <p>3. Cases Discussed.—Preston v. Carter Bros., 80 Texas, 388, and Johnson v. Bobinson, 68 Texas, 400, discussed.</p>

<p>1. Duty Owing by Railway Company to Passenger.—A passenger was carried beyond her point of destination. The train was stopped, and the conductor proposed backing to the platform, but the passenger declined, and stated that she preferred getting off at the place the train then was. She was assisted from the train, and while alighting was injured. In suit for damages, held, that by so doing she changed the character and extent of the obligation upon the carrier. There being evidence to such change, it was proper to instruct the jury to find for the defendant, “ if you find from the evidence that after having •carried plaintiff past the platform, the conductor stopped the train and offered to carry her back to the platform, and that plaintiff thereupon requested to be allowed to get off where she did get off, and that the conductor used ordinary care in assisting her to get off.”</p> <p>2. Charge.—Charge commended, in charging upon the effect of the testimony introduced by plaintiff, if believed, and the converse of the proposition supported by testimony in behalf of the defendant.</p> <p>3. Abstract Principles in Charge.—It was complained that the court instructed the jury: “ It is the duty of railway companies in transporting their passengers to use,a high degree of care to protect them from being injured, but are not required to insure their safety, and it is the duty of a passenger himself to use reasonable care to prevent his own injury.” See facts where such charge was pertinent, or at most harmless.</p> <p>4. Motion for New Trial — Newly Discovered Testimony. — See motion for new trial on grounds of alleged newly discovered testimony, which on its face is held to show that the testimony was known to plaintiff before the trial, and no reason shown for not producing it.</p> <p>5. Same—Diligence.—Motion for new trial was overruled, and notice of appeal given November 13. On November 15 an amended motion for new trial was filed, based upon the contents of depositions filed by the defendant on November 9. Held, that the action of the trial court in striking out said amended motion was not error. But the action on the merits does not require that it be revised.</p>

<p>Business Homestead —Abandonment.—B. B. Hill had a blacksmith shop upon a lot detached from his residence. The shop was burned down. The husband then became a constable and deputy sheriff. A storehouse was erected upon the lot and leased for a year. One month of the time had passed when he died. An application of the widow to have the lot set apart to her and the children of the deceased as exempt property by reason of it being the business homestead, was refused. On appeal, held, it appearing that the lot was not used, nor was it adapted or reasonably necessary for the business pursued by the husband, it could not constitute a business homestead; as such it had been abandoned. See facts.</p>

<p>1. Reregistration—Lost Records.—Where the record of a deed has been destroyed, if the original be not rerecorded within the time prescribed by the statute (four years), a subsequent purchaser for value without notice will be protected; and he will not be charged with constructive notice by reason of the fact that the deed was once recorded, the record of which has been destroyed.</p> <p>2. Title of Act Requiring Reregistration. — The act for supplying lost and destroyed records necessarily includes within its terms as the same subject the reregistration of such records when supplied, and the effect they shall have when so recorded.</p> <p>3. Presumption of Existence of Original Deed.—Under the “Act to amend an act entitled an act to provide for the supplying of lost records in the several counties of this State, approved April 14,1874,” in so far as it requires that the original deed be recorded within four years, the existence of the original will be presumed in absence of evidence showing its loss or destruction.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Limitation may run Before Patent for the Land. —Land was bought from the State in 1877. It was patented in 1889. In such case, as the purchaser could maintain trespass to try title for the land upon his contract with the State, the statute of limitations would run against such purchaser in favor of one in adverse possession before the patent issued for the land.</p> <p>2. Payment of Taxes Under Defense of B'ive Years Limitation. While payment of taxes may be proven by direct or circumstantial evidence, and while parol testimony to such payment is competent, still where the land is incorrectly listed upon the tax rolls the parol testimony to payment will be evidence of payment upon the lands assessed. The tax payer can not apply such payment to lands not listed, although the land was listed erroneously by mistake. See facts,</p> <p>3. Costs in Trespass to Try Title.—In an action of trespass to try title,, where the defendant litigates the title to the whole or to part of the land, in the event the plaintiff recovers any part of the land so litigated, he is entitled to recover costs.</p>

<p>1. Notice to Agent as Affecting His Principal.—As a general rule, notice to the agent is notice to the principal. This, however, does not apply to a case where an agent authorized to purchase a stock of cattle began negotiations which were broken off, and the principal subsequently, and negotiating in person, made the purchase. In the negotiations between the agent and the seller the latter made material statements touching the subject of the sale. In such case the principal was not charged with notice of the statements made to the-agent.</p> <p>2. Irrelevant Testimony to Value.—Suit upon note given in consideration of purchase of an interest in a stock of cattle. Defense, fraudulent, statements by seller as to number in said stock. It was irrelevant to admit testimony to a sale of a like interest in same stock six months later.</p> <p>3. Fraudulent Representations.—While it would be an answer to a defense of fraudulent representations as to the number of cattle sold to the defendant, whose note for such purchase is sued upon, that the plaintiff in negotiating the sale with an agent had refused to guarantee the estimated number, and such refusal had been communicated to the purchaser, still if subsequently the plaintiff' did guarantee the number and the purchase was made upon the strength of such guarantee, then such facts would be a defense.</p>

<p>1. Pleadings and Evidence.—Plaintiff sued for an undivided interest in two tracts of land, and for other relief against the owners of the other interest. As an exhibit to the petition was attached a copy of a will under which the defendants claimed. The defendants pleaded not guilty. Without objection, the will was admitted in evidence, with testimony tending to show that the devisee, widow of the testator, elected to take under the will. Thewill disposed of cornmunity property. The will and supporting evidence were relied upon to defeat the claim of the plaintiff. On appeal the question of the sufficiency of the answer to admit the will, etc., in evidence was raised. Held, no ground for reversal was shown.</p> <p>2. Construction of Will as Affecting Community Property.— While the husband can not devise his wife's share in the community property, and his will should ordinarily be held to affect only his interest in the community, yet where by its terms the will disposes of particular tracts of land of the community, the widow will be put upon her election whether she will take under or against the will. If she elect to take under the will, the rights of her heirs will he determined by it so far as it took effect.</p> <p>3. Election Under Will.—The principle of election is, that he who accepts a benefit under a will must adopt the whole contents of the instrument so far as it concerns him, conforming to its provisions and renouncing every right inconsistent with it.</p> <p>4. Same—Consideration.—Some free disposable property must be given to the electing donee which can become compensation for what the testator-sought to take away. See facts showing such consideration, and an election under the will.</p> <p>5. Same.—After an election is made, the electing party, after acquiring the benefits of the will, can not change the rights of other parties under the will by word or act in hostility thereto.</p>

<p>1. Power of District Clerks to take Probate of Wills in 1875. The Act of June 2,1873 (Paschal’s Digest, article 5462a), “ prescribing the mode of proceeding in District Courts in matters of probate,” provided that the clerks of such courts should have power (among other things) “to probate wills * * * when there is no contest.” Section 9, article 5, of the Constitution of 1869, provides, that “ the said clerks shall exercise such powers and perform such duties appertaining to the estates of deceased persons * * * in vacation, as may be prescribed by law; provided, that all contested issues of law and fact shall be determined by the District Court.” Under these laws, a will admitted to probate in January, 1875, by the clerk of the District Court having jurisdiction over the estate, was duly probated. This power is not affected by section 7 of article 5 of the Constitution.</p> <p>2. Adverse Possession.— The mere occupancy of land by grazing livestock upon it, without substantial enclosures or other permanent improvements, is not sufficient to support a plea of limitation under our statutes.</p> <p>3. Same—Case Adhered to.—Whitehead v. Foley, 28 Texas, 291, adhered to.</p>

<p>1. Fixtures—Attachment and Sale of Same as Personalty Void. A cotton gin with stationary engine and press was shown to be a fixture. Attachment and sale of the gin, etc., as personal property, was void, and conferred no title on purchaser.</p> <p>2. Same—Case Adhered to.—Hutchins v. Masterson, 46 Texas, 554, adhered to, as criterion by which the nature of chattels as fixtures may be determined.</p> <p>3. Intent Touching Fixtures,—It having been shown that land was purchased with intent to place upon it a cotton gin, and that such machinery after-wards was placed thereon and used: Held, that the question of intent relates to the time when the land was purchased and the machinery placed upon and attached to it. See evidence showing such intent to make the machinery a part of the realty so as to constitute it a fixture.</p>

<p>Fact Case—Principal and Agent—Cotton Factor.—A cotton buyer employed agents at a distance to buy cotton on the terms following: Each day the buyer was to furnish by telegraph to the agents a limit in price to be paid that day. The agents were to buy cotton, pay for it with their own money, send samples to their principal, when he was to classify it, and as fast as fifty bales of one grade were purchased he was to pay for same and furnish shipping orders. The agents were to receive 25 cents for each bale and the yard charges for their services. The agents bought 154 bales, notified their principal each day of the purchases, sent forward samples of the bales, and in each sample was enclosed a tag showing the number and weight of the bale. The bales were numbered consecutively as bought. The principal did not open the samples, but at once and repeatedly wrote for invoice and description, stating “ that he could not classify without this.” The agents paid no attention to these requests, but finally wrote to the principal to come and receive the cotton or they would sell it. The principal not complying with their request, they sold the cotton. The principal was solvent. In suit by him for the value of the cotton sold, held, that upon the purchase under the contract the cotton became the property of the plaintiff, and that the defendants were liable for the excess of sale price over cost and agreed compensation.</p>

