Volume 90 — Texas Reports

The action was trespass to try title, brought by Sheldon against Milmo and others in District Court of Webb County, to recover a tract of land there situated. Plaintiff claimed under the Spanish grant set out in the opinion of the court; defendants under patents from the State of Texas.

<p>Cities—Taxation—Charter Construed.</p> <p>Under the provisions of the charter of the City of Denison authorizing, in addition to the one and one-half per cent tax which the council is empowered to levy, a tax of one per cent, to be levied on a two-thirds vote of all the tax paying voters of the city, the city council has no power to submit to the voters a proposition to levy a tax for the payment of any existing indebtedness. The charter authorizes the submission to vote only of the question of levying such tax to meet future indebtedness. (Pp. 23 to 25.)</p>

The opinion states the case. Plaintiff had judgment in the trial court. Upon the point involved in this opinion the appellate court first reversed the case, holding the evidence insufficient to justify a submission of the question, but upon motion for rehearing by appellee it was concluded that the evidence was sufficient for that purpose and the judgment was affirmed, and a motion of appellant for rehearing afterwardsoverruled.

' The suit was trespass to try title in which defendants recovered judgmeat in the trial court. On appeal this judgment was reversed and remanded. (35 S. W. Rep., 312.) Appellees sought writ of error on the ground: 1.

<p>Error to Court of Civil Appeals, Third District, in an appeal from Hamilton County.</p> <p>The opinion states the facts.</p>

<p>Error to Court of Civil Appeals for Third District, in an appeal from Dallas County.</p> <p>The opinion states the facts.</p>

<p>Ebeob to Court of Civil Appeals for Third District, in an appeal from Travis County.</p> <p>The opinion states the facts.</p>

<p>Error to Court of Civil Appeals for First District, in an appeal from Aransas County. The suit was brought by Lillian Vineyard to recover from O’Connor certain lands which she claimed by conveyance from S. C. Vineyard to S. H. Vineyard (the deed copied in the opinion), and by the latter to plaintiff. Defendant had judgment and plaintiff appealed and then obtained writ of error from a judgment affirming that of the District Court. The opinion states the facts.</p>

Mollie Edwards, a minor, by next friend, sued the railway company for personal injuries and had judgment for $1000, which on appeal was affirmed by the Court of Civil Appeals, and thereupon appellant obtained this writ of error:

<p>1. Practice in Supreme Court—Mandamus.</p> <p>The Supreme Court will examine a petition for writ of mandamus presented to it and unless probable cause appear from the allegations of the petition will decline to order citation and will dismiss the case. (P. 73.)</p> <p>2. Res Adjudicata—'Verdict Without Judgment.</p> <p>A verdict until set aside is conclusive of the issues determined by it and may be pleaded in bar of another action though judgment has not been entered thereon. (Pp. 74, 75.)</p> <p>3. Same—Mandamus—Fact Case.</p> <p>In a suit upon two causes of action verdict was rendered for plaintiff on one and for defendant on the other, whereupon the court set aside the verdict for plaintiff but permitted the one for defendant to stand. The Appellate Court, holding that the entire judgment was vacated thereby, awarded a writ of mandamus commanding the District Court to re-try both issues. Plaintiff dismissed his suit in the lower court and thereupon defendant applied to the Supreme Court for a writ of mandamus requiring the District judge to enter judgment on the verdict formerly recovered in his favor in order that it might be available as a defense in case of another suit on the same cause of action. Held, that the writ of mandamus should be refused because if the verdict for defendant was not vacated by the action of the trial court in setting aside the part of the verdict which was for plaintiff, which was not decided, still no necessity for the writ was shown since the verdict without entry of judgment thereon could be pleaded as a former adjudication. (Pp. 74, 75.)</p>

The application for writ of error showed that plaintiff in error in a suit against Steed Bros, had seized cattle, of the value of $750, by writ of attachment. Defendant in error claimed the cattle, gave bond and took possession, and on trial of the right of property, in the District Court of Clay County, judgment was rendered for claimant.

<p>1. Jurisdiction of Supreme Court—Conflicting Decisions.</p> <p>In order to give the Supreme Court jurisdiction over a case reversed and remanded on the ground that two Courts of Civil Appeals have held differently on the same question of law, that question must be the same as that presented in the case in which the writ of error is sought. (P. 78.)</p> <p>2. Same—Gases Distinguished.</p> <p>Refusing a writ of error, sought on the ground of conflict in decisions, the court distinguish this case from St. Louis Cattle Co. v. Vaught, 1 Texas Civ. App., 388, and Abbey v. Shiner, 5 Texas Civ. App., 287. Those cases, which were in conflict, involved liability of one enclosing his own land to pay rent to another whose land was entirely surrounded by it; while in the present case the land of plaintiff so enclosed was adjacent to but not surrounded by defendant’s. (P. 77.)</p>

The suits were brought by Roberts, Willis & Taylor Co. and Cullers & Henry against the insurance companies to recover on two policies of fire insurance. Defendants had judgment in the District Court, and the judgment being reversed on appeal, applied for writ of error,

<p>Street Improvement—Authority of City Council of Waco—Resolution or Ordinance.</p> <p>Refusing an application for writ of error, on the ground that the trial and appellate courts did not err in refusing to enforce against abutting lots a lien for the expense of street paving, the court places its ruling upon the ground that such improvement must be first so ordered by ordinance or resolution of the city council, as required by its charter; but dissents from the proposition that such action by the council must be by ordinance and not by resolution. (Pp. 80, 81.)</p>

<p>Application for writ of error to the Court of Civil Appeals for Fourth District, in an appeal from Karnes County.</p>

The suit was originally brought by Choate in the District Court to recover of the railway company damages for personal injuries received by him while a passenger on one of its trains, through being thrown from the platform while passing from one car to another by a sudden jerk of the train. Plaintiff recovered damages and on appeal the judgment was reversed by the Court of Civil Appeals, which held that the. evidence required a peremptory instruction to find for defendant.

<p>1. Constitutional Law—Subject of Act Expressed in Title—Sale of Liquor.</p> <p>The language in the title to the Act of 23d Legislature, chapter 121, “to regulate the sale of * * * liquors’’ sufficiently expresses the subject embraced in section 9 of that act, requiring the execution of a bond by liquor dealers conditioned on conducting their business as there prescribed, to comply with the requirements of section 35, article 3, of the Constitution of the State. (Pp. 91, 92.)</p> <p>S. Liquor Dealer’s Bond—Party Aggrieved.</p> <p>The description of the party entitled to sue for the penalty provided for violation of the conditions of the bond of a liquor dealer as “any person or persons aggrieved” (section 9, chapter 121, Acts 23d Leg., p. 177) is not void for uncertainty. A mother, the only living parent, may maintain suit on the bond given under such act for selling liquor to her minor son. (Pp. 92, 93.)</p> <p>3. Same.</p> <p>In a legal sense, a person is aggrieved by an act when a legal right is invaded thereby. It is the duty of a parent to look after the moral training ■of minor children and his legal right to keep them away from temptation. It seems however that with reference to this particular infraction of the bond no one would have a right of action except the parent or some one standing in loco parentis. (P. 93.)</p>

The action was trespass to try title brought by Culmells against Barroum and others, with plea of not guilty, and tried before the District Judge, who rendered judgment for defendants. On their appeal from this judgment, the Court of Civil Appeals reversed it and rendered judgment for plaintiffs. Defendants then applied for a writ of error, which was refused June 9, 1896.

