Volume 2 — Posey's Unreported Cases

Opinion bjr Quinan, J. Statement.— Mitchell instituted suit against the Balderases (trespass to try title) for the recovery of two hundred acres of land. The Balderases pleaded not guilty. The case was submitted to the judge, a jury being waived, and there was judgment forthe defendants. Mitchell moved for a new trial, and this being overruled appealed. On the .trial it was admitted that the title to the land was in Mitchell on May 1, 18G7.

<p>Appeal from Johnson county. Opinion by Walker, P. J.</p> <p>Statement.— This was a suit, as shown by the amended petition, brought by Hester A. Lyttle joined by her husband, J. J. Lyttle, for the recovery against E. P. Harris of a certain lot in the town of Cleburne, and for rents. The petition alleges that the property was purchased by said plaintiffs in'the year 1867, from B. J. Chambers; was fully paid for by them, the greater part of the consideration paid being the separate property and funds of said Hester A.; that the deed was made to said J. J. Lyttle; that they moved on said lot and resided upon it, and that it was their homestead and is still their homestead. The petition alleges that, being so possessed of their homestead, the defendant, on the 2d day of November, 1868, unlawfully entered upon their said premises and homestead and ejected plaintiffs therefrom; and wrongfully withholds possession of same, to plaintiffs’ damage $500. The petition alleges that plaintiffs, since their ejection, have owned no other real estate, and have acquired no other homestead; plaintiff Hester A. says that, after said ejection, her husband moved her axvay from Cleburne, and has wandered about xvith his family from one place to .another, in the counties adjoining Johnson county, living most of the time in a tent. She alleges that soon after their said dispossession she applied to her husband to join her in a suit to recover possession; that he refused to do so at the time; she also alleges that in the year 1870 she engaged the services of a lawyer to institute suit to recover possession of said homestead, who declined doing so for the reason that the supreme court had decided, during that year, that a xvife could not maintain a suit for such a purpose alone; that afterxvards, by frequent persuasions, she succeeded in obtaining the consent of her husband, in the year 1878,"to bring the suit, and this action was at once commenced on the 10th of June of the year last mentioned. The petition proceeds to allege, further, that “ plaintiff Hester A. says she never intended to abandon her homestead and has never abandoned it; that she did not return to it simply because she could not get possession; that plaintiffs were not residing upon said lot at the time defendant got possession of the same; that plaintiffs had been sending their children to school and xvere indebted for their tuition; that plaintiffs moved off from their said home and rented the same by the month in order to raise funds to settle said tuition, and while said property ivas so rented plaintiffs lived on a vacant lot in the said town of Cleburne in a tent, and whilst so living in said tent defendant got possession of their homestead.”</p> <p>The petition concludes with a prayer for relief in behalf of the plaintiffs. “They pray,” etc., “that plaintiffs have judgment in said premises, damages, rents, and that they have a writ of restitution, and for general relief.”</p> <p>It appears from the answer that the original defendant disclaiming, A. Q-. Jones, by leave of court, defends, and in his amended ansiver files a general demurrer to the peti- ■ tion, and as grounds therefor:</p> <p>1. That it is not averred what amount of the purchase money was paid out of the separate funds of said Hester A., nor that any part of said lot is her separate property, or whether the same is community property or not.</p> <p>2. That it is not averred that the husband, J. J. Lyttle, did not. abandon their said homestead, nor that the said Hester A. refused to follow her husband, or ivas compelled by him to leave Johnson county and live in a tent with her said husband and family.</p> <p>3. That the petition does not allege what estate the plaintiffs claim in said premises.</p> <p>4. That the cause of action for rents appears on the face of the petition to be barred by the two years’ statute of limitations. The demurrer was sustained by the court, and, plaintiffs declining to amend, judgment ivas rendered for the defendants; the plaintiffs on their appeal assign as error the sustaining the general demurrer and rendering final judgment against plaintiffs'.</p>

<p>Appeal from Falls county. Opinion by Quinan, J.</p> <p>Statement.— From the state of the case it will be seen that many of the numerous questions which have been raised by the assignment of errors in this case have already been considered and determined in the cases in the supreme court between the plaintiffs here and other parties growing out of the same titles and testimony, and we are, therefore, relieved of the necessity of reconsidering them. See Hammond v. Hough, 52 Tex., 03. The questions now to be considered. are as to the admissibility in evidence of the power of attorney of October, 1838, from Steele to Livermore, the admissibility of the testimony of Gonnally as to his understanding how Livermore acquired the land in controversy, etc., and the admission of the transcript of proceedings in the succession of Livermore, and the judge’s charges.</p> <p>The admissibility of the power of attorney was objected to on the ground that it was but a copy; that no predicate was laid for its admission by proof of the loss of the original, or its non-production accounted for. The court permitted it to be read as an ancient document. This instrument, or the original of which it is a copy, appears to have been drawn up and executed before the notary, Harvey, in accordance with the laws in force in the year 1836. Smith v. Townsend, Dallam, 569. Acts of this character were performed in the notary’s office, and they remained there as a part of his record. He authenticated his acts with instrumental witnesses, and gave copies to serve the parties as testimony, signing his name as notary, with witnesses of his existence. Seals were then unknown as means of authentication. This, inconvenient method for the execution of instruments was novel and unaccustomed to our people, and it was doubtless with a view to the adoption of a mode with which they were more familiar, that the several Statutes were passed by the congress of the republic for the appointment of notaries public, and providing the manner in which their acts should be authenticated. The act of December 20, 1836, made the chief justices of the county courts ex officio notaries public, and directed that the seal of the county court should be their notarial seal, and be affixed to all instruments and attestations. The act of November 16, 1837, provided for the appointment of notaries for the ports of entry (of which Matagorda was one),'and its second section declared “ That the several notaries public shall have a seal of office, and all certificates or other acts performed by them shall be signed by the said notaries, and the seal of office thereunto affixed.”</p>

<p>Drafts, suit on — Evidence.— Plaintiff sued upon certain drafts, and a demurrer to his petition was overruled; the court below after-wards refused to allow said drafts to be introduced in evidence. Held, error.</p>

<p>Appeal from Kaufman county. Opinion by Walker. P. J.</p> <p>Statement. — The appellant assigned, among other grounds of error, the following, viz. s</p> <p>4. That the court erred in permitting plaintiff to recover on breach of warranty to title of the E. A. Terrell survey, when the proof showed that title to said Terrell survey had i not failed.</p> <p>5. That the court erred in giving judgment for plaintiff for damages growing out of breach of warranty of title, when all the proof only tended to show a shortage in the quantity of acreage; that the title to said survey was admitted and proved to be good.</p> <p>These two assignments may be considered together. As applied to the, facts of this case, they involve the proposition whether, when the description given in a deed by metes and bounds, under a survey which has been made of the land, and the line of tíie survey of a different tract of land is called for, and the line as purporting to have been run according to distance shall pass over said line of such other survey, and thereby embrace within said metes and bounds a part of said adjoining tract of land, whether the line or boundary of the latter tract thus called for shall necessarily and conclusively control the calls of the lines for course and distance; whether, in other words, by the terms of the deed and its legal effect, containing such a description of the land conveyed, the boundaries are restricted to the line of such adjoining survey. If they are not, the further proposition contained in the fifth assignment of errors need not be considered, because there would not be, in fact, any “ shortage ” in the number of acres intended to be conveyed, and the question involved would be that which arises on a failure of title as to part of the land conveyed.</p>

<p>Appeal from Harris county. Opinion by Walkeb, P. J.</p> <p>Statement.— The question of controlling consequence to the rights of the parties to this suit arises out of the construction to be placed upon the fourteenth section of the general provisions of the constitution of 1869, which reads as follows: “The rights of married women to their separate property, real and personal, and the increase of the same, shall be protected by law; and married women, infants and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from and after the removal of each and all of their respective legal disabilities.”</p> <p>The first .clause contains an instruction to the legislative department requiring the enactment of proper laws for the purpose therein named, and the remaining portion of the . section is a limitation upon the power of the legislature to prescribe a bar against the classes of persons therein protected, of a shorter period than seven years from the period of the removal of their respective disabilities, and, at the same time, is a complete rule governing the subject to which it applies without needing the aid of the law-making power to give it immediate effect.</p>

<p>Judgment — Evidence.—A judgment is not void because it fails to give the Christian name of the defendants. Parol evidence is admissible to identify the parties to such a judgment.</p>