<p>1. A Mortgage is Property — Injury by Public.—Our Constitution, article 1, section 17, provides, “that no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made.” A mortgage is property within the meaning of this provision.</p> <p>2. Damage.—By damage is meant loss or diminution of what is a man’s own, occasioned by the fault of another.</p> <p>3. Taking for Public Use.—The mortgagee or beneficiary in a trust deed of land taken in the exercise of the right of eminent domain should be made a party to condemnation proceedings. Proceedings against the mortgagor will not affect the rights of the mortgagee.</p> <p>4. Case in Judgment.—Appellant, who was plaintiff below, was beneficiary in a trust deed upon land through which Shackelford County, acting by its commissioners, opened a public road. The plaintiff was not made party to the condemnation, and the county settled with the mortgagor. In suit for damages by reason of impaired value of the security (which security was alleged to be less than the debt), the note not being due, held, that demurrer to the petition was properly sustained. As plaintiff was no party he was not affected by the condemnation, and when the debt matures he may foreclose against the mortgagor and the county.</p>

<p>1. Negligence as to Defective Railway Bridge — Pleading and Evidence.—See statement of the pleadings in an action for injuries received by plaintiff, caused by a defective bridge of a railway company, and testimony admissible under them, authorizing the following charge of the court: “ If you find that plaintiff was injured as alleged by the train falling through a washed-out bridge, and you further find that the defendant had on that occasion reasonable grounds to apprehend danger at the said bridge, and by the use of ordinary care could have discovered the wash-out and warned plaintiff in time to have prevented the accident, but did not do so, and that the accident causing plaintiff's injuries was the result of such failure, then you will find for the plaintiff, whether you find that the bridge was ordinarily safe or not.”</p> <p>2. Corporation Acts by its Agents—Pleading;—A corporation necessarily acts through the agency of its servants. It follows that an allegation charging negligence against the corporation will admit proof of the negligence of its agents who may be charged with the duty of performing that the omission of which constitutes the negligence complained of.</p> <p>3. Duty of Railway Company Touching its Bridges, etc. —It is the duty of a railway company to its employes and servants operating its trains to make frequent and thorough inspection of its line of road and bridges; and in case of violent storms it should make such inspection with more than ordinary promptitude and thoroughness, and in particular to examine such portions of it as are liable to injury by such storms; and where this duty by the rules of the company is devolved upon the section men, their negligence is the negligence of the company.</p> <p>4. Repairs Upon Defective Road.—While it is incompetent as against the defendant when sued for damages from alleged negligence in the construction of its road or bridges to admit testimony showing that since the injury complained of the defendant had repaired or supplied the alleged defect, yet when by the testimony of the defendant upon the same subject the testimony to repairs, etc., may become admissible in rebuttal, any error in admitting it when first offered becomes immaterial.</p> <p>5. Duty—Rain Storm as Notice.—The occurrence of a violent rain storm of itself seems to be considered sufficient notice to a foreman charged with looking after the condition of the bridges upon his section, to make immediate inspection as to the condition of his section of the track after such storm.</p>

<p>1. Through Railway Ticket over Several Lines.—Looney bought a railway ticket at Birmingham, Alabama, for passage to Cameron, Texas, on the several connecting lines between the points. The ticket was limited as to time, and the limit had expired from fault of one of the lines before he reached the line of the defendant. Passage was refused by conductor on defendant’s train on the ticket because it had expired before it was presented-. Suit for damages for the refusal, etc. The petition alleged that the ticket was a joint undertaking on the part of all the lines of railway between Birmingham and Cameron. Held, upon such allegations, that the defendant would be responsible for the default of the connecting line causing the delay, at least to extent of honoring the ticket when presented.</p> <p>2. Joint Liability— Through Ticket Limited..—A joint undertaking executed by one of the lines for itself and connecting lines to transport the ticket holder from Birmingham, Alabama, to Cameron, Texas, within limited time, would also apply to the time within which the journey should be commenced. The ticket holder having commenced the journey within the limit of the ticket, he would be entitled to be carried to his destination, notwithstanding, the limit expired while on the continuous journey indicated by the ticket.</p> <p>3. Contract on its Face a Several Obligation.—In the ticket issued to Looney from Birmingham to Cameron it is expressly stipulated that the selling carrier acts as the agent of the connecting carriers, and will not be responsible beyond its own line. In such case each coupon became the separate contract for the line for which issued; and the ticket does not imply a joint obligation resting upon each of the companies.</p> <p>4. Limiting Responsibility by Carrier to its Own Line.—A carrier may limit its liability to its own line in carrying passengers and freight.</p> <p>5. Reasonable Limit of Time in Through Ticket. — The limit of four days was shown to be reasonable between Birmingham and Cameron. The ticket holder was bound by it, as the journey could have been made in ordinary railway time within the limit. The ticket, therefore, so far as obligatory on the defendant, required it to carry the ticket holder upon it being presented within the limit. It was not liable for the delay of an intermediate line, whereby the ticket holder could not reach the line of the defendant in time to avail himself of his ticket.</p> <p>6. Liability for Delay on Limited Through Ticket.—The line causing delay of a passenger upon a limited through ticket is liable to the passenger for damages resulting from such delay, upon a ticket such as held by Looney, the appellee.</p>

<p>Business Homestead.—The Constitution exempts from forced sale the lot or lots used as a place to exercise the calling or business of the head of a family. When it is shown that a part of the lot or lots is occupied by the business house of the head of a family, the remaining portions of the lots are exempt from forced sale, unless it is shown that such unused part is put to some use other than that connected with the business in which the head of the family is engaged.</p>

<p>Appeal from Bexar. Tried below before Hon. G-. H. Noonan.</p>

<p>Error from Burnet. Tried below before Hon. W. A. Blackburn.</p>

<p>1. Measure of Damages.—The appellant, under contract with Dunman, entered upon certain lands and became entitled to stipulated rights, upon condition that the appellant company should fill with water once a week a certain tank owned by Dunman. The company failed to comply with the conditions, and Dunman brought suit for the land and for damages, thus ending the contract. Suit was brought February 20, 1SS7. The cause was tried October 15, 1889. The court instructed the jury that the plaintiff was entitled to recover “ the value of the use and occupation of the land and privileges held by the defendant company.” Held, that the instruction gave the correct rule as to the damages subsequent to February 20, 1887; as to damages which had accrued prior to that date, they would be measured by the contract, viz., the loss from the failure to fill the tank as contracted for.</p> <p>2. Same — Case Adhered to.—Railway v. Dunman, 74 Texas, 265, adhered to.</p> <p>3. Opinion Testimony—Nonexpert.—It was competent to allow a witness to give his opinion as to the value of the use and occupation of a tract of land, the witness being familiar with the facts, although there was no market value known to said witness for like property.</p> <p>4. Improvements as Fixtures.—The lessee or purchaser forfeiting his estate had erected valuable improvements. Whether the structures so erected should remain as part of the realty and go to its owner will depend upon the character of their use and their annexation to the soil—a mixed question of law .and fact. If there has been no permanent annexation they would be removable fixtures, and not a part of the realty.</p>

<p>Error from Kendall. Tried below before Hon. T. M. Paschal.</p>

<p>1. Public Road Laid Out Through Private Property.—The owner t>f land through which a public road has been surveyed is entitled to an injunction against the opening up of such road until adequate compensation be made for the land to be taken. The compliance with the statute by making the necessary deposit of the value of the land, will be ground for dissolving such injunction, at costs of the county or road overseer.</p> <p>2. Establishing Public Road — Assessment of Damage.—The county commissioners may reduce the assessment of damages reported by the jury of view, and by them allowed the owner of land through which the public road is established. Sayles’ Civ. Stats., art. 4372.</p> <p>3. Delay in Opening Public Road.—Damages were assessed November, 1888, by the Commissioners Court in favor of an owner of land through which a public road was established. A road overseer was appointed and ordered to open the road one year after. In December, 1889, the overseer was proceeding to open the road when the injunction was sued out. Subsequently the money allowed the owner was deposited for his use. Held, that the right to proceed and open the road was not lost by such delay.</p> <p>1. Mills County had no right or authority to deprive appellant of his property without having first paid or secured the payment of the damages awarded him. The paying or securing of the payment of the damages is a condition precedent to its right to appropriate the land. The taking of the property and payment therefor should be concurrent acts. An offer to pay the damages sixteen months after the property was condemned comes too late; and after the lapse of such length of time, and after suit had been resorted to, appellant ought not be required to accept the damage and surrender his property. Const., art. 1, sec. 17; Rev. Stats., arts. 4372, 4373; Railway v. Ferris, 26 Texas, 588; Acts spec. sess. 1884, pp. 19-25, 63, 64.</p> <p>2. If the Commissioners Court deemed the damage awarded appellant by the jury of view excessive, it should have discharged the jury and appointed another, or avoided the property so greatly damaged. It had no authority to reduce, without plaintiff’s knowledge or consent, the damages awarded him. Rev. Stats., arts. 4360-4390; Acts spec. sess. 1884, pp. 19-24, 63, 64; Acts 1885, p. 92.</p>