The suit was trespass to try title brought by Sarah E. Searcy, only child and heir of J. J. Crowson, former owner of the land, against Geo. W. Grant, who claimed it by mesne conveyances under Nancy Denman, to whom it had been conveyed by Crowson’s administrator. The District Court gave judgment for plaintiff, but on appeal this was reversed and judgment rendered for defendant, which was the judgment brought up by this writ of error.

<p>1. Declarations Affecting Belief or Intention—Right to Arrest for Theft.</p> <p>In a suit for injuries by the death of one whom defendants claimed to have killed in self-defense while attempting his arrest under article 364, Code- Criminal Procedure, evidence that another person when arrested a few minutes before had confessed assisting deceased to kill and conceal a stolen cow on the previous night was admissible to show the essential fact that defendants had reasonable ground to suppose the cow to have been stolen by deceased. (Pp. 107, 108.)</p> <p>2. Cumulative Proof.</p> <p>Defendants were entitled to the evidence for that purpose though they had already introduced evidence that they had information on the subject from another person on the night before. (P. 108.)</p> <p>3. Same—Self Defense—Declaration of Defendant Affecting His Interpretatation of Conduct of Deceased.</p> <p>Such evidence was also admissible as tending to show, as viewed from the standpoint of defendants, the purpose of deceased in his subsequent acts, claimed by them to have put them in danger of life and to have justified them in the killing, and to show whether, and when, it reasonably appeared to the posse that they or either of them were in danger of life or serious bodily injury. (Pp. 108, 109.)</p> <p>4_ Same—Error Not Harmless.</p> <p>The fact that the testimony of plaintiff, the wife of deceased, upon which the verdict seems to be based, directly contradicted that of defendants as to threatening and violent acts by deceased, did not render such error harmless. The jury were not obliged to accept or- reject either account in toto and may have proceeded upon a belief as to what the real facts were which would render the rejected evidence material. (P. 109.)</p> <p>5. Same.</p> <p>Neither is such error rendered harmless by the subsequent admission of substantially the same evidence as impeaching the person by whom the declarations were claimed to have been made and who, as a witness for plaintiff, had denied making them, where the jury were instructed not to consider such evidence for any purpose except to impeach the credibility of the witness. (Pp. 109, 110.)</p>

<p>Cebtieied Question from Court of Civil Appeals for Second District, in an appeal from County Court of Archer County.</p>

Questions Certified from the Court of Civil Appeals, Second District, in an appeal from County Court of Wichita County. The suit was brought by Mrs. Collier to recover damages for sale of her property under a judgment previously recovered against her by the defendants Patton and Wellborne, who, on her recovery in this action, appealed. The opinion states the questions certified.

Meade, who had been impleaded as warrantor in several suits of trespass to try title, appealed from judgments therein by which plaintiffs recovered from defendants the land in controversy and defendants had .judgments against him for their several amounts of purchase money, and the judgments being affirmed, he applied for and obtained writs of ■error.

Suit by A. R. Smith against railway company to recover damages for death of her son. Plaintiff had verdict and judgment for $3000, and the company appealing, the case was reversed and remanded. Plaintiff’s petition for writ of error alleged that the ruling settled the case, for there was no further evidence that she could produce. The petition being dismissed for want of jurisdiction, she filed this motion for a rehearing thereon.

The suit was brought by Jesse Douglass, a minor, by next friend, to recover from the railway company damages for personal injuries. In a former trial the District Court sustained a demurrer to plaintiff’s petition, and on appeal the judgment was reversed. Trial then resulted in a verdict and judgment for $4000 in plaintiff’s favor, and, on defendant’s appeal, this was reversed by the Court of Civil Appeals.

<p>Negotiable Instrument—Assignment—Indorsement.</p> <p>By article 307, Revised Statutes, any person to whom a negotiable instrument has been assigned, whether the form of the transfer is written or verbal, is protected against a plea of failure of consideration, if an innocent holder, for value, before maturity: whether or not words written on the note by the payee and guaranteeing payment constitute an indorsement under the law merchant is not material.</p>

’ Error to Court of Civil Appeals for Fourth District in an appeal from. I Dallas County. I The suit was brought by Mays and wife against Sanders and Bowser to recover on the notes mentioned in the opinion and foreclose a lien therefor. Kearby and McCoy intervened, claiming an interest in the notes.

The Educational Association sued Kilgore and the sureties on his bond, given to secure compliance with his contract to erect a building for them, for damages from his failure to complete the contract, and recovered a judgment for four hundred dollars, which, on appeal by defendants, was affirmed, whereupon appellants procured writ of error.

1. Trial by Court—Presumption in Absence of Findings of Fact. Ebbob to Court of Civil Appeals, Fourth District, in an appeal from Bexar County. Reed brought the sui-t against Brewer, who plead the illegality of the transaction and had judgment on a trial before the court. Plaintiff appealed and, on affirmance of the judgment, obtained a writ of error.

The suit was brought by Mary E. Bell and her husband to recover on a note and to foreclose a mortgage on personal property in Wichita County, Texas, executed by the McLeod Artesian Well Co. and against Kent, who had bought the property at an attachment sale, and by amendment against Fowler, who had bought it of Kent and converted it.

Motion to permit plaintiffs in error to prosecute writ without bond. The guardian ad litem for minor defendants in the trial court prosecuted, without giving bond, a writ of error from a judgment in favor of plaintiff. The judgment being affirmed, the guardian obtained writ of error from the Supreme Court, who in granting the writ, required him to file writ of error bond.

Original Proceeding by petition by Thomson to Supreme Court for writ of mandamus to Baker, the commissioner of the General Land Office, to compel him to issue certain land certificates. The facts appear in the opinion.

I The suit was brought by McIntyre to recover on a fire insurance policy . I for $2000 on his house. He had judgment for the Ml amount of the- I policy; defendant appealed, and on affirmance by the Court of Civil Appeals obtained writ of error.