<p>Appeal from De Witt county. Opinion by Walker, J.</p> <p>Statement.— September 20, 1875, Lockhart brought an action of trespass to try title for four hundred and forty-eight acres of land against appellants. The defendants pleaded not guilty, setup title in themselves under an older title, pleaded limitations of three and five years, and suggested improvements made in good faith. The plaintiff claimed under an administrator’s deed of date February 27, 1875, made by A. Jeffries, administrator of the estate of Thos. W. Griffith, deceased.</p> <p>It appeared that in February, 1866, B. F. Griffith was appointed by the probate court of Washington county administrator of said estate and qualified as such. In March he returned an inventory consisting of a few articles of personal property, which were at once sold, realizing $87.50. September 6, 1866, the administrator filed an additional inventory of the tract of four hundred and forty-eight acres in controversy in this suit and situated in .Be Witt county, appraised at $5 per acre. October 1, 1866, the administrator filed an application for sale of the land, and, copying from the petition, it “ shows to the court that there are no debts against said estate and no claims in favor of said estate known to affiant, and no necessity of keeping said administration open any longer; with a view to closing same petitioner states that there is a tract of land (describing it) which is incapable of partition and distribution (there being seven per stirpes heirs of said decedent); that the interest of said heirs would be best subserved by selling.said land for cash on the first Tuesday in December next, in Be Witt county, as in cases of sheriff sales, when the purchase money thereof will be paid in petitioner’s hands subject to partition and distribution. Wherefore he asks for an order of sale of said lands in accordance with this petition,” etc.</p> <p>On the same day the court made the following order (being a general' order of sale):</p> <p> </p> <p>“ The application of B. F. Griffith, administrator of the estate of Thos. W. Griffith, deceased, coming on to be heard, and the matters and things therein set forth having,, by the court,- been duly considered, it is therefore ordered by the court that said administrator do, on the first Tuesday in December, 1866 (the 4th day of said month), proceed to sell (advertising same as in case of sheriff’s sales), for cash, before the court-house door, in Be Witt county, to the highest bidder, a tract of land described, etc., . . . (describing the tract), the same being the property of said estate, and make to this court report of said sale as the law directs.”</p> <p>The return of sale was made January 28, 1867, showing that the land had been sold to James P. Pridgeon at $1.25 per acre; total, $560.50. On the same day the court, by an order, confirmed the sale and ordered that ie the administrator make title therefor.” May 28th the administrator filed an exhibit reporting $638.42 money on hand, having made some collections not inventoried, after deducting costs, expenses, commissions and debts paid, reporting a debt of $47 unpaid.</p> <p>August 17, 1869, Lockhart filed an application alleging his ownership of a purchase-money note allowed and approved against the estate, and a lien on the tract of land; alleged that the former sale was fraudulent and made to' deprive petitioner of his lien; was without jurisdiction and void, etc.; praying for an order of sale under his lien. This application was resisted by the administrator, but October 30, 1869, it was granted, the order reciting “ that the administrator had, prior to the said application to sell said land for partition, full notice of the existence of said note and lien, and it further appearing that the proceedings and pretended order of sale for partition were made without authority of law and in violation of the express provisions of the statute and laws of the state in such cases .made and provided. It is therefore considered by the court that said order of sale is and was absolutely void.” . . . The decree further ordered the sale in satisfaction of Lockhart’s lien.</p> <p>January 1, 1870, order of sale was renewed. Bale was made and return made by an attorney for the administrator. The sale was confirmed March 5, 1870, and the administrator ordered to make deed to Lockhart, the purchaser. November 3, 1873, Lockhart complained against the administrator, and in 1874 he was removed. October 2,1874, A. Jeffries applied for and was appointed administrator de bonis non. He qualified and returned an inventory containing only the tract of four hundred and forty-eight acres of land aforesaid. October'19, 1874, Lockhart again filed an application for an order of sale, alleging that he never had obtained a deed for the land. The order was made, and under the order Jeffries made sale January 5, 1875.</p> <p>The sale was returned and approved, and deed duly executed to Lockhart for the land February 27, 1875.</p> <p>The defendants claimed under the deed executed by B. F. Griffith to James Pridgeon, under the sale first ordered; the deed bore date April 2,1867. Mesne conveyances were exhibited, all duly recorded. There was testimony tending to show that the land had been held adversely by parties under the Pridgeon purchase, using and cultivating same continuously from 1867. There was testimony as to payment of taxes, etc. The court refused to hear testimony of value of improvements.</p> <p>The court instructed the jury that plaintiff’s title was good; that the Pridgeon title was void. Defendants asked instructions on the subject of valuable improvements under their statutory suggestion of good faith; also their defenses under the statutes of three and five years’ limitations. These were refused.</p> <p>The jury found a verdict for plaintiff, and motion for new trial having been overruled, defendants appealed.</p> <p>The errors assigned are:</p> <p>1. Error in admitting the proceedings from the probate court evidencing a sale to plaintiff, and the charges given and refused.</p> <p>2. Excluding testimony to value of improvements, etc.</p> <p>The appeal involves:</p> <p>1. The. effect of the first sale, whether a nullity.</p> <p>2. Whether such title can support a subsequent purchaser’s limitation of three or five years, and if so, when did limitation begin to run ?</p> <p>3. Whether the vice in the title prevents the present occupants from claiming as innocent possessors the value of their improvements ?</p>

<p>Appeal from McLennan county. Opinion by Quinan, J.</p> <p>Statement.— This case is presented to us upon an agreed statement of the facts, and the propositions of law involved. The questions to be determined are, whether the facts agreed authorized the verdict of the jury, and whether the court erred in its charge. Upon a careful examination of the evidence we are constrained to say that it does not support the verdict of the jury.</p> <p>The charge of the court (which is not excepted to) presented to them the inquiry “ whether Jennings, as agent for Hall & Parks, or with authority from either of them to locate the certificates, agreed to give James a reasonable compensation in the land; whether he did so, and whether the defendants accepted the work and do not complain of the quality or value of the locations, and directed them, if they so found, to find for the intervenors so much of the land as the proof shows is the usual and customary fee paid at the time for the service.”</p>

<p>Mortgage.—Effect of change of evidence of the secured, debt. Charge of court unsupported by evidence.</p>

<p>Appeal from Galveston county. Opinion by Walker, P. J.</p> <p>Statement.— It does not appear that the demurrer and special exceptions of the defendant to the plaintiff’s petition were presented to the court for determination, and, therefore, the questions presented in them will not be considered. The plaintiff’s petition set forth, for all the purposes of rules of proceeding applicable to trials of issues between the parties before the jury, a good cause of action, the gist of which was the alleged breach of contract made by the'defendant’s alleged agent. The- contract relied on was alleged to be one for the sale to plaintiff, and the resale for his account, of three hundred thousand pounds of bacon; that in pursuance thereof, he, the plaintiff, complied with his part of said contract, and that the defendant, through his said agent, in December, 1877, reported to plaintiff the resale of all of said bacon at a large profit to him, said plaintiff. Plaintiff alleged that by the terms of said contract the defendant agreed to hold said bacon and sell the same in St. Louis on the 15th day of October, 1877, oías soon thereafter as possible; that by the terms of the contract, after allowing plaintiff the commissions stipulated in his favor, and taking the market price of bacon at St. Louis on said 15th of October as the standard of value and measure of defendant’s liability, in the absence of a specific report of sales, which it is implied by the plaintiff’s allegations he supposes to have been actually made as referred to in the aforesaid report of Villa vassa in December, 1877, in the general terms before quoted, the plaintiff, proceeding to allege failure to pay him the amount thus due him upon, the foregoing basis, alleging demand, refusal, etc., prays judgment for the amount sued for, to wit, $4,566.25; and he also prays judgment for all damages sustained by reason of the premises stated in his petition, and for other, further and general relief.</p> <p>The answer was general denial that the contract was a gambling one, without consideration and against public policy, and also denial of the agency of Yillavassa to make such a contract; the answer contained special traverses of divers material allegations of plaintiff’s petition, which need not be set out for the purposes of the reference which is now being made to the issues between the parties.</p> <p>Under the assignment of errors, which submits eleven grounds, they all consist in complaints made either to what is contained in the charge of the court, or in the refusal of the court to give instructions asked by the plaintiff, supplementary to or negativing the propositions contained in the charge of the court; whence it follows that if the evidence before the jury was of such a character as rendered the charges given and refused material to the proper determination of the case, that, inasmuch as all the charges which were requested to be given were refused, and that the plaintiff has not been delinquent in failing to ask for the instructions as to the law, as contended for by him, that unless in all those respects, wherein the plaintiff has thus asked instructions, the charge of the court has, under the evidence, sufficiently submitted the law applicable to the issues, such refusal of plaintiff’s instructions would be erroneous, and whether a reversal of the judgment would ensue therefrom would depend on whether it appears from the record that injustice may have resulted therefrom.</p>

<p>Statement of facts.— When there is no statement of facts in the record every presumption is to be indulged in favor of the verdict and judgment of the court below, and it is incumbent upon the party seeking to reverse it to evince that it is erroneous. When the court errs in its rulings in sustaining exceptions to pleadings, but gives the party the benefit of evidence as fully as his cause of action or defense requires, the judgment will not be reversed for such abstract error.</p> <p>Estoppel.— But one suit can be maintained upon the same cause of action, and the judgment therein merges forever all demands passed upon. The judgment is conclusive of such matters in actual controversy as an essential element in the determination of the case.</p> <p>Judgment.— An estoppel extends beyond what appears upon the face of the judgment, to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings.</p>

<p>Administration, application for letters of — Limitation.—A creditor whose claim is barred by limitation cannot force an administration of an estate. When an administrator is removed the sureties on his bond cannot compel a second administration to determine the extent of their i ility. The value of each act of service rendered by an attorm i an administrator in conducting the administration of an est. becomes due on its performance, and when such an account is sought to be enforced by legal proceedings, only such items as are within two years from the commencement of such proceedings will he allowed; all others are barred by the statute of limitations of two years.</p>

<p>Trespass upon realty—Evidence—Decree- op court, how proven.— The proper evidence of a decree of court is a copy from the records of that court duly authenticated. Articles 4710 and 5023, Paschal’s Digest, simply require that a copy of the decree of a court, affecting the title to land, shall be recorded in the county in which the land lies, before it can be admitted in evidence; but they do not provide that a copy of that record shall he evidence.</p>

<p>Appeal from Gonzales county. Opinion by Walkeb, J.</p> <p>Statement.— April 10,1874, Brooks, Knox & Co. brought suit against J. T. Price for $1,430, alleged to be a balance due them on the settlement of a partnership adventure in a drove of cattle driven by them, in 1871, from Texas to Kansas, which resulted in a loss.</p> <p>The defendant pleaded a settlement and adjustment of the accounts between them, and. set up an obligation of date ¡November 26, 1872, executed by plaintiffs, in which it was recited that such settlement had been made, and that Price had been paid in full, obliging themselves to take up a note to one Beall against the partnership, guarantying Price against the claim, and that, in violation of their agreement, the plaintiffs had permitted suit and judgment on said claim, and had caused execution to be levied on one thousand nine hundred a.nd twenty acres of defendant’s land; that plaintiffs had, through an agent, bought in the property. Prayer in reconvention for cancellation of sheriff’s deed, damages, etc.</p> <p>The plaintiffs, in reply, pleaded that the settlement made December 26,1872, was erroneous in many particulars, and had been made in mutual mistake as to the true condition of the partnership losses, asked that the account be opened, etc. An auditor was appointed, who reported a sum from §606 to §914as due from Price on the partnership matter; the larger sum arising from a computation of traveling expenses, insisted on by plaintiffs but resisted by defendant. There was a general verdict for defendant for §250 damages for attorney’s fees. Judgment was rendered for Price, annulling the sheriff’s deed and for the damages found and costs.</p> <p>Plaintiffs filed a motion for new trial for the following reasons: 1. The court erred in instructing the jury to allow the defendant damages by way of attorney fees. 2. The verdict is contrary to the law and the evidence. 3. That the court erred in the admission of evidence as shown by plaintiffs’ bill of exceptions.</p> <p>This motion was overruled and plaintiffs appealed."</p> <p>The errors assigned are: 1. The court erred in the instructions to the jury. 2. The court erred in admitting evidence of, and instructing the jury to find, attorney’s fees for defendant, as shown by plaintiffs’ bill of exceptions. 3. The verdict of the jury was contrary to the evidence and the charge of the court. 4. The judgment was contrary to law and the evidence in the case. 5. The court erred in overruling plaintiffs’ motion for a new trial for reasons therein stated.</p>