<p>1. Appeal Bond in Justice Court—Description of Judgment.—-In an appeal from a judgment in a Justice Court the bond is sufficient, the statute in •other things being followed, if the description of the judgment as given in the bond is full enough to identify it as that appealed from, although in some respects the bond may misdescribe it. The bond in this case gives the number and title of the case as stated in the transcript from the Justice Court, and correctly names the court rendering the judgment. Held, error in the District Court to dismiss the appeal on the ground that the bond did not sufficiently describe the judgment appealed from.</p> <p>2. Same—Cases Discussed and Adhered to.—Herndon v. Bremond, 17 Texas, 434; Hodde v. Susan, 63 Texas, 309; Christian v. Crawford, 60 Texas, 45; Railway v. Stanley, 76 Texas, 419; Mills v. Hackett, 1 White & Willson's Civil Cases, section 439; Dutton v. Morton, 1 White & Willson’s Civil Cases, section 358; Melson v. Baird, 1 White & Willson’s Civil Cases, section 1236; Austin v. McMahan, 2 Willson’s Civil Cases, section 439; Parsons v. Crawford, 2 Willson's Civil Cases, section 669; Laird v. Freiberg, Klein & Co., 2 Willson’s Civil Cases, section 111; Moses v. Clements, 3 Willson’s Civil Cases, section 171, discussed and adhered to.</p>

<p>1. Power to Sell' Under Trust Deed Exists While Any of the Debt is Unpaid.—A trustee with power to sell can act under the power so long as any part of the debt secured by the trust remains.</p> <p>2. Legal Title—Trespass to Try Title.—In this case the pleadings were simply the statutory form in trespass to try title. No facts calling for equitable relief were alleged by either party. In such state of the pleadings the holder of the legal title is entitled to recover, notwithstanding facts which if pleaded would have required equitable adjustment otherwise.</p> <p>3. Equities—Credits—Practice.—Facts tended to show that the trustee had misapplied money which came to his hands for payment upon the note secured by the deed constituting him a trustee; also that other and sufficient securities had been released by the trustee and holder of the note, which in equity would have operated as a release of the property in hands of the trustee. These facts could not be considered under the pleadings. But this judgment should not bar a suit in which equitable relief may be had upon the facts when pleaded.</p>

<p>1. Trust—Estate of Beneficiary.—A deed from the husband recited that “he was largely indebted to his wife for money by him used, and which belonged to her, and desiring to repay her he executes the deed.” The deed conveyed certain lands to her children in trust for their mother. In the habendum clause the estate is to be held “in trust for her and themselves forever.” Suit by guardian of the beneficiary (she being non compos) against the city of Waco and against her children for land conveyed by the deed. Held:</p> <p>1. The nature of the trust not having been prescribed in the deed, it is what is known as a simple or dry trust, in which the beneficiary is entitled to the actual possession and enjoyment of the property, and to dispose of it, or to call upon the trustee to execute such conveyances of the legal estate as he directs.</p> <p>2. The granting clause in the deed is not controlled by the habendum clause, and the deed conveyed the land in sole trust for the mother.</p> <p>2. Public Streets Held by Limitation.—A city may hold land appropriated by it for public streets adversely to the owner. The ordinary uses of a public street Should be regarded as such adverse possession. It seems, however, that in claiming under the statute of five years, payment of taxes should be proven by the city as in other cases.</p>

<p>1. Jurisdiction of District Court — Cases Adhered to. —Erwin v. Blanks, 60 Texas, 583, and Carney v. Marsalis, 77 Texas, 62, adhered to. The District Court has jurisdiction to try the right to property the value of which is fixed by the sheriff in his return at $500.</p> <p>2. Trial of Right of Property—Copy of Writ. — The sheriff, when property in his hands is claimed by affidavit and claim bond, is required to return the affidavit and bond with copy of the writ under which he seized the property. When a copy is found among the papers of the case with a return upon it signed by the sheriff officially, and showing his seizure of the property under it, and his release of it upon claimant executing the statutory claim bond, it will be presumed that the sheriff performed his duty and returned a true copy of the original writ.</p> <p>3. Chattel Mortgage.—A chattel mortgage, although registered-under the Act of April 22,1879 (Sayles’ Civil Statutes, article 3190b), is not admissible in evidence unless its execution is proven as at common law.</p>

<p>1. Usury.—See facts where the contracts signed by a shareholder in a building association, taken in connection with the by-laws of the concern, show that usurious interest was charged for advances and loans made by the company.</p> <p>2. Vendor’s Lien—Subrogation.—The holder of a note executed for a loan applied to the discharge of the vendor’s lien upon property mortgaged to secure it, becomes subrogated to the discharged vendor’s lien to the amount so applied.</p> <p>3. Allowance of Claim by Administrator.—When an administrator has allowed a claim against the estate, he can not withdraw such allowance by protesting against the approval by the county judge.</p> <p>4. Order of Probate Court Setting Aside Homestead.—The order of the Probate Court setting aside the homestead to the widow and children, or either, under the statute, does not exhaust the power of the court over such homestead, and it is subject to sale for any liens upon it.</p> <p>5. Homestead of Widower may be Mortgaged.—A head of a family after his wife’s death, his family consisting of his minor children, may mortgage his homestead.</p>

<p>Appeal from Bexar. Tried below before Hon. W. W. King.</p>

<p>1. Damages by Public Road. — The damages caused by laying out a public road belong to the owners of the land over which it passes. A subsequent lessee of the Iqnd enclosing it between the order establishing and the order opening it up, can not recover damages for injury to his enclosure, or for improvements rendered necessary to the use of the land, and occasioned by the opening up of the road. See example.</p> <p>2. Damages for Land Taken for Public Road. — The owner is entitled to the value of land taken for a public road, regardless of its effect upon the value of the land not so taken. It is error to set off against such value an estimate of increased value from the road to the land not taken.</p> <p>3. Damages from Public Road Set off.—Damages occasioned by opening a public road, other than the value of the land taken, may be set off against increased value caused to the remaining tract. For example, the cost of running a fence may be so offset.</p>

<p>1. License to Carry on an Occupation.—In a general sense a license is an official permit to carry on a business or trade, or perform other acts which are forbidden by law except to persons obtaining such permit. It also may apply to occupations not otherwise unlawful, but which the public welfare may require to be under some restraint.</p> <p>2. Power to License does not Include Power to Tax.—The power given in a city charter to license does not confer a power to tax; by which is meant the power to take from the citizen a sum for the support of the government, whether it be national, State, or municipal.</p> <p>3. Taxation Must be Uniform. —The Constitution provides, that “all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax.” Const., art. S, sec. 2. This is as binding in case of occupation taxes levied by a municipal corporation as in such taxation levied by the State.</p> <p>4. Unequal Taxation — Indirect Violation. —A municipal tax upon butchers vending meat of $75 per stall per annum, and collected only of butchers vending meat at private stalls, and not of butchers renting stalls from the city, is a violation of the provision of the Constitution requiring equal taxation. The inhibition applies to the collection equally as to the levy of taxes.</p> <p>5. Constitutional Limit to Subjects of Municipal Taxation.— Under the Constitution the sum a municipal corporation may collect as a tax on a given occupation can not “ exceed one-half of the tax levied by the State for the same period on such profession or business.’-' And this necessarily involves the proposition that the Legislature must determine that the occupation shall be taxed for the benefit of the State before a municipal corporation can tax it at all. When the Legislature has declared that an occupation shall be taxed, then, and not before, has a county, town, or city the power to levy a tax upon such occupation. The Constitution only permits occupations to be taxed when the Legislature deems proper.</p>

<p>Mortgage Held Valid.—A mortgage of a stock of goods to a trustee, with power to sell and apply the proceeds to the payment of the claims of named ■creditors, is not invalid by reason of the following paragraph in the instrument: “ The said W. J. McDonald (trustee) is to proceed at once, after taking invoice thereof, to sell said goods and property for cash, either at wholesale or retail, or in job lots, and in either or all of said ways, so as to realize the money therefor in the speediest way consistent with the interest of all concerned.” The instrument was attacked on the alleged reason that sales could only be made at private sale and in regular course of business.</p>

<p>Appeal from Johnson. Tried below before Hon. J. M. Hall.</p>

May 20, 1889, appellants instituted this suit in the County Court, by bill of review, against appellees, seeking to set aside and review certain orders of the Probate Court made at its Hay Term, 1881. The petition,, in substance, alleges: That appellants Jessie Kendrick and Effie Burnett are the children of appellee Walter Wheeler and his deceased wife A. C. Wheeler.