<p>Questions Certified from Court of Civil Appeals, First District, on writ of error to Anderson County.</p> <p>The questions certified are shown in the opinion.</p>

<p>Error to Court of Civil Appeals, Second District, in an appeal from Eastland County.</p> <p>The proceeding was a trial of right of property under the statute. Jones held a mortgage on a tract of land, including certain gin machinery fixtures thereon, which mortgage he foreclosed and took out order of sale. Bull, who claimed to own the machinery under a levy and sale of it as personal property on a judgment against the mortgagor, which proceedings, however, had left it still attached to the land, filed a claimant’s bond, under which he took possession of and converted the machinery. A recovery by claimant Bull was reversed by the Supreme Court. (Jones v. Bull, 85 Texas, 136.) A recovery by Jones on a second trial was reversed on appeal by the Court of Civil Appeals. (Bull v. Jones, 9 Texas Civ. App., 346.) The third trial resulted in a recovery by Bull, from which Jones appealed, and, on affirmance of the judgment (29 S. W. Rep., 804) obtained writ of error. The facts are stated in the opinion.</p>

The suit was by the J. B. Watkins Mortgage Co. for foreclosure of the lien of a deed of trust given by B. F. Blasingame upon 190 acres of land in Ellis County.

Certificate of dissent, from Court of Civil Appeals, Fourth District, in an appeal from the District Court of Bexar County. Elmendorf et al. sued Classen and recovered judgment in the District Court which, on defendant’s appeal, was reversed upon plaintiff’s failure to file remittitur in accordance with the opinion of the majority of the court, Fly, J., dissenting.

Petition for writ of mandamus, brought by the County Treasurer of Travis County against the Comptroller, to compel the issuance of a wacrant for school funds set apart to the county.

Keller sued the railway company to recover the amount of certain claims allowed in favor of interveners in a suit against the old company, in which its property had been placed in the hands of a receiver, sold, and a reorganization effected, the suit being against the reorganized company. Plaintiff recovered judgment for the full amount of his claims. Defendant appealed, and, the judgment being affirmed, obtained a writ of error.

<p>Error to Court of Civil Appeals, Second District, in an appeal from Taylor County.</p> <p>Bigham sued the railway company, and obtained judgment in the trial ' court for both injury to his person and damages to his cattle. Defendant appealed, and on affirmance by the Court of Civil Appeals obtained writ of error.</p>

Woods et al. commenced the suit and recovered judgment below, from which the defendants Hull et al. appealed and had judgment reversed and rendered in their favor. Appellees then made petition for writ of error.

<p>Railroads—Removal of Depot—Action for Damages.</p> <p>The prohibition against change of railway depot-grounds, when once established, contained in art. 4492, Rev. Stats., was to promote the interest of the public, and a violation of the prohibition does not give a right of action against the railway company in favor of an individual, who has bought property and made investments on the faith of the first location, to recover for depreciation in the value of such investments, caused by the removal of the depot.</p>

<p>Error to Court of Civil Appeals for Fourth District, in an appeal' from Gonzales County.</p> <p>The suit was brought by Thomas Lockridge, who claimed the land in-controversy through his ancestor, Jno. T. Lockridge, by operation of the' conditional limitation of the estate of B. B. Lockridge contained in the deed set forth in the opinion, by which it was claimed his title vested on. his death in Jno. T. Lockridge. Defendants claimed under an administrator’s deed, by which the land was sold as part of the estate of E. B. Lockridge. Plaintiff had judgment in the trial court. On appeal it was reversed and rendered for defendants, and appellee obtained writ of error.</p>

Ebbob to Court of Civil Appeals for Second District, in a case on writ of error from Tarrant County. The suit was brought by Rowena M. Mason against the surviving husband and minor children of Hora Daniels, under whom, through mesne conveyances, plaintiff claimed title to the land in controversy, and the suit was to remove cloud from title. Defendants claimed title in themselves and also sought to have the cloud on their title removed.

<p>1. Estates—Liens Against Realty—How Paid..</p> <p>As against the administrator and the widow of deceased (to whom his personal estate passed), the heirs of a half interest in his realty (his father, brothers and sisters) were entitled to have liens existing against the land discharged out of the personalty, where sufficient funds therefor were in the administrator’s hands. There is nothing in our statutes to the contrary, and this rule is in accordance with Revised Statutes, article 3129, which provides that executors and administrators shall in such case be governed by the common law. (Pp. 248 to 254.)</p> <p>2. Same.</p> <p>The rule requiring liens to be settled out of the personalty, applies where the funds in question were the proceeds of decedent’s interest in cattle held in the Indian Territory at. the time of his death, and sold by his surviving partner, who, after paying the partnership debts, brought the money to Texas, and placed it in the hands of the administrator. (Pp. 253, 254.)</p>

<p>Certificate of dissent from Court of Civil Appeals for Second District, in an appeal from Clay County.</p> <p>The certificate in question was to the correctness of the order, which is copied in the opinion, and was accompanied by certified copies of the majority and of the dissenting opinions.</p>

<p>Certificate of dissent from Court of Civil Appeals for Second District, in an appeal from Tarrant County. ■</p>

The suit was brought by Grant Green, who recovered a judgment against the railway company, from which the latter appealed, and the judgment being affirmed, the company obtained writ of error.

<p>Error to Court of Civil Appeals, Fifth District, in an appeal from Harrison County.</p> <p>McCoy was plaintiff and recovered in the trial court. Defendant company appealed and, on affirmance, obtained writ of error.</p>

Suit was brought by Patrick against Smith & Co. and. plaintiff obtained judgment, which, upon defendant’s appeal, the Court of Civil Appeals reversed and rendered for appellant. Appellee then obtained writ of error.

<p>Application for writ of error to the Court of Civil Appeals in an appeal from Morris County.</p>

<p>Railway Crossing—Obstructing "View.</p> <p>A railway company has a right, as a general rule, to erect the structures necessary for the prosecution of its business, and to leave standing cars upon its side track near a street or road crossing, but an obstruction of the view of a crossing by such means may constitute negligence; whether it does so or not, depends upon circumstances, and is a question of fact for the jury.</p>

Ebbob to Court of Civil Appeals for Fourth District, in an appeal from Tarrant County. The suit was brought by the Texas Brewing Company against Norwood &' Co. as principals, and B. B. and Ward Templeman as their sureties. Plaintiff recovered judgment, and the sureties only appealed. The judgment was reversed by the Court of Civil Appeals, and plaintiff obtained a writ of error upon a petition showing that the ruling practically settled the case

The application was by Robson and Sawyers to obtain a writ of error-to revise a decision affirming a judgment of the District Court perpetuating an order enjoining applicants from reopening a highway over plaintiffs’ land, which had been closed for two years under an order of the Commissioners Court; which order plaintiffs claimed discontinued the road, but defendants, the road-overseers, attacked as invalid.