<p>Charge. — Where the charge of the court in effect excluded material conclusions to be deduced from the evidence, it is error, without counter-instructions having been presented.</p> <p>Same — Damage to person.— In a suit for damages caused to the person by an assault and battery, held, that it was error to so instruct the jury' as to exclude from their consideration all the circumstances explanatory of the motives and intent of the defendant in striking the blow, or explanatory of the provocation given, notwithstanding the jury might have been satisfied that the defendant wrongfully began the difficulty.</p>

<p>Appeal from Gonzales county. Opinion by Walkeb, J.</p>

Opinion by Walker, J. Statement.— March 14, 18Y4, “the plaintiff sued Kaufman to recover twelve bales of cotton or their value, alleging that the same was, December 31, 18Y3, in the hands of Dublé & Wooters as his, plaintiff’s, cotton factors at Galveston, for sale in the market at Galveston, in accordance with the known usage of trade in said market, and without any authority to ship the same to any other market, or to pledge or dispose of the same in any other way than by…

Error from Colorado county. Opinion by Walker, J. Statement.— March 10,1876, J. L. Harris & Co. brought suit in the district court of Colorado county against S. W. Patchen, a resident of Hew York, and J. H. Simpson & Co., bankers, and residing in Colorado county, claiming that defendants owed one Moses Winter eight hundred dollars; that the debt had been assigned by Winter to one D. D. Chandler,'and by Chandler to plaintiffs; that the said Patchen and one W. B. Coit were in…

<p>Homestead.— Single man not entitled to; attachment lien.</p>

Opinion by Walker, P. J. Statement.— This was a suit brought by the appellee against the appellant, of trespass to try title for the recovery of a certain tract of fifty acres of land; both parties claiming through Michael McCormick. The plaintiff claimed, through a deed from Michael McCormick dated 16th of January, 1868.

Opinion by Quinan, J. Statement.— The grounds alleged of illegality in the action of the city council may be stated succinctly as follows: 1. That the city did not and does not own or possess the right of way on the streets mentioned in Dren nan and Sullivan’s petition, and has not accepted any deed of dedication to such streets. 2. That the work of filling up the ponds and low places was not done by or on account of the city. 3.

<p>Appeal from Galveston county. Opinion by Quinan, J.</p>

Opinion by Quinan, J. Statement.— This is an action of trespass to try title instituted 13th of July, 1870, by plaintiff (appellant), administrator of G. G. Alford, deceased, and the heirs of deceased, to recover of McDonald nine hundred and sixty acres of land in McLennan county, patented to the heirs of G. G. Alford, deceased.

Opinion by Quinan, J. Statement.— This suit was instituted on the 5th of August, 1873, by Harris against the president and treasurer of Marion College and McKenzie and wife, upon a draft drawn by F. P. Fry, president of the board of trustees ■ of Marion College, on B. F. Hawkins, treasurer of the board, in favor of J. P. McKenzie, for S596, accepted on July 10, 1872, and who, on July 15, 1872, transferred it to J. L. Stroop.

Opinion by Walker, J. Statement.— April, 1867, Mitchell qualified as the executor of the will of J. 0. Wheeler. In September following he died. In 1868 Davidson was appointed administrator de loonis non.

Opinion by Walkeb, J. Statement.— On the former appeal in this case, on substantially the same facts, the supreme court held the trust deed inadmissible as against the homestead rights of Mrs. McKellar. An examination of the authorities cited by counsel, and such additional investigation as we have been able to give, leads us to the same conclusion.

Opinion by Walker, P. J„ Statement. — This was a suit brought in the district court of Galveston county by the appellants, against the appellee, on an open account for $724.95, the same being, as is admitted in the statement of facts, for advances made and supplies delivered tty plaintiffs to the defendant upon a certain letter from defendant to them, written before the advances were made and the supplies furnished, which letter, it is further admitted, was the basis of the…

Opinion bv Walker, J. Statement.— December 11, 1873, Jury brought suit in the district court of McLennan county to subject certain lands described in the petition to the vendor’s lien. The facts relied on are, that in 1856 one Ben. Cage sold the lands to one A. E. Handley, who executed his obligation for the purchase money.

<p>Landlord and tenant —Sale or rented land pending the lease.—In sales for partition, and made in partition proceedings, • the purchaser takes all the interest of all the co-tenants in the land, the subject of such proceedings, and becomes entitled to the full ownership in the lands and of all future payments of rents thereon, as against all the parties to the partition suit.</p>

<p>Negotiable note—Bona eide purchases.—No equity can be set up against a bona fide purchaser of a negotiable note.</p>

<p>Homestead — Sufficient description of in pleading.— When the homestead is situated upon a larger tract than two hundred acres and has not been laid off and surveyed, it is sufficient description in the pleadings to use the term “ homestead.” Charges given and refused, in the absence of a statement of facts or bill of exceptions, are not ordinarily the subject of revision upon appeal.</p> <p>Same —Sale without consent of wife.—The sale of the homestead without the consent of the wife, and against her will, does not exclude her from asserting her right thereto, although her husband may acquire another domicile and homestead, to the acquisition of which she does not assent, and to the acceptance of which, as her homestead, she persistently protests. Intimation of McAdoo, J„, in Holliman v. Smith, 39 Tex., 361, to the contrary is dictum.</p>

<p>Street railway—Damages.— Where a city grants to a corporation the right to use its streets for street railways, and provides in the grant of such franchise that the crossings of streets over those upon which the railway is constructed shall be kept in good order, the company is liable for an injury sustained by a person falling through a defective culvert at such crossings, and is the proper party to be sued. This liability attaches to such company, although under its charter the city may not be liable for injuries resulting from defective streets.</p>

<p>Appeal from Tarrant county. Opinion by "Watts, J.</p> <p>Statement.—The record in this case shows that Kempinskey and Jones are brothers-in-law. The former engaged in selling drygoods at Willsville, Mo., the latter selling groceries, queens ware and fancy goods at Moberly, Mo. These towns are about fifty miles apart. Kempinskey, at the time of the pretended sale, was largely indebted ; in fact was hopelessly insolvent. Several judgments had been rendered against him, and he was being pressed by other creditors. Suddenly he arrived in Moberly with the remnant of his stock, which he pretended he had brought there for the purpose of opening business; but immediately, and without unboxing the goods, Jones pretended to have bought them, and it was so arranged that disinterested persons witnessed the payment of the money by Jones to Kempinskey. The goods were' immediately shipped to Ft. Worth, Texas, in the name of Jones. Kempinskey arrived with a most extraordinary power of attorney from Jones, and, accompanied by his former auctioneer, immediately followed the goods and took charge of them at Ft. Worth.</p> <p>This power of attorney authorized Kempinskey to select the place in Texas for the sale of the goods, and to sell the same, either at retail or in bulk, at private sale or auction, and to employ counsel, etc. Kempinskey had been in Ft. Worth in possession of the goods, selling them as best he could, by retail and in lots, for over one month at the time they were seized by the sheriff. Previous to the pretended sale, Jones had been at Willsville and says he examined the stock. After this suit was instituted Jones transferred this claim for damages to a neighbor and friend of Kempinskey. Other badges of fraud" appear in the transcript which it is unnecessary to enumerate.</p>

Opinion by Walker, P. J. Statement.— This was a suit brought by J. M. Holmes against J. W. Booth, M. W. Shoemaker, FT. M. Crenshaw and Samuel Woody, on a joint and several promissory note. Defendant Shoemaker only answered that Booth was principal in the note, and the other defendants were his sureties, and prayed that the fact as to that allegation be inquired into by the jury, and judgment be rendered according to facts.

<p>Appeal from Grayson county. Opinion bj’’ Watts, J.</p>

Opinion by Delaney, J. Statement.— This is a case of trespass to try title, brought ■ in Williamson county and afterwards transferred to Guada- - lupe county. Held: the land at the date of the sheriff’s sale was, in all probability, in Guadalupe county; but it seems that it was equally probable that it was claimed by the officers to be ifi Bexar county.

Opinion by Walker, P. J. Statement.— Ward alone sued; the amended petition showed that certain heirs owned jointly with himself the land in controversy, he owning one-third only. He prayed for judgment quieting his title to the undivided one-third interest, and for a writ of possession evicting defendants from the premises. The verdict was rendered in favor of Ward alone, and upon the verdict judgment was rendered in 'favor of Ward and the heirs and joint owners with Ward.

Opinion by Delaney, J. Statement. — Appellee originally instituted this suit against J. W. Young on a promissory note, and made affidavit and executed bond for an attachment, which was levied on a stock of furniture as the property of Young. Afterwards the Joseph Peters Furniture Company filed a plea in reconvention in the above suit and had Young cited.

Opinion by Watts, J. Statement.— On August 12, 1881, appellee brought this suit against appellant, alleging in substance that she is a feme sole and resides in the state of Ohio, and that appellant owned and operated a railroad from Ft.

Opinion by Watts, J. Statement.— Morton brought this suit against appellee to recover an undivided one-third interest in the land described in the petition and buildings thereon, claiming title by and through a judgment rendered in his favor against Sturgeon, foreclosing the vendor’s lien, and purchase by him thereunder.

Opinion by Delaney, J. Statement.— The present case grew out of the case of Arnold v. Caudle, 49 Tex., 527. Mrs. Campbell, nee Mrs. Caudle, the vendor of appellee, was a plaintiff in that case, and appellant was a defendant therein, and appealed the case.

Opinion by Walker, P. J. Statement.— This suit was brought by Chas. E. Both against the I. & G-.