<p>1. Stoppage in Transitu.—The seller of chattels has a lien upon them and the right to hold them for the purchase price so long as they are in his possession ; and when they have been shipped for delivery to the debtor who has become insolvent, the right to stop them on the way, to recover possession, and subject them to the payment of such unpaid price. This right continues not only while the goods are in actual transit, but until they have reached their destination and are delivered into the actual or constructive possession of the consignee.</p> <p>2. In Transitu.—Goods shipped to failing merchants reached Waco, their place of business. After the consignees had been closed out by attachment an attempt was made to seize said goods by levy of attachment at the depot, and while on drays on the way from the depot to the store house, then in the hands of the sheriff under other attachments. Held, that the goods had not reached the end of their transit, and the seizure by the sheriff did not deprive the sellers of their right of stoppage. The goods while in the railway depot and on the drays were still in course of transportation.</p> <p>3. Inconsistent Attempt at Agency. — Merchants became insolvent, and their goods were seized and place of business closed under attachment by-the sheriff. A bank sued out an attachment, and the cashier of the bank ascertained that goods shipped to the insolvent debtors were in the railway depot. Desiring to subject these goods to the attachment issued in favor of the bank, said cashier obtained an order from one of the bankrupt firm for the goods. The bank loaned the Arm money to pay freight. With such order the goods were surrendered by the railway, and were loaded on drays and shipped to the closed business house of the consignees. Held, that the acts of the bank cashier were not as of an agent of the bankrupt debtors; his relations with the bank and his acts in the matter made manifest his agency for the hank.' 1-Iis receiving the goods was not the act of the consignees, nor was the delivery to the sheriff such delivery.</p> <p>4. Practice. — The sellers were not bound to intervene in the attachment suits in order to maintain their right of stoppage in transitu when the goods were seized under attachment when on the route.</p> <p>5. Stoppage, etc.—The creditor's right to stop the goods is to recover the-possession and hold them subject to the seller's lien, and if the goods have been converted by one in violation of this right, he would be liable for the value of the same. In such suit the debtor is not a necessary party.</p>

<p>Appeal from Fannin. Tried below before Hon. E. D. McClellan.</p>

<p>Homestead — Judgment Lien.—Walzem owned a homestead in the city of his residence. He desired to,remove, and leased a house and lot in same city and moved to it, wishing to buy the premises. While residing upon the rented premises he sold his old homestead and applied the purchase money to the purchase of the house and lot upon which he was residing. He continuously thereafter resided there with his wife and children. Prior to his purchase an abstract of a judgment had been duly recorded and- indexed in the county. In suit by holder of the judgment to subject the house and lot to the satisfaction of the judgment and judgment lien, held, as the defendant and his family were actually residing on the premises when he bought, buying with intent that the property should be his homestead, that the homestead exemption attached to the property when purchased, to the exclusion of any lien sought to be enforced by the registry and indexing of the judgment.</p>

■ This is an appeal from a judgment for $1000 for right of way for appellant through two tracts of land. The commissioners allowed $125 in the aggregate. Appeal was taken by the land owner. The facts are given in the opinion.

<p>1. Adverse Possession.—To constitute possession of land adverse under the statute of limitations, the holding must be against the claim of all other persons. Occupying land under belief that it was vacant, with intent to obtain title from the State, is not adverse possession. It is not necessary that the owner be known in case of occupancy under claim of ownership.</p> <p>2. Acknowledgment to Deed. — A certificate of acknowledgment to a deed recited: “Personally appeared ,T. T. Bates, tax collector of said county, to me well known, and acknowledged,'' etc. “ J. T. Bates, tax collector of Concho County.” This was a- substantial compliance with the statute in the form of the certificate.</p> <p>3. Tax Deed—Limitation.—A tax deed is admissible in evidence to support the plea of five years limitation, as well as of claim for improvements made in good faith, without proof of a levy of the tax and the usual prerequisites to a sale for the taxes.</p> <p>4. Tax Deed for Several Surveys Sold Together Void. — A tax deed showing on its face that the sale for taxes evidenced by it was made of several tracts of land in gross is void.</p> <p>5. Tax Deed Void on its Face will not Support Limitation of Five Years.—A tax deed void on its face is not a deed as meant by the statute of limitation of five years.</p>

<p>1. Case Adhered to.—Railway v. Johnson, 76 Texas, 421, adhered to, touching liability of railway company for negligent injury inflicted upon a passenger while the railway was operated by a receiver.</p> <p>2. Removal of Causes to United States Courts—Practice. — The petition for removal of a cause from the State to the United States court should be presented to the State court and the opportunity given to that court to act. Presentation to the clerk of the court, or to the judge out of term time, is not sufficient.</p> <p>3. Petition and Bond for Removal.—Petition for removal, with bond, was filed in the State court before the defendant was required to answer, and before answer. At a subsequent day of the term, before any other action was had in the case, answer in the interval having been filed, the application was called to the attention of the court. Such presenting, etc., was a compliance with the law requiring that the petition, etc., be presented before filing answer.</p> <p>4. Insufficient Allegations for Removal. — Plaintiff sued Brown as receiver and the appellant for damages for injuries suffered from negligence of operatives of the road while operated by the receiver. The residence of Brown was alleged in the petition to be in Dallas County, Texas. An application by Brown to remove the case to the United States Circuit Court on grounds of his residence, alleged to be in Tennessee, was insufficient. His residence in Texas at the time of the injury was not negatived.</p> <p>5. Ground for Removal by Texas & Pacific Railway Company. The alleged cause of action was personal injury to plaintiff from negligence by operatives of the road while in hands of the receiver. It was alleged in the petition that the receiver had been discharged before suit. The railway company filed its separate application for removal of the cause to the United States Circuit Court, regular in form. Held:</p> <p>1. Whatever liability there was on Brown was official, and ended with his discharge as receiver.</p> <p>2. No ground for personal action against Brown having been alleged, the right of the appellant railway company, a corporation organized under an act of Congress, to remove the cause could not be affected by the fact that Brown had been made a party, or that he had not joined in the application, or had made an imperfect application in his own behalf for removal.</p> <p>3. The refusal to grant the motion for removal was error, and ground for reversal.</p>

<p>1. Suit on Bond of Executors.- -A creditor of an estate can not sue on the bond of the executor while the administration is pending.</p> <p>2. Appeal from Final Settlement Account.—An appeal to the District Court from an order of approval of the final settlement account of an executor in the Probate Court, suspends the operation of such order as a discharge, and pending such appeal a creditor can not sue upon the bond of the executor.</p> <p>3. Appeal in Probate Court.—Executors filed a settlement account, and with it an exhibit showing expense account claimed. Objections were made to some items upon the exhibit by a creditor. The objections were docketed separately in the Probate Court. The court overruled the objections to the expense account, and on another day at same term approved the settlement account. Held, an appeal from the order overruling the exceptions to the expense account carried the entire case to the District Court. A suit brought on the bond by a creditor while such appeal was pending in the District Court and in the Supreme Court was properly dismissed.</p> <p>4. Res Adjudícala.—Where items in the settlement account of an executor are objected to by a creditor and appeal is taken and the judgment affirmed, the action of the court on appeal is final. No other creditor can be heard upon such objection.</p>

A statement of the testimony discussed is given in the brief for appellant. The opinion gives the nature and result of the suit.

<p>' Pre-emption—Residence Necessary.—November 16,1874, Johnson had the land in controversy, 160 acres, surveyed for his pre-emption. He never-lived upon the land, before or after the survey. In 1875 he made a verbal sale of the land to one Cates, who went into possession soon after. In 1882 Johnson, with consent of Cates, executed a deed for the land to Sanders, who had bought Cates’ claim. On April 9,1884, Sanders made proof of his occupancy, and resided upon the land until 1886, when he moved to the Indian Nation, leaving the land in possession of Swetman. Neither Cates nor Sanders ever had the land surveyed. Swetman, being head of a family, repudiated Sanders’ claim, and pre-empted the land. His application was made May 10, 1888. Sanders sued for the land, also claimed value of improvements appropriated by Swetman. Held:</p> <p>1. The survey of the land in 1874 under the Act of 1873 was void, from the fact that Johnson, for whom it was made, never occupied or settled upon the land.</p> <p>2. Not being an actual settler upon the land, Johnson’s claim did not come under the Act of March 13, 1875, for relief of actual occupants, etc.</p> <p>3. The land being public domain, Swetman could repudiate his contract with Sanders and secure the land under the law.</p> <p>4. Sanders, even if entitled to pay for improvements made by him, could not have the land charged with their value, on account of its homestead character.</p>

The counsel for the appellants have made the following statement of the nature and result of the suit, viz.: “On the 26th of October, 1888, P. J. Willis & Bro. filed suit in the District Court of McLennan County against J. W. Satterfield & Bro.

<p>1. Illegal Sale Under Article 4603, Paschal’s Digest. — The sale denounced in article 4603, Paschal's Digest, is one that •• illegally affects” the’ separate property of the wife. It requires a sale effected; one that in the appearance of things attempts to convey title to the property of the wife. This statute does not apply to a deed signed by husband and wife and wanting in the privy acknowledgment of the wife. See defective certificate of privy aeknowlment.</p> <p>2. Registration of Deed Under Limitation of Five Years. —A deed signed by husband and wife, but not duly acknowledged by the wife, the acknowledgment by the husband being legal, where there is nothing to show otherwise than that the land conveyed was community property, is a sufficient basis for limitation under recorded deed under the five years statute; and this although the land be the separate property of the wife.</p> <p>3. Tacking Disabilities.—Suit by heir of the mother for land alleged to have been the mother's separate property. The land had been the subject of an attempted sale, but which was void as to the mother by reason of defective certificate of privy acknowledgment. The plaintiff was a minor at her mother's death. Held, that limitation began at the mother’s death, and was not interrupted by the subsequent marriage of the daughter, who was the plaintiff.</p>