<p>Question certified from Court of Civil Appeals for the First District, in an appeal from Harris County.</p>

Petition for writ of error to Court of Civil Appeals, Third District, in an appeal from Morris County. Conley brought the suit against the Railway Company and recovered judgment for penalties, aggregating $300, from which defendant appealed. The Court of Civil Appeals reversed the judgment and rendered it in favor of appellant. The appellee, Conley, thereupon applied for a writ of error.

The suit was brought by the Pabst Brewing Company against Kingsbury, and other defendants who were sureties to guaranty the performance of his contract with the company. Plaintiff recovered judgment. The sureties only appealed, and on affirmance of the judgment, obtained writ of error.

Petition for writ of error to Court of Civil Appeals, Second District, m an appeal from Tarrant County. Action by Johnson against the railway company, to recover for personal injuries, received by him while in defendant’s service as a conductor, in a collision with a train following bis own, caused by the negligence of the conductor of such following train.

Petition for writ of error to the Court of Civil Appeals, Fifth District, in an appeal from Lamar County. McDonald was plaintiff in trial court, and appealed from a judgment for defendants, which was affirmed by the Appellate Court. He then applied for writ of error.

The trial court instructed a verdict for defendant, and on plaintiff’s-appeal it was affirmed and she obtained a writ of error.

The suit was brought by Johnson, and the trial court rendered judgment for the defendant. Plaintiff thereupon brought it, by writ of error, before the Court of Civil Appeals, where the judgment was affirmed. His application for writ of error to the Supreme Court ‘was first dismissed—afterwards, on motion for rehearing, granted.

Defendants in error instituted the proceeding by motion in the District Court, in the probate proceedings therein pending. Plaintiffs in error appealed from a judgment holding the fund subject to the claims of creditors, and the judgment was affirmed. The following are extracts from the opinion of the Court of Civil Appeals, by TABLET OH, Chief Justice. “2.

<p>Questions Certified from the Court of Civil Appeals, Third District, in an appeal from Clay County.</p>

<p>Questions Certified from Court of Civil Appeals, Third District, in an appeal from Travis County.</p>

<p>Railroad—Condemnation of Highway Across—Damages.</p> <p>Article 4435 Rev. Stats., which imposes upon railway companies the duty of constructing the crossings, etc., of public roads, applies in those cases - where such roads are laid out by the county subsequently to the building of the railroad, as well as to those existing before; and the expenses of grading such crossing and putting in cattle guards, drain pipes, sign boards, whistling posts, and crossing planks, form no part of the damages which the railway company may recover, on condemnation by the county of a road crossing over its right of way. (P. 357.)</p>

Mustain, as executor of Waters, .brought the suit and recovered judgment on the notes sued on, but was denied foreclosure of his lien. He appealed, and on the affirmance of the judgment by the Court of Civil Appeals obtained writ of error.

<p>1. Negligence—Proximate and. Remote Cause.</p> <p>Where, in a suit to recover for injuries received by a railway passenger in leaving the train, the issues presented by the pleading and evidence were: (1) were the servants of the company negligent in putting the train in motion while plaintiff was in the act of dismounting? (2) was the plaintiff guilty of negligence in attempting to alight after the train was set in motion? plaintiff, if negligent, directly contributed to his injury; and it was error to charge that plaintiff’s negligence, in thus leaving the car, must have proximately contributed to his injury in order that it should prevent a recovery. (Pp. 368 to 370.)</p> <p>2. Injury to Passenger Leaving Train—Charges.</p> <p>See charges, given in case of injury to passenger leaving train, held to properly present the issues of defendant’s negligence and plaintiff’s contributory negligence, and charges requested on such issues held properly refused. (P. 371.)</p> <p>3. Evidence—Habit or Disposition, to Corroborate Declarations.</p> <p>Evidence of plaintiff’s disposition to brag of his physical strength was not admissible to corroborate evidence of declarations by him as to his strength after receiving alleged injuries. (P. 371.)</p>

<p>1. Negligence—Proximate Cause—Intervening Act Under Impulse of Terror</p> <p>Where a person, by defendant’s negligence, is so terrorized as to impel him to do an act resulting in injury to plaintiff, his act is regarded in law as would be the movements of an inanimate object set in motion by such negligence. (F. 375.)</p> <p>2. Same—Fact Case.</p> <p>By the negligence of a railway company a train was brought into a situation of such apparent danger as to cause the fireman, impelled by the instinct of self preservation, to leap from the engine, thereby falling upon and injuring plaintiff, a section hand properly engaged in his duties by the side of the track, the company was liable for such result of its negligence, and a demurrer to a petition setting up such facts was improperly sustained. (Pp. 373 to 376.)</p>

<p>Error to Court of Civil Appeals, Fourth District, on writ of error from Dallas County.</p>

<p>Questions Certified from the Court of Civil Appeals, Second District, in an appeal from County Court of Taylor County. The opinion shows the question certified.</p>

<p>1. Public School Teacher—Discharge.</p> <p>A teacher of a public school, discharged without cause, before the expiration of his terra of employment, and who has taken no steps to reinstate himself as a teacher, cannot maintain a suit for damages on his contract to teach. Under the act of 1893 (Rev. Stats., art. 3959a) he has a right of appeal from the action discharging him, which must be taken with reasonable promptness or such discharge becomes final, and the contract at an end. Unless reinstated on appeal, he had no cause of action against the trustees. (P. 385.)</p> <p>2. Same—Res Judicata—Mandamus.</p> <p>When such teacher, though he has not appealed or been reinstated, has recovered a judgment in Justice’s Court, for damages for his wrongful discharge by the trustees, and demanded a warrant therefor, he is entitled to a writ of mandamus from the District Court to compel the trustees to issue a warrant on the treasurer for the amount,—there being sufficient funds to the credit of the district; the duty is ministerial, and the justice’s judgment conclusive of his right to payment. (Pp. 385, 386.)</p>

<p>1. Damages—Death of Wife—Re-marriage.</p> <p>In a suit for damages by causing death of plaintiff’s wife, the fact that her place had been supplied by a subsequent marriage does not mitigate the damages, and evidence of such fact and of the character of the second wife, and her capacity to supply the place of the former, is not admissible. (Railway v. Long, 87 Texas, 148, limited.) (Pp. 390, 391.)</p> <p>2. Same—Death of Mother—Evidence of Financial Condition.</p> <p>In an action for damages from the death of plaintiff's mother, evidence of the financial condition of the head of the family at the time is admissible to show the extent of the pecuniary injury sustained by the daughter. The nurture and intellectual, moral and physical training received from a mother varies with circumstances, and of such circumstances it is proper to inform the jury. (Pp. 391, 392.)</p>

<p>Questions Certified from Court of Civil Appeals, First District, in an appeal from Polk County.</p>

The suit was brought by the city of Galveston to forfeit the license of the company to occupy certain streets and to have its track removed therefrom. Plaintiff obtained the relief sought and on defendant's appeal the judgment was affirmed. The company thereupon obtained writ of error.