Tarrant county. Opinion by Watts, J„ Statement.— This is an action by the father for damages for loss of services of his minor son, rendered incapable of performing labor or service by reason of personal injuries received while in the defendant’s employ without the father’s consent, and also for moneys expended by the father in his efforts to effect a cure of said son.

Opinion by Walker, J. Statement.— This is an action of trespass to try title, brought by appellees, M. G. Ewer et al., as heirs of Lemuel Ewer, deceased, to recover of appellants, John 0. Gibbons et al., the heirs and administrators of Epps Gibbons, deceased, three hundred and twenty acres of land in Lamar county.

Opinion by Delaney, J.' Statement.— G. W. Williams brought this-suit against J. Mudgett for damages and injuries alleged to have been sustained by him, Williams.

Opinion by Walker, J. Statement.— Suit by appellants by injunction to enjoin Carter from further prosecuting a suit in the justice’s court on two notes, instituted by him against appellants as makers, and Gibbs, the original payee and indorser of the note.

Opinion by Watts, J. Statement.— On September 2,1,1875, appellee filed a petition in the district court of Grayson county, and amended March 16, 1880, seeking to recover from appellants $500 with interest.

Opinion by Delaney, J. Statement.— This suit was brought by appellant against appellee to cancel a patent issued to the latter and remove cloud from the title to a tract of land held and claimed by the former. Plaintiff claims that he is entitled to the land as a homestead by pre-emption. He had settled on the land with his family on October 16, 1874; believed it vacant; had it surveyed on December 16, 1874, and the field-notes returned to the land office.

Opinion by Watts, J. Statement.— Appellants James R. Moore and Octavia Moore, joined by her husband R. W. Moore, brought this suit on a promissory note and for foreclosure of a vendor’s lien. Held: the interest of B. W. Moore in the land, when conveyed by him to his wife, became her separate property. Peters v. Clements, 46 Tex., 115.

Opinion by Walker, P. J. Statement.— The assignments of error in this case pre- • sent the single question whether the evidence established, as against either Mrs. Mary Moore or Mrs. Ellen Partain, the defendants’ pleas of the statute of limitation. The facts are agreed on which must determine that proposition; there is no dispute concerning them. The plaintiffs claim by inheritance through Margaret Swift, their mother, who was the. wife of Arthur Swift, their father.

Opinion by Delaney, J. Statement.—• This was a trial of the right of property in certain goods. On April 26, 1880, appellees recovered a judgment in the county court of Galveston county against L. Herschell (husband of appellant E. Herschell) for ,$688.31, with interest at twelve per cent, per annum from May 21, 1877, besides costs, $14.25.

Caldwell county. Opinion by Watts, J. • Statement.— On March 21,1881, appellants brought this suit of trespass to try title against appellee to recover the lot described in the petition. Their claim of title is as follows: Through the foreclosure and sale thereunder of a mortgage executed by the lodge to Collins, dated January 1,1874, to secure a note of the same date and due January 1, 1875.

Opinion by Watts, J. April 8, 1879, appellant commenced this proceeding by garnishment against Engelke, claiming that Axer was then indebted to him by a subsisting judgment for $3,514, and that Engelke was indebted to Axer and had effects in his possession belonging to him, June 28, 1879; Engelke answered that by virtue of a certain contract between him and Axer, made October 1, 1878, he advanced large sums of money on cotton purchased by Axer and held the cotton under that…

Opinion,by Watts, J. Statement.— Appellee brought this suit against appellant to recover §20,000 damages for personal injuries.

Opinion by Watts, J. Statement.— Appellees sued appellants in the district court to recover $300, the alleged value of five bales of cotton, and also $300 exemplary damages for the fraudulent and malicious disposition and conversion of same. Appellants’ answer comprised a general denial, general demurrer and special answer, which latter was stricken out on general demurrer by appellees.

Opinion by Delaney, J. Statement. — There is but one question in this case: whether or not appellees abandoned the homestead. The facts, in substance, are these: Appellees acquired the property as their homestead in 1870, and lived upon it until some time in 1876. It consisted of a part of a city lot, fronting sixty feet on one street and ninety feet on another.

Opinion by Watts, J. Statement.— On August 16, 1882, W. W. Sty ron, who sued as next friend, and for the use of Millie Styron, a minor, brought this suit against appellant to recover $30,000 damages for injuries received by said minor while playing on a turn-table belonging to appellant, which injuries, it is alleged, were caused by the negligence of the appellant, in that the turn-table was neither inclosed nor so fastened as to render it safe.

Opinion by Watts, J. Statement.— Suit by appellee to recover a balance due on promissory note given for certain land in which a vendor’s lien was reserved. Appellant admitted executing the note, etc., but alleged that he purchased the land by the acre, and that there was not that number of acres in the land sold to him; also that appellee represented that there were one thousand acres of valley land in the tract, , when, in fact, there were but five hundred acres.

<p>Bond.— Sureties not liable on a tax collector’s bond, although approved by the commissioners’ court, when the same was rejected by the comptroller.</p>

Opinion by Delaney, J. Statement.— This suit was brought by appellant to recover damages of appellee for injuries received while on its train, said injuries having been caused by a defective road-bed. The evidence shows that in May, 1876, plaintiff went upon defendant’s cars at Austin, in company with a man named Hall, to go to Dallas.

Opinion by Walkek, J. Statement.—Appellee brought this suit as administrator of the estate of Joseph Pullen, deceased, against appellants, T. A. Galbraith and O. H. P. Culberson, on a note given by T. A. Galbraith, W. H. Beatty and O. H. P. Culberson to Eobert Toe on the 4th day of December, 1880, in part payment for lots 1, 2, 3, and 4, in block 5, in the Peter Kerr portion of the town of Burnet, in Burnet county; said note was fully described in the deed from Toe and wife,…

Statement.— On April 18, 1879, this suit was brought by J. D. Shaw, for the use and benefit of 0. D„ Picket, L. and H. Blum, Julia A. Kerr, M. A. Turner, B. F. Hawkins, J. F. Mulkey, and B. F„, as executor of E. Rogers, deceased, against appellant.

Opinion by Walker, P. J. Statement.— This was a suit brought by the appellees against the heirs of B. F. Logan to reform and correct a deed to five hundred acres of land which plaintiffs claim, and whose chain of title is derived through said deed. The deed was a sheriff’s deed to the land, made in the year 1845, under an execution sale to satisfy a judgment against the original owner, B. T. Logan, deceased. John T. Craddock and W. T. Coles were the purchasers at the sale.

Statement.— A full history of the origin of this case can be found in case of Byrnes et al. v. W. A. Morris ct al., 53 Tex., 213. After the case was reversed and remanded for new trial and the mandate tiled in the district court, W. 0. McGowan appeared in the case for the first time, and by his petition in intervention he claimed the land in suit, alleging that before the sheriff’s sale, under which plaintiff claimed title, he purchased the land in controversy from.

Opinion by Watts, I» Statement.— On October 12, 1883, appellee sued appellant in trespass to try title for the land in suit. Appellant pleaded not guilty. It was agreed that appellee owned the land in fee-simple on January 1, 1880. Appellant claimed title by and through a tax sale and deed, the latter being dated November 12, 1884.

<p>Appeal from Johnson county. Opinion by Watts, J.</p> <p>Statement. — Suit by appellee against appellants for damages for an alleged wrongful seizure and sale of a portion of a stock of groceries, claimed to have been purchased by appellee from W. Price, Appellants claimed that Price was in failing circumstances and largely indebted, and that the sale was made to appellee for the purpose and with the intent to hinder, delay and defraud his creditors, and this intent was known to appellee, or ought to have been so known by the use of ordinanr diligence, at the time of the sale; that the sale was not in good faith and for a valuable consideration, because the only consideration paid was a void patent right; the answer asserting facts which, it is claimed, showed its invalidity. Judgment for appellee for $699.10.</p>

<p>Appeal from Bexar county. Opinion by Watts, J„</p>

<p>Appeal from Guadalupe county. Opinion by Watts, J.</p>

Opinion by Watts, J. Statement.— Suit by appellees against appellant to recover $400 and interest from July 10, 1816, collected by appellant’s husband and appropriated to his own use, alleging that appellant was the principal legatee and devisee, and had received more than $5,000 worth of property from her husband’s estate. Judgment for $513.94. Remittitur of $19.50 entered.

Opinion by Delaney, J. Statement.— This was a suit brought by appellees to recover damages on a shipment of cattle from Bryan to Sherman, Texas, the negligence imputed to appellant being improper delay in furnishing cars as agreed and delay in the course of shipment; that an insufficient number of cars was furnished, and the cattle were improperly crowded in them; and that appellant had no stock pen or inclosure to hold said cattle in Sherman, by reason of which the cattle…

Opinion by Delaney, J. Statement.—-T. S. Horn died intestate in Taylor county in February, 1883, leaving a wife and six minor children. He had at the time of his death a homestead in the town of Abilene, and a small amount of personal property, which was not as much as would be exempt by law. His debts amounted to about $800.

Opinion by Watts, J„ Statement.— This suit was brought by appellant to enjoin the commissioners’ court of Ellis county and the road overseer from opening a second-class public road through his inclosed lands as ordered by the commissioners’ court, because the order was void in that it was made without the written consent of himself, agent or attorney, and no receivers had been appointed to assess the damages, and because the petition upon which the court acted in making the…

Opinion by Delaney, J. Statement.-— Appellants in this cause hold part of a lot which appellees formerly conveyed to W. B. Fry.

Opinion by Delaney, J. Statement.— Suit for damages for personal injuries. Judgment for $10 actual, and $5,000 exemplary, damages. The exemplary damages were afterward remitted. The indorsement on the deposition was: “Received this package from the hands of W. W. Gray, clerk, the .officer before whom the deposition was taken.

Opinion by Delaney, J. Statement.-— This was á suit on open account, brought by appellants against appellees in Wise county. The petition alleged that ¡N. Younger and C. Younger composed the firm; the former resided in Wise and the latter in Montague county. Appellees pleaded to the jurisdiction of the court because of the residence of both defendants in Montague county.

Statement.— The plaintiffs in this case are Catherine Sydeo and John Sydec. The defendants named in the original petition are Juan Duran and M. L. Labasky.

Parker county. Opinion by Watts, J. Statement.— A corporation is liable for the acts of its servants done in the course of the employment of the rightful uses as well as in the abuse of the authority conferred upon them by the corporation.