<p>City Charter Construed—Power to Tax—Street Improvements.. In the charter of the city of B1 Paso is the following section: “ The city council shall be invested with full power to grade * * * any avenue * * * within the limits of the city whenever * * * provided, the city council shall pay one-third and the owners of the property two-thirds thereof, except the intersection of the streets, from lot to lot, across the streets either way, which shall be paid for by the city alone.” Improvements were made upon a public street, and the city authorities were proceeding to sell lots abutting on said street to pay assessments made for the improvements. The lot owners obtained an injunction, and the city reconvened, asking judgment for the tax due from each of the plaintiffs, etc. The above section was the only authority for the tax. Held:</p> <p>v 1. The city had no power in the premises not conferred by its charter, and that is silent with respect to a lien upon property for the purpose of improving-a street.</p> <p>2. While the charter plainly shows an -intention to create a personal obligation, and not a charge upon property, it fails to mention who are the persons to be charged, or to prescribe any rule by which this can be ascertained.</p> <p>3. There is no mode of ascertaining who are “the owners of the property,” or in what proportion such owners, if ascertained, should pay.</p> <p>4. The injunction was properly perpetuated restraining the collection of such, assessments.</p>

<p>1. Fact Case.—See testimony held insufficient to show legal or equitable title in the plaintiff, the bridge company, in the land adjoining the bridge, and which by injunction was sought to be protected from invasion by the city for sewer and other purposes, alleged to endanger the safety of the bridge.</p> <p>2. Holding Under Deed — Practice. — Grantors of the two acres tract claimed by plaintiff held said tract under a deed reserving streets through it, and dedicating the land so reserved to public use as streets. The work carried on by the city of Waco sought to be restrained was upon one of the streets so reserved. In the preparation for trial this deed was included in the list of title papers furnished by the plaintiff to counsel for the city. On the trial the deed was not introduced by the plaintiff bridge company, counsel stating that the plaintiff did not claim under it. Held, under the circumstances the simple disclaimer of holding under the deed was not sufficient reason for excluding it when offered by the city.</p> <p>3. Effect of Recitals upon Privies—The deed clearly reserved and dedicated a street. If the plaintiff had accepted it, and held under it, or if it was a link in its chain of title, it was bound by it. Even if it was not a necessary link in its chain of title, if it acquired the title of those holding under it, for the purpose of quieting its title or removing clouds or conflicting claims, it must be held to have taken it with and become bound by its reservations.</p> <p>4. Same—Recitals in Deeds.—It was sufficient and competent that the deed appeared to be one of the sources under which plaintiff claimed the land, to show the rights of the city in the streets reserved in such deed.</p> <p>5. Same—Deed by Attorneys and Power Not Shown.—Inasmuch as the deed was not offered as evidence of title, the absence of the power of attorney under which the deed was executed was not material, nor did it affect the question of its competeny and relevancy that it was a quitclaim. The deed contained a reservation and dedication of the streets, and the grantee recognized them by accepting the deed.</p> <p>6. Power to Make Dedication. — Where a deed executed by attorneys contained reservations for streets, it seems that only the grantors could take advantage of the want of power. Long acquiescence is persuasive of power or of ratification.</p> <p>7. Vendees.—The vendees under a deed reserving streets can not defeat such reservation or dedication, or convey to their sub-vendee a greater right than they had.</p> <p>8. Right of Incorporated Bridge Company to Use of Streets.— Although work of a bridge company may be necessary to the safety of the structure, it does not follow that for such purpose a public street may be occupied against the consent of the city having control of such street.</p>

<p>Undue Influence — Will. — See facts tending to show that a will offered for probate had been procured by undue influence used by the beneficiaries. The facts require that a verdict sustaining the will be set aside.</p>

<p>Party to Deed can not as an Officer take Acknowledgment to it.—A party to a deed or mortgage is not competent to take the acknowledgment of the instrument. Such certificate of a privy acknowledgment to a deed of transfer taken by the trustee named in the deed is void, although the trust be assumed by a substitute trustee appointed by the beneficiaries under a stipulation in such instrument. If the property be the separate estate of the wife, then the trust deed is void.</p>

<p>Error from Denton. Tried below before Hon. F. E. Fixer.</p>

<p>1. Bona Fide Purchaser.—D. was common source of title. He conveyed the land to Duncan in 1860 by warranty deed reciting payment of the purchase money. This deed was not recorded until 1889. D. died testate and his property went to his widow, who quitclaimed the land to the city of San Antonio, informing the mayor of the unrecorded deed to Duncan. The city donated the land to the United States. In trespass to try title by heirs of Duncan against United States Army officers in possession, held, that the title of plaintiffs was valid, and the facts negatived good faith in the city of San Antonio or the United States in the purchase of said land.</p> <p>2. Nonpayment of Purchase Money. — That Duncan may not have paid the purchase money did not affect the right of his heirs to recover the land Against any claimant but the vendor.</p> <p>3. Suit Against United States Government. — While the United States can not be sued except in such cases as may be prescribed by Congress, yet the officers and agents of that government, when holding possession of property for public use in their official character, may be sued in any court of competent jurisdiction by the owner of such property, and such relief given against them as might be if their holding was not official.</p> <p>4. Same.—Such suit against United States officers in possession would not bar the government from resorting to any lawful remedy for the recovery of any right it may have therein.</p> <p>5. Intervention. — That an intervenor bought an interest in the land in controversy from one not a party subsequent to the filing of the suit, in no way ■affects his right to intervene and assert such title as he may have.</p> <p>6. Limitation Against and in Favor of the United States.—As no action can be maintained against the government, no limitation would run in its favor against the owner of land occupied by the United States.</p> <p>7. Same—Statute of Limitations.—The United States, whether named in a State statute of limitations or not, is not bound thereby, and unless therein expressed in the statute the rule is well established that such statutes are not applicable to a State, or to the United States, whether appearing as plaintiff or defendant.</p> <p>8. When Limitation Begins to Bun.—Limitation runs when the right or cause of action accrues, and not before. This right does not exist unless facts ■exist which authorize the owner to sue, and the law allows him to sue the party aggressing upon the property claimed.</p> <p>9. Power of United States District Attorney.—We are not referred to any Act of Congress which empowers the Attorney-General or the United States district attorney to make the United States a party defendant in an action in the State courts of trespass to try title against United States Army officers to recover land occupied by them as an army post. In absence of such a law jurisdiction can not be conferred upon the State court by an appearance entered by the United States district attorney.</p> <p>10. Army Officers.—Army officers occupying land without the consent of the owner, and without authority of law, stand under the same liability as would a private citizen. That such occupation was taken as military officers and under orders from their superiors, would not affect such liability.</p> <p>11. Case in Judgment—Plaintiff sued General Stanley and others, army officers, stationed near San Antonio, for recovery of land donated by the city to the United States for an army post. The defendants were represented by the United States district attorney, under orders from the Attorney-General. The xlistrict attorney also appeared for the United States, pleaded limitation, suggested improvements, etc. Held:</p> <p>1. The plea of limitations by the United States was properly stricken out.</p> <p>2. Such facts, however, might be considered as an evidence of a superior outstanding title in the government.</p> <p>3. The district attorney could not make the United States a party defendant by entering an appearance officially.</p> <p>4. As the United States was not a legal party to the suit, it was error to render judgment in its favor for value of improvements.</p> <p>5. The army officers are liable personally for the damages for the illegal use and occupation.</p>