<p>1. Will—Independent Executors—Partition.</p> <p>A will, after designating the devisees and their respective portions, provided for partition, which the executors were empowered to have made without awaiting the twelve months after probate, and that no further action be had in the courts than the probate, inventory and list of claims, “and the partition as herein provided.” Held, that the will contemplated that the partition should be made by the Probate Court, and did not provide the means for making the partition contemplated by Revised Statutes, article 1948, and the executors had a right to apply to the probate court for partition. (Pp. 416, 417.)</p> <p>2. Same—Settlement of Accounts.</p> <p>As a necessary incident to the partition, the Probate Court had the power in such case to settle the accounts of the executors. (P. 417.)</p>

<p>1. Evidence—Suits By or Against Executors, Etc.—Warrantor as Witness.</p> <p>In a suit for land, to which an executrix is a party, a warrantor of defendant, who has not been notified to defend the suit and, whom defendant, after pleading against him, has dismissed without having him served with process, would not be bound by the judgment, and is not disqualified, as a party to the suit, from testifying as to transactions with, or declarations by, the testator. (P. 423.)</p> <p>2. Practice in Courts of Civil Appeals—Rendering Judgment—Disputed Facts. Under art. 1027 Rev. Stats., 1895, the Court of Civil Appeals, on reversing the</p> <p>judgment of the lower court, is not authorized to render judgment unless, as a matter of law, upon the evidence contained in the record, the one party or the other is entitled to judgment. The facts supporting the case of the party in whose favor it is rendered must be undisputed, and the evidence or agreed facts such as would authorize the trial court to direct a verdict for such party. (Railway v. Strycharski, ante, — followed.) See opinion for case held to present disputed questions of fact. (Pp. 423 to 425.)</p> <p>3. Community Property—Deed by Widow and Executrix.</p> <p>The widow and executrix of T. W. M., without authority from the will or order of court, executed a warranty deed to property devised by him to his children, making the conveyance by direction of T. G. M., who had formerly conveyed it to T. W. M. There was evidence that the latter held it in trust for T. G. M: also evidence that they were owners in common. Held that, on the latter theory, her conveyance passed title to the half interest of T. G. M„ and also to her community interest in the half owned by T. W. M., and the children of the latter could recover from the purchasers not more than an undivided one-fourth of the land. (P. 425.)</p>

<p>Error to Court of Civil Appeals, Third District, in an appeal from McLennan County.</p>

<p>Deed—Construction—Power of Sale.</p> <p>A deed conveyed to grantor’s wife and three daughters his share in his deceased father’s estate, and gave the wife power to sell and convey it for her own use and benefit and that of her said daughters. It also conveyed to the wife and daughters certain other land, his separate property, and gave to the wife “full power and authority to sell, convey and dispose of all the property herein deeded to her, for her own use and for the use and benefit of her said minor children, as she may see fit and proper.” The grantor afterwards joined with his wife in a conveyance of such land to other parties. Held that the power given to the wife by the first deed, .to convey the land not derived from the father’s estate, extended only to the interest conveyed to her by such deed, and her conveyance did not affect the title acquired by the daughters.</p>

<p>U sury—Penalty.</p> <p>Under sec. 5198, Rev. Stats., U. S., one who has paid usurious interest to a National bank can recover, in an action commenced within two years, double the whole amount of interest paid, and is not restricted to a recovery of double the amount paid in excess of the legal rate.</p>

<p>TJ sury—Penalty.</p> <p>Under Rev. Stats., Texas, art. 3106, one who has paid usurious interest can recover, in an action commenced within two years, double the whole amount of interest paid, and is not restricted to a recovery of double the amount paid in excess of the legal rate.</p>

The suit was brought by Likens et al. for the recovery of land, for which they had judgment in the trial court. Hermann, the defendant, appealed, and on affirmance of the judgment obtained writ of error.

<p>Petition for writ of error to Court of Civil Appeals First District, in an appeal from De Witt County.</p>

Certificate of Dissent, from Court of Civil Appeals, Second District, in an appeal from Tarrant County. The suit was brought to recover from the railway company damages-for causing the death of J. M. Staggs. Plaintiffs -had judgment in the trial court, which, on defendant’s appeal, was reversed, Hunter, Associate Justice, dissenting. (37 S. W. Rep., 609.) A former certificate of dissent was dismissed. Ante, 254.

<p>Error to Court of Civil Appeals, Fourth District, in an appeal from Bexar. County.</p>

<p>1. Assessment for Taxation—Oertainty of Description.</p> <p>Description of the property in its rendition and assessment for taxation is sufficient when it furnishes the means by which the property can be identified from the description itself, or by the use of extrinsic evidence to apply that description, to the property. (P. 471.)</p> <p>3. Same—Assessment for City Taxation.</p> <p>Art. E076, Rev. Stats., which prescribes the requisites for assessment for State and county taxes, does not apply to assessment for city taxes; and the failure to give, in the description, the certificate number, abstract number and survey number does not affect the validity of the assessment, (P. 472.)</p> <p>3. Same.</p> <p>Property in the city of Henrietta was rendered by E. and assessed for taxation by the city under the following description: "Original Grantee or Addition, McKinney & Williams—Lot, all— Block, 31.” The city was located, in whole or in part, on the McKinney & Williams survey; it contained no addition known as the McKinney & Williams Addition; and there was a block No. 31 in the city, upon that survey, claimed by E.—Held that the rendition and assessment were not void for uncertainty of description. (Pp. 471, 472.)</p> <p>4. Void Tax Deed—Constitutional Law—Tender of Taxes.</p> <p>The requirement in art. 518, Rev. Stats., 1895, (art. 447, Rev, Stats., 1879) that no person shall he permitted to question the title acquired by a city tax deed without showing that all taxes due upon the lands have been paid is, as applied to a void sale for taxes, contrary to the provisions of the State Constitution, art. 1, secs. 13 and 19 and to sec. 1 of the fourteenth amendment to the Constitution of the United States, in that it denies to a citizen his constitutional right to a remedy by due course of law for an injury to his right of property and forfeits and takes from him his property and gives it to another. (Pp. 472 to 475.)</p> <p>5. Same—Case Explained.</p> <p>The question of the constitutionality of such statue was not before the Supreme Court, nor passed on by them on the former appeal in this case. City of Henrietta V. Eustis, 87 Texas, 19. (Pp. 472, 473.)</p> <p>6. Supreme Court Jurisdiction—Certificate of Dissent.</p> <p>Upon certificate of dissent the Supreme Court has no jurisdiction to decide any question except one upon which the judges of the Court of Civil Appeals have disagreed. (P. 472.)</p>