<p>Railroads.—Damages, duties of defendants.</p>

Opinion by Delaney, J. Statement.— Appellant owned a considerable body of land in the Buckner survey, in Jack county, which entire tract he sold to appellee for §3,000, giving a deed with ■general warranty. The deed describes the land by metes and bounds, but does not give the number of acres sold. The agent who drew the deed included within the boundaries three hundred acres which did not belong to appellant, and which was recovered from appellee.

<p>Appeal from Mitchell county. Opinion by Watts, J,</p>

Opinion by Delaney, J. Statement.— This was an action for distress for rent brought by appellant to recover the sum of §247. The writ was issued by a justice of the peace and made returnable to the district court. In that court appellant excepted to the petition because it showed on its face that the writ could not legally issue for a larger sum than §147, which was below the jurisdiction of the court.

<p>Appeal from Grayson county. Opinion by Walked, P. J.</p> <p>Statement.— On March 7, 1882, appellee brought this suit against appellant, alleging that he was engaged in running on one of the appellant’s cars as a brakeman from Denison to Dallas, and that while at Dallas his hand and fingers were caught and crushed, and three of his fingers rendered useless, by reason of a bent link that was in the drawhead of the car, and with which he attempted to couple the cars, not knowing its condition; that it was bent in the middle, and slipped over the drawhead when he attempted to couple with it, and his hand was caught between the drawheads and crushed, damaging him in the sum of $15,000, which accident was caused through the negligence of appellant. On October 8, 1883, appellant filed an amended answer, pleading a general denial, and specially plaintiff’s own negligence and want- of care in not inspecting and supplying a good link, or that it was' the fault of a fellow-servant in not supplying a good link, as defendant’s trains were supplied with them, and that it was appellee’s especial duty to discover defects and supply them. Case tried by a jury, and a verdict and judgment for plaintiff for $4,000.</p> <p>Appellant filed a motion for a new trial, pending which appellee entered a remittitur of $1,000, upon which the court overruled the motion.</p> <p>Appellant assigned as error: First, refusal of the court to give special charge asked for by defendant; second, the action of the court in giving special instructions as asked for by plaintiff. The fourth error assigned relates to the excessiveness of the verdict; and fifth, that the court erred in allowing plaintiff to file a remittitur in the case.</p>

<p>Citation.— Service on defendant in conformity with Revised Statutes, articles 1230-1233. The facts stated in the officer’s return of service, supported by his affidavit, not being controverted, .held good.</p>

Opinion by Walker, P„ J„ Statement.— Appellees sued for damages for personal injuries received by the falling of false bridge works constructed and being constructed on defendant’s road over Big Dry Canyon, in Picos county, December 12, 1882, he being in the employ of defendant, and engaged in said construction as bridge carpenter and assistant foreman; verdict and judgment for $5,000.

• Opinion by Walker, P. J. Statement.— The following are conclusions of fact found by the court; “That December 10, 1882, the plaintiffs, Schneider & Davis, were creditors of the firm of Engstrum & Hooper; that at that time Engstrum & Hooper owed the plaintiffs the debt sued on by them in this cause; that at that date plaintiffs had no lien on the property afterward levied on by the attachment subsequently sued out; that on that day, December 10, 1882, said Hooper sold to.

Opinion by Walker, P. J. Statement.— This is a suit by Alice Evans, on .behalf of herself as surviving -wife of Jeptha Evans, and Gammie Evans and Elmer Evans, alleged to be the minor children of said Jeptha Evans, and also on behalf of Martha Evans, the surviving mother of said Jeptha Evans, to recover damages resulting to them by reason of the death of said Jeptha Evans, which occurred November 10, 1882, while a passenger on defendant’s cars, through the negligence of the…

Opinion by Watts, J. Statement.— On March 16, 1883. appellant brought this suit against appellee to compel him, as surveyor of El Paso county, to survey for appellant the land described in the-petition, alleging that he had filed on the same under an act to provide for the sale of the unappropriated public lands of the state of Texas, and the investment of the proceeds of such sale, approved July 14, 1879, and an act to amend sections 1 and 6 of said act, approved March 11,…

Opinion by Watts, J. ■ Statement.— Appellees brought trespass to try title against appellant to recover four several tracts of land. Appellant answered by general demurrer and general denial,-and relied upon a tax deed for title. Upon the trial the court excluded the tax deed as muniment of title.

Opinion by Watts, J. 'Statement.— This was a suit brought on a note executed by the appellant to the order of appellee.

Opinion by Watts, J. . Statement.—-This suit was brought by Mary Carroll for herself and as next friend of Lewis Carroll, a minor, against ■ their former guardian, O’Connor, and W. S. Booth, the appellees, to secure by certiorari the revision and correction of certain sales of their property, made by O’Connor under orders of the count3r court and confirmed by said court.

Opinion by Watts, J„ Statement.—Appellee brought trespass to try title against appellant for the land in suit, and, in addition to the ordinary allegations, set out in substance the title through which appellant claimed the land and alleged various defects, etc., therein. The important questions presented bj1the assignment of errors are: 1. That court erred in excluding tax deed. 2. Court erred in excluding evidence of payment of taxes on the land by appellant.

Opinion by Watts. J. Statement.— This is a suit instituted by appellant against appellee, for injury received by appellant caused by failure to have lights placed on the depot platform after dark at the company’s depot at Abilene, Texas. Said depot is surrounded by a platform of from five to eight feet in height, across and along which a person has to walk in going to and from the depot.

Opinion by Walker, J. Statement.— This was a suit brought by appellee against the appellant, on three promissory notes amounting to over $600.

<p>BeMedy, where property in the hands of a constable by virtue of a distress warrant is taken by sheriff under other process.</p>

Error from the county court of Barker county. Opinion by Walker, J. Statement.— This was an injunction suit brought by defendants in error and B. A. Mathews and the sheriff of Parker county to try the right to certain personal property levied upon by said sheriff, at the instance of plaintiffs in error, and .to enjoin the sale of said property, and for damages for levying upon the same. • On the 12th day of May, 1879, the sheriff of Parker county levied an execution, issued…

Opinion by Watts, J. Statement.—■ Appellant brought this suit June 28, 1872, against appellee to recover upon a bond for $50,000 and interest.

Error from Grayson county. Opinion by Delaney, J. Statement.— This was an action of trespass to try title, filed by defendant in error January 18, 1875, to recover of plaintiff in error a tract of land in Grayson county.

<p>Evidence — Practice.— Objection to the form in which an offset is presented should be disposed of on exceptions, so that the defendant might have the privilege to amend in that particular.</p> <p>Verdict contrary to evidence. — Where judgment below is clearly for an amount less than called for by the evidence, cause will be reversed and remanded.</p>

Opinion by Delaney, J. Statement.— This suit was filed June 30,1875, by appellants against Thomas P. Atkinson and Peter W. Walton, Jr., late partners under the firm name and style of T. P. Atkinson & Co., alleging that on the 31st of October, 1874, plaintiffs sold to said firm a quantity of paints to be used upon their hotel in the town of Plano, in Collin county, known as the Durand Hotel, and that the paints so furnished- were so used by said firm.

Opinion by Walker, J. Statement.— This was a suit brought by J. B. Hart against E. Y. Tompkins for damages resulting from the refusal of the defendant to carry out the contract between the parties, under which the plaintiff was employed for the period of one year by the defendant in the capacity of salesman in the business of the latter.

Ooryell county. Opinion by Watts, eL Statement.— Sneed owned a tract of six hundred and forty acres of land in Ooryell county, upon which he was residing with his family. Hammack held a note against him for about $500, part of the purchase money of the land.

Opinion by Walker, J. Statement.— This suit was filed on the 14th of April, 1876.

Opinion by Watts, J. ■ Statement.— Appellees instituted this suit against appellants October 21, 1874. The petition is in the ordinary form of trespass to try title, and seeks to recover five hundred and nineteen acres of land situated in Lamar county. The plaintiffs sued as the children and heirs of Chas. Logan, deceased, who, it is alleged, was the brother and sole heir of Bennett T. Logan, deceased.

Washington county. Opinion by Delaney, J. Statement.— This is an action of trespass to try title, filed by appellees as heirs of Bestor Olay, to recover of appellant a quarter of a league of land in Washington county, known as the Hickory Point place. The case has already been twice before the supreme court, and its previous history will, so far as reported, be found in 26 Tex., 24-31, and 35 Tex., 509-34.

Opinion by Walker, J. Statement.— This was a suit brought by the appellee against the Falls County Turnpike Road & Bridge Company.

Opinion by Watts, J. Statement.— Marx & Kempner and Locke & Wilkins had instituted suits in the district court of Galveston county against Bear Bros. & Hirsch, residents of McLennan county, and caused writs of attachment to issue to McLennan county, by which the property in question had been seized, after which Boot & Dow 'and Milly & Porter instituted suits against the same defendants, and also obtained attachments which were levied upon the property.

Opinion by Delaney, J. Statement.— This suit was brought in the district court of Uvalde countjq -by appellant against appellee, to recover the sum of §763.

Opinion by Delaney, J. Statement.-— This suit was filed May 4,1871, by appellee againts appellants, Alexander Y. Sewell, Thos. Ritter and his wife, Sarah Yienna Wilson and Rebecca Cleveland, heirs at law of Thos. Sewell and Frances Sewell, his wife. The object of the suit was to remove a cloud from the title to certain lands held in Dallas county by plaintiff.

Qpinioii by Watts, J. Statejient.—- Appellants, Le Gierse & Go., as plaintiffs below, brought this suit on August 25, 1881, in the form of an action of trespass to try title, divest and vest title, etc., against Getzendaner & Ferris and others, defendants be low, to recover title to certain town lots in the town of Waxahatchie, Ellis county, Texas, setting out a full description of said lots, and claiming title to same by virtue of a sale under an execution issued out of the…

Opinion by Walker; J. Statement.— This suit was brought by appellants, who reside in Hew York city, against appellees, who reside in Galveston, Texas, June 22, 1875, on four promissory notes aggregating 82,634.55, subject to a 'credit of §790.36, and an attachment was run on nine casks of merchandise alleged to have been secreted in Houston, Texas, by appellee.