<p>1. Evidence — Copies of Copies.—Under ordinary circumstances, and under former decisions, copies taken from copies are inadmissible. But in view of more than a century’s possession and continuous assertion of title under claim of right such as the originals of the copies would evidence, the admission of such remote copies can not be regarded as error.</p> <p>2. Archives in Land Office—Case Adhered to.—Downing v. Diaz, 80 Texas, 436, adhered to, holding that the collection made by J. L. Haynes, and reported to be filed in the Land.Office, of proceedings had in founding towns upon the Rio Grande (Laredo and Guerrero), fixing their jurisdiction, granting them lands, etc., became archives in the Land Office, and certified copies therefrom are competent in evidence whenever relevant.</p> <p>3. Relevant Testimony.—The land grants in controversy are bounded on the north by Laredo, on the south by Guerrero, and on the west by the Rio Grande; and in so far as the proceedings relating to either of these towns and their inhabitants may tend to show a recognition by the Spanish government of the rights of the grantee at that early day, or to show the boundaries of his claim, they can not be deemed irrelevant. Besides, they may aid in establishing a grant upon the presumption of possession.</p> <p>4. Same.—The effect of such ancient records is increased when they tend to show a recognition by the Spanish government of the right of the grantee at that early day; and that at so remote a period his claim was recognized by the officers of the government having power to grant lands, and charged with the duty of protecting the interests of the sovereign.</p> <p>5. Boyal Commission Establishing Towns on the Bio Grande. In 1767 the royal commission reached Laredo, for the purpose of establishing towns and granting lands. The proceedings of the commission show that the land in litigation was occupied by Borrego (the grantee), recite that the land had been granted to him, and that a part of the grant under the law was expropriated so as to form part of the town. These transactions were pertinent, and the testimony relevant.</p> <p>6. Transactions Belevant. — Upon the issue of the existence of grants, one in 1750, another in 1753, to Borrego of 75 leagues on left bank of the Bio Grande, and between the towns of Laredo and Guerrero, founded in 1767, a letter from the officer who extended title, and dated subsequently, addressed to a surveyor. directing the erection of monuments for corners, etc., of the surveys, is competent and relevant. So also proceedings instituted in 1828 and in 1829, for the purpose of ascertaining whether the lands belonged to the heirs of the original grantee—reciting testimony taken, the action of the governor and authorities recognizing the validity of the Borrego grants, and the locality.</p> <p>7. Transactions Held Belevant.—-The proceedings and decrees, as well as the evidence on which the decrees were based (in 1828 and 1829) in accordance with the decrees, were filed in the archives of Laredo at the time, a copy of which then made and retained, whence was taken the copy used on the trial of the cause below. This copy was competent and relevant.</p> <p>8. Archives — Copies. — That the paper archived at Laredo may have been n copy of the original papers is a matter of no consequence in this ease; for it is just what the authorities of that day deemed necessary and proper there to place as an evidence of right; and at this day it will be conclusively presumed that they .acted in accordance with the laws then in force.</p> <p>9. Same.—The archive at Laredo was evidence of right when and under the ■circumstances that gave it existence, and the lapse of fifty-eight years since that time, with continuous possession and assertion of claim under the grants, the existence of which the government recognized, has but added to the probative force of the archive.</p> <p>10. Same.—The highest authorities in the State (in 1828 and 1829) acted, made decrees, and directed that they be archived at Laredo, for the very purpose for which copies from the archive and the archive itself were used, and it can not be presumed that these officials exceeded their powers.</p> <p>11. Official Acts of Former Government.—After the lapse of over a century, followed by possession under a grant executed under the Spanish government, it ought not to be claimed that the officer extending the grants did not have power to do so, or to direct them to be surveyed, or to appoint a surveyor and give him instructions touching his survey. A testimonio of the acts of such officer in appointing surveyor, etc., would prove itself after the lapse of time here elapsing.</p> <p>12. Same —Letter of Officer Extending Title Ordering Survey. It is not a reason for excluding such letter, over one hundred years old, directed to an officer, directing a survey and indicating the situation, quantity, and general boundaries, that no evidence was produced that a survey was made, or that the paper was produced by holders under the grantee, or that it was written upon unstamped paper, or that the letter in itself did not show title.</p> <p>13. Unauthorized Surveys.—In 1871 and 1875 surveys were made by the surveyor of the county where the lands are situated. The lands were granted, if at all, in 1750, 1753. Held, that such survey was not authorized by law, and the same did not become an archive when deposited in the Land Office.</p> <p>14. Patents for Adjoining Lands. — It was not error to admit patents the field notes of which call for the grant sought to be established.</p> <p>15. Possession and Claim. — Transactions prior to 1833 among heirs of the grantee, and with others, tending to show possession and assertion of ownership, were competent; and question of original and secondary character of such ancient documents is not material.</p> <p>16. General Visita—Cases Adhered to.—Railway v. Jarvis, 69 Texas, 527; Downing v. Diaz, 80 Texas, 436, adhered to, in holding that the proceedings of the general visita copied from the archives at Laredo, and filed in the General Land Office, became archives in the Land Office. The testimony was relevant, in that the proceedings showed a recognition of the Borrego grants.</p> <p>17. Reputation as to Boundaries.—It was competent for witnesses to testify to locality of boundary lines or corners from reputation, and from declarations by their ancestors, witnesses’ knowledge extending over thirty years. So of occupation by tenants upon any part of the grant holding under it.</p> <p>18. Fact Case —Evidence of Grant.—See facts sufficient to sustain the findings of the trial court that the grants (one for 50 leagues and another for 25 leagues adjoining) were made to Borrego as early as 1757, and that in 1829 the grants were recognized as valid by the State of Tamaulipas; that the boundaries were fixed and ascertained, the original grant being lost.</p> <p>19. Long Possession as Evidence of Grant. — If there was no evidence tending to show that a grant was actually made to Borrego, the possession shown to have existed for a century and a quarter under claim of right to fixed boundaries furnishes evidence on which no court ought to hesitate to presume a grant.</p>

The opinion in Von Rosenberg v. Haynes et al. (ante, page 357), contains a statement of the facts, and a discussion of the questions arising upon the competency and relevancy of the documentary evidence relied upon to sustain the Borrego title. This title is also involved in this case. Both cases involve the sufficiency of the testimony to establish a grant in favor of Borrego.

<p>1. Act Creating Mills County.—The act creating Mills County prescribed that it “pay its pro rata of the liabilities of the four counties from which territory is taken to constitute it, in proportion to the territory taken and the territory remaining in the old county.” One-fourth of the territory of Brown County was included within the limits of the new county. In suit by Brown County against Mills County for the pro rata of indebtedness paid by Brown County, it is held, that said act measures the liability by the territory taken, and not by its value.</p> <p>2. Same — Measure of Liability not Constitutional. —The spirit of the Constitution requires that the taxable value of the property in the territory taken off, in its relation to the taxable value of the property in the territory left in the parent county, must be the criterion by which the indebtedness between the two counties should be apportioned.</p> <p>3. Same—Constitutional Provisions—Article 11, section 1, of the Constitution, provides, that “when any part of a county is stricken off and attached to or created into another county, the part stricken off shall be holden for and obliged to pay its proportion of all liabilities then existing of the count)- from which it was taken, in such manner as may be prescribed by law."’ This must be-construed in subordination to article 8, section 1, requiring uniformity and equality in taxation, and the legislation must conform to that article. The provision, therefore, in the act creating Mills County, fixing its liability according to the amount of territory, ignoring the taxable value of the property therein, imposes an unequal burden uijoii the citizens of such district, and is unconstitutional.</p> <p>4. Cass in Judgment.—Brown Comity sued Mills County for one-fourth of the indebtedness of Brown at the time Mills County was created, paid since it was created. The act creating Mills County cut off one-fourth of the territory of Brown Comity, and provided that the liability of the new county would be upon the proportion of the territory taken with that remaining in the county from which taken. Suit was brought under the statute by Brown County, and recovery had. On appeal, held, that the basis of liability was unconstitutional, and the suit being under it should be dismissed.</p>

<p>1. Surveys—Actual Survey Controls Course and Distance.—The principle is well fixed, that course and distance must yield to the demands of an actual survey, when the evidence establishes the fact of such a survey.</p> <p>2. Calls in Survey.—A call for a stake and mound in one survey considered identical with a stone mound in another later survey made by same surveyor, the two surveys being mapped as adjoining by the surveyor.</p> <p>3. Fact Case.—See facts held sufficient to establish an actual survey identifying the facts of actual surveys, and that two surveys had a common line.</p>

<p>1. Writ Refused in Absence of Motion for Rehearing.—The application for writ of error must show that the applicant has made a motion for rehearing in the Court of Civil Appeals, presenting distinctly all the points on which a writ of error is asked. In absence of such showing, the application will be dismissed.</p> <p>2. Orders of Court Must be Taken Notice of. — All litigants must take notice of the rules of the courts in which they are litigating. See illustration.</p>

<p>Writ of Error Refused where Judgment Reversed.—The law regulating writs of error permits the issuance of the writ by the Supreme Court “ when the judgment of the Court of Civil Appeals reversing a judgment practically settles the case, and the fact is shown in the petition for writ of error.” Act April 13, 1892. This rule does not authorize the writ where the action of the Court of Civil Appeals was upon the giving and the refusing of instructions, or on the exclusion of testimony, where it appears that the facts upon which the charges were based were controverted, or when the evidence rejected was corroborative, and not likely to control the disposition of the case upon another trial.</p>

<p>Insufficient Grounds for Writ of Error. — Where the Court of Civil Appeals reverses and remands a judgment of the District Court on ground of an improper charge by the trial judge, the propriety of such charge depending on the state of the evidence, this court, on application for writ of error, can not assume that there will or will not be evidence on another trial to make such charge improper. Such action by the Court of Civil Appeals can not be said to practically settle the case.</p>

<p>Application for Writ of Error to Court of Civil Appeals, First District, in a case on appeal from the District Court of Trinity County.</p>

On Cebtificate under section 35 of Act of April 13, 1892, organizing Courts of Civil Appeals, page 31. From Court of Civil Appeals, Second District, in a case on appeal from District Court of Johnson County. The opinion gives a full statement of the facts and issues submitted.

Writ of Error to Court of Civil Appeals, Third District, in a case on appeal from District Court of Tom Green County. Tried below before Hon. H. G. Robertson, Special District Judge. This suit was brought in the District Court of Tom Green County, Texas, on the 5th day of November, 1888, by appellant, against appellee, in the ordinary form of trespass to try title, to recover the four sections of land in controversy.