<p>Ebbob to Court of Civil Appeals, Third District, in an appeal from McLennan County.</p>

<p>1. Building and Loan Association—Contract—Practice on Appeal—Matters Omitted in Brief.</p> <p>In a proceeding to foreclose a mortgage given to a building and loan association, a provision in the contract that, on default in payment, the whole sum, less what had been paid such association for monthly dues on its shares, should, at its election, become immediately due and payable, was omitted from the briefs of counsel for the association and not supplied by those of their adversaries. Held:</p> <p>(1) Since the Court of Civil Appeals awarded foreclosure for a debt not due, save by this provision of the contract, it would be presumed to have been considered by them, and would be considered and the credit provided for thereby allowed upon writ of error by the Supreme Court. (Pp. 485, 486.)</p> <p>(2) The right to this credit did not depend upon whether the debt was usurious, but resulted from the election to declare the debt due under the provisions of the contract, and the mortgagors, by virtue of such election, were entitled to a credit for the amount paid by them as dues upon the stock. (P. 486.)</p> <p>2. Attorney’s Fees—Legal Proceedings.</p> <p>When a trustee’s sale under a mortgage given to a building and loan company was enjoined on the ground that the premises were homestead and the claim usurious, the company, obtaining in reconvention a foreclosure upon their mortgage, were entitled to the benefit of a provision in their mortgage for the recovery of attorneys’ fees on the amount found due though the claim they were seeking to enforce by the trustee’s sale was usurious. - (Pp. 486, 487.)</p> <p>3. Building and Loan Association—Usurious Contract.</p> <p>A holder of stock in a building and loan association borrowed $1300, giving bond to pay interest thereon at six per cent per annum and a premium of $1300, making $2600. He might also discharge the obligation by payment of the $1300 with interest and surrender of his 26 shares of stock, after'paying annual dues thereon until they became fully paid out and of the value of $100 per share. Held, that such contract was usurious. (P. 487.)</p> <p>4. Usurious Contract—By What Law Governed.</p> <p>A building and loan association, a corporation created by the laws of Dakota, having established itself in Texas under a permit from the State to do business therein, for a period of ten years, loaned money to a resident of Texas, one of its members, under a contract made in and usurious by the laws of that State, but valid under those of Dakota. The obligation was made payable in Dakota but was secured by a mortgage upon real property in Texas. Held, that such contract was, upon its face, one intended to be enforced in Texas, and made payable elsewhere in evasion of the usury laws of this State, and that it should be held to be usurious. (Pp. 487 to 491.)</p>

<p>Questions Certified from Court of Civil Appeals, Second District, in an appeal from Jones County.</p>

<p>1- Venue—Place of Performance.</p> <p>Sec. 5, art. 1194, Rev. Stats., applies as well to non-resident corporations as to-residents. The privilege given by sec. 25 of that article, of suing a non-resident corporation in any county in which it maintains an agent was not intended to limit the right given by section 5 of such article to sue a defendant in any county in which he had contracted in writing to' perform the obligation sued on. (P. 498.)</p> <p>2. Same</p> <p>A railway corporation of another State, having offices and agents, but no line1 of road, in this State, can be sued for damages to goods in any county in which by its bill of lading it has contracted to deliver them, though it has limited its liability to damages occurring on its own line; and cannot claim the privilege of being sued only in a county in which it has an agent. (Pp. 497, 498.)</p>

<p>Petition for Writ of Error, to Court of Civil Appeals, Second District, in an appeal from Taylor County.</p>

<p>Question Certified from Court of Civil Appeals, Fourth District, in an appeal from Dallas County.</p>

<p>Certified Question—How Stated.</p> <p>In certifying a question to the Supreme Court, under art. 1043, Rev. Stats., the Court of Civil Appeals should not present it as an abstract question of law; but the certificate should show how the question arose and all the facts in relation to it which bear upon the decision.</p>

<p>Application for writ of error to Court of Civil Appeals, Fifth District, in an appeal from Dallas County.</p>

<p>Questions Certified from the Court of Civil Appeals, Third District, in an appeal from Travis County.</p>

<p>Petition for writ of error to the Court of Civil Appeals, Fifth District, in an appeal from Grayson County.</p>

Petition for writ of error to Court of Civil Appeals, Fourth District, in an appeal from Bexar County. The portions of the charter of the city of San Antonio referred to in the opinion are as follows: “Sec. 193.

<p>Questions Certified from Court of Civil Appeals, Fifth District, in an appeal from Henderson County.</p>

<p>1. Street Railway—Abandonment—Mandamus to Compel Operation. Permission being granted an incorporated company, by ordinance o£ a city, to</p> <p>construct and operate a line of street railway, its acceptance, by constructing the line, of such mere permission to do so, does not impose upon it such an undertaking to continue to operate the entire line so built as the State can enforce by mandamus. (Pp. 522 to 528.)</p> <p>2. Same—Forfeiture.</p> <p>The company’s abandonment of the operation of a part of a branch line so constructed might, it seems, be ground for forfeiting its franchise as to the entire branch. (P. 528.)</p> <p>3. Same—Cases Reviewed.</p> <p>Railway v. The Queen, 1 Ell. <& Bl., 858; Minnesota v. Railway, 18 Minn., 40; State v. Railway, 29 Conn., 538; City v. Railway, 51 Kan., 609; People v. Railway, 24 N. Y., 261; explained and criticised. (Pp. 524 to 526.)</p>

<p>1. Foreign. Corporation—Charter—Limitation of Powers.</p> <p>A foreign corporation can exercise in this State no power prohibited to it by its charter. The general laws of another State limiting the powers of a corporation created therein constitute the charter of such corporation and limit its capacity to act in Texas to the same extent as if chartered by a special act of such foreign 0 State containing the same limitation. (P. 533.)</p> <p>3. Same—Capacity to Hold Land.</p> <p>Land in Texas was devised to a residuary legatee, a corporation of New York, prohibited by the general incorporation law of that State, under which it was created, from receiving or holding land exceeding in value a named amount, the corporation already holding lands to the value so limited. Held, that the title did not vest in such devisee, for want of capacity in the corporation to receive and hold it, but descended to the heirs. (P. 633.)</p> <p>3. Same—Who Can Question Capacity.</p> <p>The heirs or those claiming under them could defend the title on the ground of such want of capacity in the devisee, though the State only could raise such question in case of a deed to the corporation. (P. 533, 534.)</p>