Opinion by Walker, J. Statement.—William J. and Thomas A. Montgomery brought suit on the 27th of June, 1876, against A. E. Morris on a note for §248, payable to the plaintiffs, made by the defendant, dated February 26, 1875, due on the 1st day of ¡November, 1875, which note recited on its face that the consideration was a bill for lumber purchased of plaintiffs’ a-gent to build a house occupied by him as a homestead.

Opinion by Delaney, J, Statement.— This suit was brought by appellants, Jesse R. Bond and Elizabeth, his wife, against appellees, A. A. Ellison, sheriff, S. A. Bruce, his deputy,- and A. Lichen-stein, to recover damages for an alleged wrongful levy and sale by the sheriff, under an execution in favor of Lichen-stein, of certain household and kitchen furniture belonging to plaintiffs. The petition was filed August 12, 1875. laying the damages at $1,000.

Opinion by Watts, J. Statement.— Mrs. Boehme, the appellee (who was the administrator of her son, Victor Boehme, deceased), brought this suit against the appellants, July, 1876, for the purpose of establishing her right to lot No. 91, in New Braunsfels, which she claims was purchased by her son Victor with her money, who had taken the deed in his name. Also claiming the same as her homestead on the ground that she was a surviving constituent of Victor’s family at his death.

Opinion by Delaney, J. Statement.— The original petition in this case -was filed June 7, 1872, by appellant, against appellee, Galbraith, alleging that defendant, as plaintiff’s agent, had sold for him a tract of one thousand one hundred and seven acres of land in Fannin county for about $6,000; that he had collected a large amount of money and appropriated it to his own use, except the sum of $100, gold, which had been received by plaintiff, and prays for a judgment against…

Opinion by Delaney, J. Statement.— Appellants, E. B. Smith, J. W. Townsend, Joe H. McCain and Elizabeth Wood, plaintiffs below, brought this suit in the district court of Limestone county, on- October 5, 1875. and on the 7th- day of March, 1878, tiled their “ amended original petition,” which, under rule 14 of the district. court, supersedes the original petition, against W. G-.

Opinion by Watts, J. Statement.— One of the contested issues in the case as presented in the court below was as to whether or not there bad been such alteration or change in the original contract made by appellee and J. A. Leonard as would release appellant, who was surety on the bond upon which this suit is based, and upon that issue the court charged the jury as follows; “ If you believe from the evidence that after the execution of said contract and said agreement to said…

Opinion by Walker, J. Statement.— The appellant’s first ground of assigned error is that “the court erred in sustaining appellees’ démurrer to appellant’s -special plea, denying the validity of the purported obligations sued upon, because the same were not sealed with the seal of the county court, pursuant to the act of August 13, 1870, and charging that the same were void ab initio, and in striking out said plea.” The purport of the special plea referred to above is, in…

Opinion by Watts, J. Statement.— On ¡November 9, 1882, Cooke filed his petition in trespass to try title against the appellees in the district court of Cooke county, claiming under grant made to Marcelline Lazarine, dated March 26,1834. The defendant claimed under the republic and state of Texas by patents issued at different times. The case was removed by change of venue to Collin county.

Opinion by Watts, J„ Statement.— This case was decided by the supreme court in 1877. The judgment was then reversed because the court below excluded the evidence of the wife of appellant offered in his behalf. At the same term a rehearing ivas granted, and the case is now before the court for disposition.

Hays county. Opinion by Walker, J. Statement.— This suit was brought by Hutchins against English to recover possession of a tract of land, in form of an action of trespass to try title.

Opinion by Delaney, J. Statement.— This suit was brought by appellant against appellee to recover a half interest in a tract of land of one hundred and thirty-three acres in Bell county, and for partition. The petition was filed August 29, 1877. October 5, 1877, defendant answered by a general denial and plea of not guilty. March 26,1878, W. J. McDowell intervened, claiming a half interest in the land.

<p>Appeal from Navarro county. Opinion by Watts, J.</p> <p>Statement.— On May 6, 1879, appellee brought this action of trespass to try title against appellant. The property sought to be recovered was described as lot No. 4, in block 241, situated in Corsicana. Appellee claimed the same by and through a conveyance from- Mooney and wife: Appellant claimed that he had previously purchased the lot from Brennan as the agent of Mooney and had paid the purchase money therefor, and that Mooney had ratified the same and executed a deed, but that the same had not been delivered; that he had long been in possession of the property, and had placed valuable improvements upon it; that his possession gave notice to Callahan of his rights, etc,, and in the alternative prayed to recover of Mooney the money paid and that he be served with a copy of the answer.</p> <p>Appellee replied denying that appellant had paid money for the property, alleging that Mooney had made a deed and delivered it to his attorney with instructions not to deliver it to appellant until he paid the purchase money, which he failed to do, and that Mooney thereupon withdrew the deed and sold and conveyed to appellee the land, etc. Trial, verdict and judgment for appellee, from which this appeal was taken. The material error is in the charge of the court and is indicated by the opinion.</p>

<p>. Appeal from Grayson county. Opinion by Watts, J.</p>

Opinion by Walker, J. Statement.— Plaintiff, F. M. Goode, is a resident of Grayson county, Texas. Defendant, the Life Association of America, was a corporation, organized under the laws of the state of Missouri, for the purpose of carrying on a life insurance business, and having its domicile in the city of St. Louis, in said state.

Opinion by Delaney, J. Statement.— Appellee, as plaintiff below, instituted this suit May 29, 1879, against appellant, J. R. Johnson, and Melvin Herring to remove a cloud from the title to six hundred and forty acres of land situated in Donley county, Texas; to quiet appellee in his title to said land; to cancel and annul certain conveyances thereto; to enjoin defendants below from using said conveyances as muniments of title to the land, and from attempting to dispose of or…

Opinion by Walker, J. Statement.— This suit was brought by S. W. Bigham against J. H. Hubbard to recover the amount of two promissory notes of $400 each, with ten per cent, interest from 31st of March, 1875, which plaintiff alleges were given by defendant as part payment of' three hundred acres of land sold by plaintiff to defendant, which land is described in notes accordingly, and as being a part of the J. P. Irvine surve°y in Coryell count}7, on Brown’s Creek.

Error from Dallas county. Opinion by Watts, J. Statement.— Plaintiff in error brought this suit against defendant in error to recover damages for alleged injuries to his lot and store-house thereon, situated in the city pf Dallas, by reason of the action of the city council in having caused the grade of the street in front of his property to be raised, and also by reason of having caused to be filled up a natural outlet or channel for the flow of water, which channel was…

<p>Lien, vendor’s.— Two' parties holding notes secured by vendor’s lien on the same land may join in an action to recover the amount due upon tlieir respective notes and to foreclose the lien.</p> <p>Pleading — Action — Joinder.— Where the- suit is brought by the payee of a note, and it is alleged that the note was executed and delivered to him, it is not necessary to allege that he is still the owner of and holder of the same. All parties having an interest in the subject-matter may join in the same suit, although they may claim different interests.</p> <p>School land — Sale— Lien.— The purchaser of school land may sell and convey the same upon credit and foreclose his lien thereon while the title remains in the state. Such foreclosure only affects the interest of the defaulting purchaser.</p>

<p>Negligence.“A question of fact in each case.</p> <p>Damages.—A father cannot recover for mental and physical suffering of his infant child.</p>

<p>Master and servant.— An agent considered as master to another employee, when.</p>

Opinion by Watts, J Statement.— November 21, 1882, Lasater brought this suit of trespass to try title against Jones to recover the land described in the petition, deriving .title as follows: Bond for title from himself to Jones, dated January 18, 1881. Judgment in his favor and against Jones on purchase-money notes and foreclosure of vendor’s lien.

<p>Appeal from Dallas county. Opinion by Walker, J.</p>

Opinion by Watts, J. Statement.— FTovember 24,1883, Moses instituted this suit against the company'on a fire insurance policy, alleging the execution of the policy in the sum of $750, and the total destruction of the property while the policy was in force; also, that Thos.

Opinion by Watts, J.. Statement.— January 2,1882, appellees brought this suit against appellant to establish their right to an easement or private way over certain lands, to compel him to remove obstructions therefrom, and to recover damages for obstructing the same, claiming that Joseph Haby, deceased, had on the 21st day of November, 1854, divided among his six children his third of a .league of land; that the uplands were divided into six house-lots, and the valley lands…

Opinion by Walker, J. Statement.— The plaintiff’s claim of lien as a material-man is based on an open account and affidavit to the same recorded January 4, 1875. The deed of trust under which Oarlew claims was recorded April 28,1871.

Opinion by Watts, J. Statement.— December 22, 1882, appellees brought this suit against appellant to recover the land described in the petition, and for damages resulting to the land and grow», ing wheat by reason of the trespass.

Opinion by Delaney, J. Statement.— This suit was upon a mercantile account. Plaintiffs, Carter Bros., by their agent made affidavit reciting that the defendants “have disposed of their property, in whole or in part, with the intent to defraud their creditors, and that they are about to convert their property into money for the purpose of placing it beyond the reach of their creditors,” They gave bond, and attachment issued and was levied on property of defendants.

<p>Action.— The mere fact that goods are In the custody of the law is not sufficient to sustain an action for damages for the levy upon and sale of such goods under execution.</p> <p>Debtor and creditor.— Assignment law of 1879 permits debtor in good faith to make a valid transfer of his property to one creditor in payment of a debt to the exclusion of other creditors.</p>

Opinion by Watts, J. Statement.— This action of trespass to try title was brought by appellants, tp which appellee, in addition to the plea of “not guilty,” interposed the defense of five and ten years’ limitation. The only reply to this defense was a special denial, which had no other effect than if the reply had been by general denial.

<p>Appeal from Wise county. Opinion by Walker, J.</p>

Opinion bji Delaney, J. Statement.— This suit was brought by appellant against appellee, March 1, 1881. lie alleged that he and defendant, Amanda C. Roberson, were married in Kentucky in 1844; that they lived together in that state until the year 1868, when she wilfully, voluntarily and without any cause or provocation abandoned his bed and board, and had never returned. He also avers that she left him with the intention of perpetual abandonment.