<p>Writ of Error to Court of Civil Appeals, Third District, in case on error from Taylor. Tried below before Hon. T. H. Conner.</p> <p>This was an action in trespass to try title by Thomas McCormick for section 3, block 18, Texas & Pacific Kailway surveys, against the Franco-Texan Land Company, a corporation. Joined as defendants were W. G. Martin and George Clayton, who were alleged to be bound to plaintiff upon a bond guaranteeing the title. The defendant corporation pleaded not guilty, and by cross-bill asked equitable relief, that the title under which the plaintiff claimed be annulled.</p> <p>October 18, 1889, judgment was rendered for the plaintiff for the land against the Franco-Texan Land Company, from which error was prosecuted.</p> <p>October 11, 1892, the judgment in the trial court was affirmed by the Court of Civil Appeals, Third District, and a motion for rehearing was overruled.</p> <p>Subsequently the said Franco-Texan Land Company applied to the Supreme Court for a writ of error, complaining:</p> <p>“1. This being an action of trespass to try title by McCormick, and the defendant the Franco-Texan Land Company having pleaded not guilty, the burden of proof was on plaintiff McCormick to establish his cause of action, and the said McCormick as a matter of law was bound to take notice of the invalidity of the deed from said K. W. Duke, as president of said company, to said W. G. Martin, the vendor of said McCormick; and that the Court of Civil Appeals, under authority of Fitzhugh et al. v. Franco-Texan Land Company, 81 Texas, 314, having virtually so held, that the said land company was not bound in law, as a matter of defense to the action of trespass to try title, to tender the purchase money it had received under said invalid sale by its president.</p> <p>“ 2. The said Court of Civil Appeals erred in holding in this cause that the case should be affirmed, because the plaintiff in error failed in its pleading over, asking cancellation of Crawford’s title, to tender the purchase money received by the Franco-Texan Land Company on the invalid sale by its president, Duke; but the said Court of Civil Appeals should have reversed and remanded the case to allow it to amend and to tender said purchase money, if it so wished, for this: That the District Court had, by its solemn judgment in this cause, ruled and held that the land company was not bound in this cause to tender the said purchase money, which judgment was and is unreversed and not appealed from; * * * it being inequitable, unjust, and contrary to law to defeat a right of recovery imperfectly stated, but capable of amendment, by holding it insufficient in the appellate court, when the pleading had been held sufficient in the trial court.”</p> <p>Writ of error was granted as prayed for.</p> <p>The opinion sufficiently states the matters discussed.</p>

This was an appeal from Smith. In the Court of Civil Appeals, First District, the judgment was affirmed-by a majority of the judges. Held: that the exemption from taxation made by said act was not personal to the International & Great Northern Railway Company, but applied only to the property mentioned in said act, and that as it was not shown that the money, or a part of it, was not earned by the operation of the line of railway constructed in accordance with the…

<p>Writ of Error Refused for want of Jurisdiction.—There is nothing in the application for writ of error to show that the action was brought to recover a sum beyond that of which a County Court would have had jurisdiction. The jurisdiction of this court does not attach unless such a fact existed, although the judgment may have been rendered in a District Court. This omission requires-that the application for writ of error be dismissed.</p>

<p>Practice—Absence of Assignment of Error.—Questions not presented by assignment of errors should not be considered on appeal by the Courts of Civil Appeals, and will not be considered by this court on application for writ of error.</p>

Writ of Error to Court of Civil Appeals for First District, in a case from Cherokee. Held: he having had a decree of foreclosure and sale of the land to secure payment of another purchase money note for same land, and which also had been transferred to him. The judgment below was in all things affirmed by the Court of Civil Appeals of the First District.

<p>Error to Court of Civil Appeals for Third District, in case on appeal from Travis County. Tried below before Hon. James H. Robertson.</p> <p>The opinion contains a full statement of the case.</p>

Tried below before Hon. James H. Robertson. The grounds of application are here given (after formal allegations): “ It is represented that the sole and only question before the court on appeal was the construction of said instrument, the appellants insisting that it created a trust in Bremond, which was by him executed, and that there was no disposition of the residue; and the trust lapsing, that the estate went to the heirs.

<p>1. Lien Fixed by Levy — Recorded Judgment—The clue record and indexing of a judgment will not affect a levy made under a valid judgment, the levy being followed by sale. Nor is the purchaser at said sale required to place his sheriff's deed upon record as against the rights of the original parties to the recorded judgment.</p> <p>2. Issuance of Executions — Presumption.—Two executions in same case were issued on the same day. one to the sheriff of the county where the judgment was rendered. This execution was returned the day issued. Held,, that it will he presumed that such return was made before the issuance of the other, which was directed to officers of another county, and under which sale was made.</p> <p>3. Innocent Purchaser—Fraud.—The issuance of executions subsequent to the one under which sale was made of the land in litigation, to other counties, although fraudulent in attempting to hinder and delay other creditors, would not affect the title of a purchaser under such second execution having no notice of the facts constituting the fraud.</p> <p>4. Release of Lien upon Personalty Discharging Surety. — The release of personal property levied upon, if made subsequent to a sheriff’s sale otherwise valid, can not affect the validity of a sale made before such release, when -attacked by a surety claiming such release to be a discharge against a levy upon and .sale of his own property.</p> <p>5. Levy and Sale of Lands of Surety. — If under executions against principal and surety the property of both be seized, the sale of that belonging to the surety without the sale of that belonging to the principal would not render the sale void.</p> <p>6. Fraudulent Mortgage.—The title of defendants not depending upon any rights acquired in the adjustment made in regard to the trust deed in the record, the fact that it was fraudulent could not change the result. That such mortgage was believed to be a valid lien upon land sold at execution sale affords a reason for the sale at a price otherwise inadequate.</p> <p>7. Diligence to Avoid Sale at Inadequate Price. — An execution debtor complaining of inadequacy in price at sale of his property should promptly act to avoid such sale against the necessary parties.</p> <p>8. Refusal of Writ of Error an Approval of the Judgment.— When an application for writ of error is refused, this is in effect a decision by this court that the decision of the Court of Civil Appeals is correct in its result.</p>

This was a suit brought in District Court of Smith County by T. M. Campbell, receiver, etc., of the International & Great Northern Railway Company, against Ed. B. Wiggins, tax collector, to enjoin the collection of state and county taxes upon certain money accruing from the operation of said railway, and deposited by the said receiver in the bank of Bonner & Bonner, at Tyler, Texas. It was claimed that said money or credits was exempt from taxation.

This case came before the Supreme Court on certificate, under section 35 of the act to organize the Courts of Civil Appeals, from the Court of Civil Appeals, Second District, in an appeal from the County Court of Grayson County. The said court certified certain questions as novel and important, arising upon the construction of certain instruments, copies of which accompanied the certificate.

This was an appeal from the District Court of Cooke County. Tried below before Hon. D. E. Barrett. The statement of the case and the findings of the Court of Civil Appeals are given in the opinion.

This was an original application to the Supreme Court, seeking to control the action of the Commissioner of the General Land Office. The facts are set out in the opinion of the court.

Writ of Error to Court of Civil Appeals for Second District, in a case from District Cpurt of Tarrant. Tried below before Hon. R. E. Beck-ham. This suit was brought on the 2d day of October, 1888, by Mrs. M. A. Tackaberry, against the City National Bank of Fort Worth, Texas, in trespass to try title for two lots and business house thereon, in the city of Fort Worth.

This is an application for writ of error to Court of Civil Appeals, Second District, in an appeal from Wilbarger County. The Court of Civil Appeals affirmed the judgment of the trial court on Februaiy 16, 1893. The appellants failed to file a motion for rehearing within fifteen days after the judgment of affirmance.

This was an appeal from the District Court of Eastland County, in which a judgment was rendered that the plaintiffs take half the land in controversy and that the intervenors take the remaining half. The plaintiffs appealed.

The judgment below was affirmed, and the Texas & Pacific Railway Company,' the appellant, filed application for writ of error. The application was held deficient in not having in the accompanying-transcript a certified copy of the conclusions of fact found by the Court of Civil Appeals. The applicant was given ten days in which to furnish the necessary copy. A perfected transcript was filed within the extension. The opinion sufficiently shows the application and transcript.

The plaintiffs obtained judgment in the District Court for damages ■against the Gulf, Colorado and Santa Fe Railway Company, and on appeal the judgment below was reversed and the cause remanded.

This is an application for writ of error to the Court of Civil Appeals, First District, in a case on appeal from the District Court of Galveston County. The litigation arose from a suit by the L. & H. Blum Company on a vendor’s lien note, executed by appellants, for the Carey White survey, supposed to contain 709 acres of land. The defense sought an abatement in the purchase money proportionate to an alleged conflict of the Carey White survey with an older and valid title.

<p>1. Parties in Action for Damages for Negligently Causing the Death of a Person:—It is not an open question in this court, that when the evidence develops the fact that the deceased (for causing whose death damages are sought) had other relatives who under the statute can share in the damages recovered for his death, the proceedings must be arrested until the pleadings are so amended that the suit can be conducted for the use of all of the beneficiaries.</p> <p>2. Want of Parties — Limitation. — In an action for damages for negligently causing the death of a person, it is no answer to an objection made for want of proper parties plaintiff, to reply that the claim of the unjoined beneficiaries is barred by the statute of limitations.</p> <p>3. Release by Unjoined Party Plaintiff.—A release by a necessary party plaintiff who is not joined can not be established by ex pai'te affidavits produced in answer to a motion for new trial. Such proof should be made during the progress of the trial, under the rules governing the introduction of other evidence, and subject to cross-examination.</p> <p>4. Ex parte Affidavits Resisting Motion for New Trial.—A party who undertakes to establish a fact by ex parte evidence, or to sustain a replication to a motion for a new trial by the introduction of new matter, must at his own peril make his case complete. The opposite party is under no obligations to make suggestions by interposing objections, but may remain passive until his adversary rests, and then rely upon any good objection to the case made against him.</p> <p>5. Effect of Release by Necessary Party Plaintiff.—In an action by the widow and child of a man alleged to have been killed by the negligence of a railway company, it appearing that the parents were living, the jury found damages, apportioning them between the widow and child. It will not be assumed that the same amount of damages would have been given had the release of the parents been established before the verdict.</p>

This is a litigation questioning the legality of the Austin city water and light enterprise, involving the construction of a dam across the Colorado River and other large expenditures by the city,… Held: “ The power of taxation is lodged in the city for public purposes. It has no authority to engage in business enterprises that are private in character, and not for a public use permitted by its charter.

This is an application for writ of error to the Court of Civil Appeals, First District, in a case on appeal from the District Court of Wharton County. The opinion gives a sufficient statement.