<p>1. Deed—Rules for Construction.</p> <p>Every part of the deed is to he given effect if it can he done. The largest estate its terms will permit will be conferred upon the grantee. Where language cannot be harmonized, that interpretation is adopted most favorable to the grantee. That in the description which is false may be rejected if the description is sufficient without it. (Pp. 537, 538.)</p> <p>2. Same—Deed Construed—Entire or Half-Interest.</p> <p>J. and S. owned. two tracts of land of 640 and 320 acres, patented to W. S. B. and acquired by them partly as heirs of their half brother, W. C. B., but chiefly by inheritance from their mother, the widow of W. S. B. and mother of W. C. B., whom she had survived, he being her son by her first husband, W. S. B., and J. and S. being her son and daughter by a second marriage. They joined in conveying to C. “Two parcels of land, situated in Wise County, State of Texas; one parcel contains 640 acres and the other parcel contains 320 acres; being one-half of two parcels of land patented by W, S. B., now deceased, who died leaving one child to whom these lands descended, which child afterwards died, leaving as his heirs at law the said J. a half brother and S. a half sister.” "And for more particular boundaries see the patents to said W. S. B.” Held, that such instrument conveyed the entire title to the two tracts, and not merely a half interest therein. See opinion for fuller statement of the facts showing the intention of the parties and supporting the above construction of their deed. (Pp. 536 to 539.)</p>

<p>Questions Certified from Court of Civil Appeals, Fourth District, in an appeal from County Court, Dallas County.</p>

<p>Questions Certified by Court of Civil Appeals, Fifth District, in an appeal from Bowie County.</p> <p>In the lower court the action against the sureties on the attachment bond was held barred, and they were discharged. Upon appeal by plaintiff, an opinion was pronounced in the case reversing the judgment below, and rendering it for appellant, with dissenting opinion. Pending a motion there for rehearing, the Court of Civil Appeals submitted the point to this court as a certified question, not as upon certificate of dissent.</p>

<p>1. Legal and Equitable Title.</p> <p>Patent issuing to the heirs of one deceased, who were eight in number, one who had previously acquired, by their transfer of the unlocated certificate with warranty, the interest of four of the heirs and that of the widow of their ancestor, owner of one-half interest as community property, became thereby vested with the legal and equitable title to one-half the land, and with the equitable title only to an additional one-fourth,—the four heirs not joining in the transfer taking the legal title to the remaining half, but taking the half of such half in trust for those holding under the transfer of the certificate. (Pp. 551, 552.)</p> <p>2. Same—Unrecorded Deed—Notice—Burden of Proof—Legal Title.</p> <p>Against suit by such purchaser, he being holder of the legal and equitable title to one-half interest, though by an unrecorded conveyance, one who relied upon a subsequent purchase from the heirs to defeat such half interest must prove, not only that he was a purchaser in good faith for a valuable consideration, but that he had no notice of the claim asserted under the first purchase. (P. 552.)</p> <p>3. Same—Equitable Title.</p> <p>But so far as the plaintiff relied upon his equitable title to one-fourth of the land, to which defendant opposed the legal title derived through purchase from the heirs before the recording of plaintiff’s conveyance, the burden rested on plaintiff to show notice to defendant or such facts as would charge him with notice. (P. 552.)</p> <p>4. Legal and Equitable Title—Limitation.</p> <p>Defendant having held possession of the land for three years under conveyances from the patentees or their heirs, the title so derived was sufficient to support the three-years’ statute of limitations against plaintiff’s equitable interest of one-fourth of the land, from the time defendant obtained the conveyance of title from all the heirs; but his purchase from a part of the heirs, with understanding that there were others interested, with whom he became tenant in common, did not have such effect. (Pp. 552, 553.)</p> <p>5. Same—Legal Title.</p> <p>As to the half interest, in which plaintiff held both the legal and equitable title, the title of defendant, obtained from heirs who had neither legal nor equitable . title, was not a regular chain of transfer from the sovereignty of the soil nor color of title within the meaning of the statute, and was not sufficient to support limitation of three years. (P. 553.)</p> <p>6. Warranty—Subsequently Acquired. Title.</p> <p>Title to land subsequently acquired by one who has conveyed it with warranty of title passes, eo instanti,. to his warrantee, binding both the warrantor and his heirs, and subsequent purchasers from either. (P. 553, 554.)</p> <p>7. Three Years’Limitation—Break in Chain of Title.</p> <p>After conveyance of land by the owner, his subsequent deed to another will not support a plea of three years limitation. (Pp. 554, 555.)</p>

The suit was trespass to try title, brought by the Concho Cattle Company against Rogers. The court directed a verdict for plaintiff. Defendant appealed, and on affirmance by the Court of Civil Appeals, obtained writ of error.

<p>1. Trust—Combination, a Necessary Element.</p> <p>In order to constitute a trust such as is prohibited by the statute (Rev. Stats., art. 5313) there must be a combination,—that is a union or association,—of capital, skill or acts by two or more. (P. 565.)</p> <p>2. Sale of Good Will—Agreement Not to Carry on Business.</p> <p>A merchant sold out his stock and business, agreeing with the purchaser to retire from the mercantile business in the town for the period of twelve months, and to use his efforts to secure his patronage and custom to the purchaser. Held, that such contract was not unlawful as being in restraint of trade nor as contravening the statute of the State prohibiting trusts. (Rev. Stats., art. 5313.) (Pp 564, 565.)</p>

A former judgment in this case was reversed on appeal (32 S. W. Rep., 578.) On a second recovery by plaintiff, affirmed on appeal, defendant obtained writ of error, alleging as ground therefor that the court erred in not sustaining its complaint of the charge given, which instructed the jury to assess damages, in case of recovery, “at such sum as you believe will be a fair and reasonable compensation to the plaintiff for any loss,” etc., because such charge did not limit the…

<p>Questions Certified from the Court of Civil Appeals, Third District, in an appeal from Bell Connty.</p>

<p>1. Title—Common. Source.</p> <p>A void tax deed may be used as evidence that parties claim title under a common source; but the acceptance of a deed purporting to convey the interest of several persons, without specifying their respective interests, is not an admission that either of them owns any definite interest. So a tax deed purporting to convey the interest, not only of A., the party against whom the taxes were assessed, but of every other claimant, can not be construed as an assertion of title by the purchaser through any particular person, nor furnish evidence that those claiming title under him claim any interest therein under A. (P. 579.)</p> <p>2. Heirship—Evidence.</p> <p>A survey of land was patented to the heirs of C. A. The only evidence to prove that D. A. was sole heir of C. A. was the testimony of the granddaughter of the former that he was the only child of C. A. that she ever knew or heard of: but the administrator of D. A. had inventoried a'one-eighth interest, only, in the survey as belonging to that estate and such one-eighth interest had been set aside to two of the heirs in the partition of the estate. Held, that the evidence did not conclusively show that D. A. was the sole heir, or that any of the remaining seven-eighths was inherited by his descendants. (Pp. 5S0, 581.)</p> <p>3. Case Approved.</p> <p>The rulings of the Court of Civil Appeals in this case, Hendricks v. Huffmeyer, 38 S. W. Rep., 523, approved. (P. 579.)</p>

<p>Questions Certified from Court of Civil Appeals, Fourth District, on error to Dallas County.</p>

Ebbob to Court of Civil Appeals, Fourth District, iu an appeal from Jefferson County. The suit was brought by Watkins against Junker, who reconvened for damages. In the first trial both plaintiff’s claim and the reconvention were disallowed and plaintiff appealed and secured a reversal. (19 S. W. Bep., 391.) There was a second trial and judgment, which was reversed, on appeal by plaintiff. (4 Texas Civ.