<p>Appeal from Grayson county. Opinion by Watts, J.</p> <p>Statement.—Appellee, by next friend, brought this suit against appellant, March 2, 1880, to recover §20,000 damages for injuries received by him while crossing appellant’s railroad track at the city of Denison, November 7,1879, by which he lost a leg and received other injuries. Appellee answered September 16, 1880, by general denial, and also • that the injuries were directly caused by the negligence of the appellee. The cause was tried April 28, 1883, and a verdict returned and judgment rendered against the appellant for the sum of §6,125. The errors deemed essential are stated in the opinion.</p>

Opinion by Walker, J. Statement.— This was a suit to try the right of property to a certain gin-house, instituted by R. K. Chatham against S. D. May.

Opinion by Watts, J. Statement.— Suit was filed in Atascosa county by W. 0. Daugherty against John II. Slaughter upon a debt due by Slaughter to Daugherty. Service on Slaughter was made by publication, he being a non-resident of the state.

Opinion by Watts, J. Statement.— Campbell sued appellees upon a note for $500, dated June 9, 1877, due on or before the 1st of December next thereafter, and payable to Campbell & Boswell or bearer.

<p>Appeal from Grayson county. Opinion by Walkek, J.</p> <p>Statement.-^-This suit was brought in June, 1874, by the appellees against the appellants, as husband and wife, on an account for lumber sold and delivered by them to the husband, amounting to $294.42, for the purpose of constructing a dwelling-house and outhouses on two certain lots in the town of Sherman, the title to which was in Mrs. Blevins, the wife. The plaintiffs alleged that it was not known to them at the time they furnished the lumber that she owned the lots; that her title to them was not then recorded, and that the lumber was used in the construction of said houses with the knowledge of the wife, and that the lots were rendered more valuable by the improvements, etc. Plaintiffs allege that they fixed their lien upon said property within the time and in the mode prescribed by law, setting forth the facts. Plaintiffs prayed to subject the houses and lots to their lien, and for general relief. Defendants filed a general demurrer, w'hich does not. appear to have been relied upon, as no action was had upon it by the court, nor to have called it to the court’s attention.</p> <p>The plaintiffs’ account was attached as an exhibit to the petition and its correctness sworn to. They also introduced in evidence their sworn and duly recorded statement of the verbal contract between themselves and Blevin for the sale of the lumber, which had been recorded in the proper office in order to fix their statutory lien. This instrument recited that the lumber was purchased and used by Blevins as stated in plaintiffs’ petition. The plaintiffs also proved that the house and lots described were the homestead of defendants and were só at the time the lumber was furnished. Verdict for the plaintiffs for the amount with interest, and finding the property subject to plaintiffs’ lien. Judgment accordingly rendered decreeing sale to be made. Defendants appealed and assigned as error the refusal of the court to give instructions asked, for by defendants and admission of certain evidence over their objections.</p>

Writ of error from Williamson county. Opinion by Walker, P. J. Statement.— Plaintiff in error sued defendant in error on the 1st of December, 1876; on a promissory note executed by defendant to plaintiff for part purchase money for tract of land described in petition.

Opinion by Watts, J. Statement.—Appellees, plaintiffs in the court below, brought this action against James H. Tuttle, sheriff of Grayson county, and the sureties on his official bond.; appellees alleging that the sheriff, by his deputy, had attached and sold certain blooded cattle and hogs, the property of the appellees, of the value of $2,400, and that E. M. Lyon, against whose property the attachment was sued out, and to pay whose debt the seizure was made, was not the…

Opinion by Walker. P. J. Statement.— The appellant brought this suit against the appellee for §10,000 as damages for causing the death of her husband in running over him on its track.

Opinion by Quinan, J, Statement.-— The controversy in this case is whether the land sued for is within the boundaries of the Cervantes grant. The patent issued and the description of boundaries in it is as follows: Beginning at the B. E. corner of Jos. Williams’ 640 acre survey in O. Berdle’s S. line; thence S. 71 E. 697 varas to the S. E. corner of the Holfcsman survey in the W. line of B. Strunk’s 640 acre survey; thence S. 19 deg.

Opinion by Walker, F. J. Statement.— This suit was brought by the appellee on a note of $600 against the appellants. The defendants allege that the note was given for the purchase of a mare bought by Crutchfield and Howard from the plaintiff for a race mare, on March 7, 1874; that the plaintiff represented the mare uninjured for racing purposes, and that they bought her relying upon said representations.

Opinion by Walker, P. J. Statement.— Appellant brought an action of trespass to try title in the district court of Fannin county, against appellee, for three hundred and twenty aeres of land situated in said Fannin county, claiming said tract of land under and by virtue' of a certificate granted by the state of Texas to the heirs of Solomon Watson, deceased, for six hundred and forty acres of land. The appellee presented two issues; 1.

Galveston county. Opinion by Watts, J. Statement.— Appellee instituted this suit against tire appellant on the 7th day of August, 1874, to recover the possession of a certain two-story wooden house and cookhouse, cistern, back-house and fencing, and all tenements situated on lot No. 12, block No. 507, in the city of Galveston.

Writ of error from Navarro county. Opinion by Watts, J. Statement.— This was a suit instituted by Heidenheimer Bros, to the March term, 1874, of the district court of Navarro county, against J. H. Brent as principal, and W. Y. Davidson, J. A. Gowan, B. B. Johnston, I. B. Taylor and IT. V. ITurlock, as sureties on the official bond of J. H. Brent as sheriff of Navarro county.

Opinion by Watts, J. Statement.— On the 87th of February, 1855, F. W. Doebbler made an affidavit before the then chief justice of Gillespie county, under the pre-emption law of February 13, 1854, stating that he was on that day a resident of this state, and that he had settled on Grape Creek, in said county, in good faith, on a piece of land which he believed to be vacant and unappropriated, and “ that he makes this declaration for the purpose of securing the land to which…

Opinion by Walker, P. J, Statement.— This suit was filed on the 17th of June, 1876, by plaintiffs in their right and capacity as heirs of W. F. Neal, deceased, alleging that they are the brothers and sisters (joined by the husbands of such of them as are married women), and the descendants of such brothers and sisters, and the only surviving heirs of W. F. Neal, deceased, except Alice F. Neal, who was sued in the original petition by the name of Alice F. Neal, but having…

Opinion by Quinan, J. Statement.— At the December term, 1875, of the district court of Guadalupe county, appellee brought suit against appellant for damages for trespass upon his (appellee’s) land, and taking timber and rock therefrom, and building a pen or house thereon, etc., by which he was damaged in various sums, to wit, $400 by treading down the grass, tearing up the soil, cutting down the trees and building the pen or house; and $15 by hauling off his rock.

Opinion by Quinan, J. Statement.— This suit was brought by Drake to recover of Mrs. Gilleland damages for horses driven bjT McLaren, her agent, out of the plaintiff’s range and branded in Mrs. Gilleland’s brand, and which by the wrongful taking of them have become a total loss to him.

Opinion by Quinan, J. Statement.— This was a suit in trespass to try title to about thirty-five acres of land in Dallas county. It was in fact a controversy over disputed boundaries. Griffin owned the northern part of the Freeman survey; Rowe claimed the southern half of the Rowe survey. The lands adjoined. Griffin alleged that Rowe was in possession of a strip off the north side of his land about ninety varas wide and one thousand nine hundred varas long.

Opinion by Watts, J. Statement.— Petition filed by plaintiffs below, appellees here, to the March term, 1874, alleging ownership in certain land therein described, a part of a tract of land, the original survey containing two-thirds of a league, and one labor; that defendants disturbed their peaceable possession, by claiming and publishing in the neighborhood that the boundaries claimed by plaintiffs are not the true boundaries of their possession; that plaintiffs’ northern…

Opinion by Walker, P. j„ Statement.— Suit by the appellees against the appellant for damages alleged to have ensued to plaintiffs, caused by the negligent delay of defendant’s railroad to deliver at their destination, to wit, Dallas and Hutcheson, twelve cases of fruit trees, shipped from Galveston on said railroad by the plaintiffs, to be conveyed to said points of destination.

Opinion by Quinan, J. Statement.— The following statement from the appellees’ brief is a fair statement of the nature of this action: This was an action of trespass by W. It. Story against Anton Horn, commenced January 21, 1874.

Writ of error from Palo Pinto county. Opinion by Walker, P. J. Statement.— This suit was instituted by Wesley Young against G. W. Greer on May 2, 1872, in the district court of Palo Pinto county, on a note made by said Greer, and payable to II. W. Young, bearing date November 13, 1S68, payable twelve months after date, for $1,707 United States currency, which may be discharged with $1,200 coin in gold or silver, bearing ten per cent, interest per annum from date.

<p>Appeal from Guadalupe comity. Opinion by Watts, J„</p>

<p>Appeal from Lee county. Opinion by Watts, J".</p>

<p>Pbiobitt of notes secured by vendor’s lien. Costs of administration not payable before distribution.</p>

<p>Appeal from Fannin county. Opinion by Watts, J.</p>

<p>Appeal from Gollin county. Opinion by Delaney, J.</p>

<p>Appeal from Travis county. Opinion by Walker, P. J.</p>

<p>Surviving partner — Intervenor— Charge op court.—All that is required to authorize a party to intervene and have an adjudication upon his rights is to show, by proper averments, that he has an interest in the subject-matter of the suit, and that that interest can be affected by the decree.</p> <p>Contribution—Evidence.—The doctrine of contribution is, that the persons not paying are liable to" the person who pays the debt for which they are jointly bound, for the actual amount paid by him; and evidence can be introduced to show the actual cost to him.</p>

Opinion by Watts, J. Statement.— This is a suit brought by the plaintiff, T. B. Hogg, against the defendant, the Houston & Texas Central Bailroad Company, for damages resulting from the loss of a quantity of fruit trees shipped by the plaintiff on defendant’s road; said loss being occasioned, as alleged by plaintiff, by the negligence of defendants in forwarding said trees and in delivering the same to the plaintiff’s agent at their place of destination.

Opinion by Watts, J. Statement.— This was a garnishment proceeding commenced in the district court of Montgomery county, on the 19th day of June, 1874, by plaintiff in error against defendant in error. The affidavit is in substance as follows: Hutcheson, on November 22, 1866, recovered a judgment against Clipper in that court for $5,728.80.