<p>Promissory Note—Foreign Coins.—A promissory note may be payable in any currency. A promise to pay in Mexican silver dollars is negotiable; the exchange into current coin is upon proof of their relative values.</p>

<p>Question certified by the Court of Civil Appeals, Second District, in a case on appeal from Cooke County.</p>

<p>1. Penalty for Railway Company Refusing to Carry Freight — Repeal.—As we construe article 279 and amended article 4227, Revised Statutes, each prescribes a penalty for the same act—the former, however, being applicable to all carriers, and the latter to railway companies only. We are of opinion that the intention of the Legislature, in the amended article 4227, was to make a distinction as to railway companies, and to affix a punishment for their misconduct in the particulars prescribed, less arbitrary in its nature and better adjusted to the wrong sought to be repressed. It seems to us that the latter statute (article 4227 amended, Acts Twentieth Legislature, page 116) was intended to cover the whole field as to railway companies, and to lay down the only rule for a recovery against them for the particular wrongs it points out.</p> <p>2. Repealed, Revised Statutes, Article 279.—Article 279, Revised Statutes, prescribing a penalty against carriers for not receiving, etc., freight, was repealed as to railways by the Act of April 2, 1887 (Acts Twentieth Legislature, page 116), amending article 4227.</p>

This is a question certified by the Court of Civil Appeals, Second District, in a case appealed from Wise County. The cause was pending in the Supreme Court when the law creating the Courts of Civil Appeals went into effect. By the former court it was transferred to the said Court of Civil Appeals, under section 4, article 1060, Acts 1892, page 24.

This is a case certified by the Court of Civil Appeals, Second District, to the Supreme Court, upon dissent by Justice Stephens to the decision of the majority of the members of the court.

<p>Tins is a question certified to this court from the Court of Civil Appeals, Third District, in a case on appeal from Tom Green County.</p>

This case was appealed from the District Court of Parker County. In the Court of Civil Appeals, Second District, Associate Justice Stephens was disqualified. The judgment below was reversed; a motion for rehearing was filed. Pending such motion the question of sufficiency of the petition was certified to the Supreme Court.

2. Findings of Fact by Court of Civil Appeals.—The refusal to dismiss the writ of error for want of diligence in obtaining service… Held: “ that plaintiff in error had not been guilty of any such inexcusable neglect to prosecute its writ of error as would justify that court in refusing it a hearing upon the record, and that the rights of defendant in error would not be prejudiced by the overruling of the motion to dismiss.” On the merits the judgment below was reversed…

Tried below before Hon. W. M. Key. The opinion gives a statement. “ Jerry Lordan.'' In this case the message is: “F. S. Faust.” Ferdinand’s father was C. S. Kirkpatrick’s wife’s father. N. B. Gorsuch was W. S. Carter’s wife’s father. In both cases the company had no notice except terms of the message.

<p>1. Irrigation Statute — Arid Portion of Texas. — The Act of 1SS9 (General Laws, page 100), relating to irrigation, is not inoperative because it does not declare what part of the territory of the State should be subject to its operation .'</p> <p>2. Same —Arid Portion of the State. — Under said statute, the “ arid portion of the State," to which the act applied, is defined to be “ lands in that part of the State where rainfall was insufficient for agricultural purposes, and irrigation therefore necessary." This as to any given tract of land is a question of fact, to be determined as any other fact; nor have courts judicial knowledge as to such facts.</p> <p>3. Injunction — Irrigation — Condemnation Proceedings.—Injunction was sought against an irrigation ditch company to restrain it from taking lands of the plaintiffs for site for dam and for ditches. It appeared that condemnation proceedings Avere pending under the statute. There was no allegation that the land was not within the arid portion of the State. Held, error to grant a perpetual injunction.</p> <p>4. Injunction Proceedings — Burden of Proof. — The plaintiffs, in seeking a perpetual injunction, had (he burden of showing facts authorizing its issuance. Failure to allege that the land was not arid was fundamental defect.</p> <p>ON MOTION FOR REHEARING.</p> <p>5. Effect of Act of March 19,1889 — Granting Water Rights.— Section 2 of the Act of 1889 (General Laws, page 100) can not operate, and probably was not intended to operate, on the rights of riparian owners existing when the law was passed, but was intended to operate only on sneli interests as were in the State bjr reason of its ownership of lands bordering on rivers or natural streams.</p> <p>6. Right to Condemn for Ditch Companies.—The Act of March 19, 1889, gives to such corporations the right to condemn any property necessary for the uses and purposes of the enterprise in the business for which the corporation was created, if such property will pass or maybe included under the term “ lands.”</p> <p>7. Lands.—Under the power to condemn lands would bo included the right to take water, but the water should be paid for, regardless of whether taken above or upon the land of a riparian owner whose right to have the water flow in its accustomed course and quantity is invaded.</p>

<p>1. Witness—Opinion Testimony.—On trial of a suit for personal injuries against a railway company, the plaintiff, testifying in his own behalf, was asked: “ State if you can approximate what expenses you have been at by. reason of the accident and injuries received?” The question was objected to, but the objection was overruled, and witness answered, “About $750 or $800.” Held, error. The plaintiff must have known the items of expense and should have given them.</p> <p>2. Remittitur as to Part of Judgment.—In Chadwick v. Meredith, 40 Texas, 380, it is held, that a remittitur comes too. late after the court has acted upon the record, the judgment reversed, and the cause ordered to be remanded. This is the general rule, to which are cases apparently exceptions but not coming within the rule. In Kailway v. Trawiek, 80 Texas, 275, the verdict found two distinct items; a remittitur as to one item was permitted, and the judgment was affirmed as to the item about which there was no error. In Railway v. Johnson, 76 Texas, 421, and in other like cases where exemplary damages were found distinct from actual, the appellees were permitted to remit as to exemplary damages, upon which the judgments were affirmed as to actual damages about which there was no error.</p> <p>3. Same —Case in Judgment.—Verdict for $7500 for personal injuries. On appeal the judgment below was reversed on the ground of the improper admission of the opinion of plaintiff as to his expenses being $750 or $800. In motion for rehearing in Court of Civil Appeals the appellee offered to remit $800, and asked judgment for the balance. Held, that as the testimony to the amount of expenses occasioned by the injuries may have impressed the jury as to the extent of the injuries, and thus have increased the general verdict, such remittitur could not be allowed to cure the error of admitting the illegal testimony.</p> <p>4. Opinion of Witness as to Speed of Railway Train.—A witness on cross-examination (testimony by depositions) was asked: “If in answer to any of the direct interrogatories you have stated anything as to the speed the train was running at the time of the wreck, state how you know, and state particularly what attention you paid to the speed of the train.” On motion to suppress, the answer of the witness, that “ all were nervous, apprehensive, and the effects and sensations were those of very great speed, and what seemed to me reckless speed,” held responsive to the interrogatory, and proper. The witness had stated in answer to direct interrogatories, that “the train was running at forty or fifty miles an hour.”</p> <p>5. Reading Law Books to Jury.—In damage suit against a railway company for personal injuries, counsel for the plaintiff, in his opening address to the jury, stated to the jury that he “ would read to them portions of the opinions of the Supreme Court of Texas, for the purpose of showing them that large verdicts had been rendered against railway companies for personal injuries.” To this statement, and the proposed reading, the defendant objected, and the objection was sustained. Subsequently counsel claimed the right and was permitted to read as part of his argument two opinions of the Supreme Court in cases where-$10,000 damages for personal injuries had been allowed, and the judgments affirmed. Objection was made. Held. that the action of the trial court in allowing counsel to read the said opinions as part of his argument was reverisble error.</p>

This is on certificate of disagreement from the Court of Civil Appeals, Third District, in a case on appeal from El Paso County. The opinion gives the issues submitted and the facts.

<p>On certificate of Court of Civil Appeals, Second District, in a case from the County Court of Kaufman County.</p> <p>The questions certified and facts discussed are given in the opinion.</p>

<p>Error to Court of Civil Appeals, Third District, in a case from Mc-Lennan County.</p> <p>The complaint by the plaintiffs in error is: “ Because the facts found by the court below, and adopted by the Court of Civil Appeals, do not show any such physical preparation or act of any kind as is necessary to fix a homestead as against the plaintiffs, who furnished the lumber and material for the erection of the building thereon. We think it too evident for discussion, that the declaration at or subsequent to the time of the purchase, of an intention to make the property a homestead, it having no improvements upon it of any kind, there being no physical preparation to make any improvements on it, can not of itself make a homestead exempt from the claim of the material men. The only other act done was the mere making of a contract with the contractor to erect the building; because it can not be considered material that a part of the purchase money for the lumber was paid at the time of the contract for the lumber. If the mere making of a contract with a third person to erect improvements on land, coupled with a declaration of the intention to make it a homestead, is sufficient to make it such as against creditors or lien holders, it is easy to be conceived that by making the contract to be performed at some long but definite time in the future, a debtor could indefinitely postpone his creditors, and prevent their appropriating property to the payment of their debts, upon the plea of making it his homestead, and could, when his convenience was promoted and after such hindrance of creditors, abandon his intention. It seems that this consequence could not be averted unless the courts are prepared to determine a length of time within which such contract could be completed, which it is not probable the courts would undertake to do. We submit that there is no reported case in which any such act, or in which any similar act, has been held sufficient to appropriate the property to homestead uses. * '* *</p> <p>The facts sufficiently appear in the opinion.</p>