Ebbob to Court of Civil Appeals, Third District, in an appeal from McCulloch County. The suit was brought by Thaxton, a trustee substituted by order of court for the original assignee, to recover land assigned and remove cloud from title occasioned by sheriff’s deed to Smith, the defendant. The latter had judgment; plaintiff appealed; the judgment was affirmed, and he obtained writ of error from the Supreme Court.

Shumate appealed from a judgment setting aside, in lieu of allowances to the family of deceased, the proceeds of a crop on which he held a landlord’s lien. The judgment being reversed and remanded, appellees obtained writ of error from the Supreme Court, on the ground that the ruling practically settled the pase. The opinion of the Court of Civil Appeals is here published as necessary to a proper understanding of this decision.

<p>Questions Certified by Court of Civil Appeals, Third District, in an appeal from Lampasas County.</p>

<p>Railroad—Land Grant—Constitution of 1869.</p> <p>Construing the charter of the Washington County Ry. Co. (Special Act of Feb. 2, 1856), the Act confirming the purchase of its road by the Houston and Texas Central Ry. Co. (Act of Aug. 15, 1870), and the Act of Feb. 2, 1853, authorizing the latter company to build a branch to Austin,—Held: that the extension of such latter company’s road from Brenham to Austin was constructed by authority of the Act of Aug. 15, 1870, and not under any authority previously given; that at such time the Legislature was prohibited by art. 10, sec. 6, of Constitution of 1869, from granting lands in aid of the construction of a line differing in location from that authorized by previous laws by which the right to a land grant was secured; and that the State could recover from the company lands obtained by it upon certificates unlawfully issued for the construction of such branch. (Following Railway v. State, 89 Texas, 340.)</p>

It is not sufficient excuse that the architect may have stated that it was useless to give a certificate, because the contractor had no monies to pay. It is only where the architect fraudulently and arbitrarily refuses to give a certificate, that the contractor will be authorized to sue without first procuring a certificate and complying with the terms of the contract.

Wilbarger County. Chowning brought suit against Willis & Bro. to recover land sold under execution. Defendant had judgment below, which, on plaintiff’s appeal, was reversed and rendered for appellant. Appellee procured writ-of error from Supreme Court.

Alice Culpepper brought suit and obtained judgment against defendant company, for the death of her husband, an engineer in its employ. On defendant’s appeal the judgment was reversed by the Court of Civil Appeals, and she obtained writ of error on the ground that the ruling practically settled the case.

<p>1. Practice on Appeal—Correction of Record.</p> <p>The Court of Civil Appeals is bound by the record as it appears in the transcript. It was error for it, upon evidence presented to show that a statement of facts was filed after adjournment of the. trial court, to strike such statement from the-record.</p> <p>2, Same.</p> <p>Proper practice would be to suspend action till the record could be corrected in the trial court.</p>

<p>1. Special Verdict—Failure to Find Facts.</p> <p>Plaintiffs sued as owners of lands on which alleging an agreement entitling them to pay off the. incumbrance after foreclosure, and a sale by the purchaser in violation of such agreement. The case having been submitted on special issues and verdict, held, that: a mortgage was foreclosed.</p> <p>(1) The verdict must constitute the basis of the judgment, and the court can not look to the evidence". (P. 645.)</p> <p>(2) The ownership of the land by plaintiffs was a material issue, and without a finding of that fact by the jury no judgment could be rendered for plaintiffs. (P. 647.)</p> <p>(3) Arts. 1330, 1331, Rev. Stats. (1879), are but declaratory of the law as previously announced by the courts, but place it beyond the power of the court to modify its previous rulings. (P. 645.)</p> <p>(4) The rule disapproved by the court, and legislative modification suggested. 0?. 646.)</p> <p>(5) A special answer by defendant, though it failed to deny or expressly admitted the ownership as alleged, would not, when accompanied by a general denial, dispense with a finding of such fact by the jury. (P. 646.)</p> <p>S. Damages—Breach, of Contract to Allow Redemption of Land.</p> <p>In a suit for breach of contract to permit plaintiff, as owner of mortgaged land, to redeem same after foreclosure and sale, held:</p> <p>(1) If the lands had been sold to innocent purchasers at the time of suit, plaintiffs would have been entitled to the excess in its value over the mortgaged debt, including costs of the foreclosure proceedings. (P. 647.)</p> <p>(2) If but a small part of the lands had been sold at commencement of the suit, without thereby depreciating the unsold remainder in value, defendants should be charged with the value of the lands sold and the plaintiffs should be entitled to recover the unsold lands, upon paying the remainder of the mortgage and debt charges. (P. 647.)</p> <p>(3) But when defendant had continued to sell such remaining lands after suit brought, though, buying pendente lite, the purchasers would not be protected as innocent holders, the trustee who had sold it was in no position to demand that plaintiff should proceed against them, and plaintiff could hold him responsible for the value, though entitled, if he so elect, to proceed against the purchasers. (Fp. 647 to 649.)</p> <p>3. Misjoinder—Verdict.</p> <p>Where parties whose rights were separate and distinct were improperly joined as plaintiffs, though such misjoinder must be pleaded or be waived, yet when, without such plea, the case is submitted on special issues, there should be separate findings as to such plaintiffs suing in distinct rights. (P. 649.)</p> <p>•4. Pleading—Prayer for Relief—Query.</p> <p>Where plaintiff prays for certain relief absolutely, and for different relief in the alternative only, in case the first is refused, if he shows a case entitling him to that first prayed for can he be awarded the alternative relief? (P. 649.)</p> <p>5. Damages—Value of Land—Subdividing.</p> <p>When damages are measured by the market value of a larger tract of land, the test is not what it would bring when cut up into, small tracts suitable for farms, involving expense thereby. (P. 650.)</p>

The suit was brought by Farmer against Wofford et al., and plaintiff had judgment, which, upon defendant’s appeal, was affirmed by the Court of Civil Appeals. Appellants thereupon obtained writ of error.

Henning recovered judgment in the trial court for personal injuries' caused by the negligence of his employee, the railway company, from which the latter appealed, and upon affirmance of the judgment of the Court of Civil Appeals, procured writ of error.

Suit by Emma F. Allibone, to recover from the Fidelity and Casualty Insurance Company upon a policy of accident insurance on the life of her husband.