Error from Collin county. Opinion by Watts, J. ■ Statement.— The following statement is from the brief of plaintiff in error and is substantially corrects Defendant in error, Martha A. Shaw, filed her petition in the district court of Collin county on the 14th of December, 1878, in her own right, and as next friend and natural guardian of her minor children, Elizabeth and John Shaw, alleging, in substance, that the said Martha Ann Shaw was surviving wife, and Elizabeth and…

<p>Damages fob injuries.</p> <p>Contributory negligence.—If risk is taken voluntarily by a passenger, without fault of the company, etc., it is contributory negligence.</p> <p>Assignment of errors.—An assignment of errors which has reference to a supposed error of law in the charge of the court, if it is obnoxious to the established rule as being too vague and general in failing So point out the special ground .of objection to it, will not require a. critical revision of the charge unless the error is of a controlling character, plainly obvious on an inspection of the charge.</p> <p>Practice.™ Where, upon the whole case, the verdict could not ‘ have been different under the law and evidence, the giving or refusing instructions will not necessarily work a reversal of the judgment.</p>

Opinion by Watts, J. Statement.— Appellee instituted this suit against appellant, July 18, 1870, to recover a certain tract of land situated in Eavarro county. The form of the action was trespass to try title, and appellee also sought therein to remove a cloud from his asserted title.

<p>Appeal from. Panola county. Opinion by Walker, J.</p>

<p>Charge.— Where it is clear from the evidence that a different verdict could not have been properly rendered, an erroneous charge will be held merely an abstract errpr, affording no ground for reversal.</p> <p>Evidence.—Eefusal to -admit evidence which, if admitted, could not have caused a rendition of a different verdict, no ground for reversal.</p> <p>Exemption.— Deed of trust will not exempt property described in it from seizure and sale under legal process to satisfy other debts subject to said deed of trust.</p> <p>Mortgage is but a security, and the title remains in the mortgagor, subject to be divested by foreclosure of the mortgage.</p>

Opinion by Quinan, J. Statement.— This suit in trespass to try title was brought by Walker against Lenon for the recovery of land which is described in the petition as “four hundred acres of land, being a part of the Géorge Morgan headright league; . . . the said four hundred acres being known and designated in the partition gf said league among the heirs of said Morgan . . . - as lot ¡No. 12, and is bounded on the south by a five-league survey in the name of T. J. Chambers,…

Statement.— This suit was brought by the plaintiff in error against Jennie Thompson, on an account for goods, wares, lumber and merchandise alleged to have been sold by plaintiff to her through and at the request of her agent and attorney in fact, John Lear.

<p>Wrongful levy by sheriff—Damages.— Where a sheriff, who is being sued for damages for an illegal seizure of. property, pleads that the seizure was made under an execution against a third, party, held, that his plea was properly stricken out on motion of plaintiff; that he could not justify the seizure of plaintiff’s property under an execution against a third party, but would still be responsible for the damages he had done.</p> <p>Evidence,—Oral testimony not admissible to prove that A. H." Beed owned the AR brand. Book of marks and brands better</p>

Opinion by Watts, J. Statement.— Thomas Goodbread died intestate December, 1872. At the time of his death he left surviving two married daughters, then living with their respective husbands; also Ms widow, Malinda Goodbread, and two minor grandchildren, Laura and Douglas Yan Dorn; the last named was living with deceased at and before his death. He left a personal estate valued at about $2,450, his separate property. He had no other property and no homestead.

<p>Trespass "to try title — Evidence.— It is not sufficient to reverse a judgment simply because the court below may have erred in its rulings as abstract propositions of law, or because it may have given reasons not deemed sufficient. But the com- . plaining party must make it appear also that he has been deprived of some right or has been injured by the erroneous ruling.</p>

<p>Appeal from Navarro county. Opinion by Walker, J.</p> <p>Statement.— The briefs of counsel on both sides being under the “New Bules,” and the statement of the case made by the counsel for the appellants being .agreed to as correct by the counsel for the appellee, we shall adopt such statement as the same has been presented in the appellants’ brief, and it is as follows:</p> <p>The appellants brought suit in the district court of Navarro county on the-day of-, A. D.-, against appellees to annul a contract made on October 13, 1876, by and between the Navarro Publishing Company and J. W. Fishburn, by virtue of, which contract Fishburn got possession of the paper published by the Navarro Publishing Company, with its press and material, type, etc.; also for the recovery of a job press, with its type and material, which was delivered to the said Fishburn by the Navarro Publishing Company under said contract, that the same might be sold for the benefit of the St. Louis Type Foundry, from whom the said press had been purchased by the Navarro Publishing Company and not paid for. Or in case this relief is not granted, then, plaintiffs pray for a judgment for the sum of $2,000 against Fishburn, being the value of and the amount agreed to be paid by Fishburn for the Corsicana Index, job press, material, etc.</p> <p>The contract is sought to be annulled on the ground of fraud- on the part of Fishburn in inducing the contract, as well as his fraudulent acts in wilfully destroying the value of the security given by him to secure the purchase money of paper, press, etc., and the payment of the indebtedness to the St. Louis Type Foundry Company.</p> <p>Tarver & Miller, the defendants, are purchasers from Fishburn with notice.</p> <p>A general demurrer was filed to the petition by defendants, which was sustained by the court, whereupon plaintiffs declined to amend and judgment was entered for de-. fendants, to which plaintiffs excepted and gave notice of appeal.</p> <p>The petition alleged that on the 13th of May, 1876, the Navarro Publishing Company were the owners and publishers of a certain newspaper in Navarro county, known and styled as the Corsicana Weekly Index, w.hich said paper was published weekly, having °a wide circulation in Navarro county and surrounding counties; also with a pajring subscription list and advertising patronage of the value of §200 per month; that the Navarro Publishing Company purchased from the St. Louis Type Foundry Company, on or about the 1st day of April, A. D. 1876, the job press, with type and material, for which the Navarro Publishing Company agreed to pay the sum of §775.25; that about the 13th day of October, 1876, while the Navarro Publishing Company was still indebted to the St, Louis Type Foundry in the aforesaid sum of money, the said Navarro Publishing Company received from defendant Fishburn a proposition to purchase the Corsicana Weekly Index, with its job press, type, material, properties, etc.; that the Navarro Publishing Company, earnestly desiring to obtain the means of paying the St. Louis Type Foundry Company, or to provide a security for its payment,- and having fully informed the said Fishburn of the indebtedness as aforesaid, and their desire to pay or secure the same, did enter into a contract with Fishburn, in which Fishburn agreed to purchase the newspaper, job press, etc., for the sum of §2,000; that the said Fishburn, having no money to pay cash, agreed to execute certain instruments in writing, each for the sum of §50, payable one-half in twelve months and the other half in twenty-four months from date, payable to the Navarro Publishing Company or bearer. The bearer was entitled to have one-half of his account in advertising, job printing, etc., credited upon the note or instrument until paid.</p> <p>That the Navarro Publishing Company was to receive a sufficient number of these instruments to aggregate the sum of §2,000; that the said Fishburn agreed to guaranty their negotiability and ready sale by so conducting the "paper as to extend its influence as an advertising medium as to create a demand for these advertising notes among all classes who desired to advertise; that by his conduct of the paper the Navarro Publishing Company could easily sell the paper or advertising notes and raise the money to pay the St. Louis Type Foundry Company; that the Navarro Publishing Company, induced and relying upon the promises of said Fishburn, agreed to accept forty of said written instruments, payable as aforesaid, and did accept them and delivered to said Fishburn the Corsicana Weekly Index, with the job press, type and material of all kinds pertaining thereto; that the Corsicana Index, or rather the Navarro Publishing Company, delivered twenty of said instruments to the St. Louis Type Foundry Company for sale, to secure and discharge the indebtedness as aforesaid, and the Navarro Publishing Company retained the balance. The petition alleges that these written instruments given by the said Fishburn were at once placed on the market by plaintiffs as contemplated by all parties to the contract, and the said written instruments or advertising notes could not be disposed of for any sum of money whatever. The petition alleges that the failure to sell said notes arose from the failure of Fishburn in any manner to carry but his contract in the conduct of the paper, or to perform any of the many promises set out in the petition; but, on the contrary, he allowed the newspaper to depreciate in credit, to wit: The Corsicana Weekly Index, and its influence as an advertising medium, to be destroyed; that no one would advertise in said Corsicana Weekly Index but those merchants who furnished said Fishburn and his employees with supplies, and only in payment of merchandise so obtained.</p> <p>The petition further alleges that the said Fishburn, contrary to his promises, did wilfully and fraudulently destroy the negotiability and sale of said advertising notes, by representing on the streets of Corsicana that parties desiring to advertise in his paper could make better terms by direct application to him than could be obtained by purchasing said notes. That these fraudulent representations and the failure of Fishburn to fulfill any of the promises by him made to induce said contract, rendered said advertising notes absolutely valueless in the hands of plaintiffs. That the said Fishburn has obtained the property of plaintiffs without consideration, and held the same until 1878, when he sold the Corsicana Weekly Index, with the job press, type and material, to his co-defendants, Miller & Tarver, who, it is alleged, purchased with notice of all equities, etc. The relief prayed for is set forth above in statement of the case.</p> <p>Plaintiffs assign errors as follows:</p> <p>1. The court erred in sustaining defendants3 general demurrer to plaintiffs3 petition.</p> <p>2. The court erred in holding that parol evidence was inadmissible to show the circumstances, inducements and objects with -which the contract of purchase was made.</p>

<p>Non-joinder.— Where non-joinder of parties plaintiff appears from the allegations in the petition, the objection may be taken by exception.</p>

<p>Appeal from Ellis county. Opinion by Watts, J.</p> <p>Statement.— The appellees, F. W. Chandler and B. B. Townsend, as executors, and Angelina Townsend as executrix, of the last will and testament of Nathaniel Townsend, deceased, brought this suit of trespass to try title against appellant, J. C. Bushing, December 9, 1868, to recover the three hundred and seventy-six acres of land described in the pleadings, and at the same time applied for and obtained a writ of injunction, which was afterwards dissolved and need not further be noticed. The appellant answered February 26, 1869, claiming the land and setting up the three, five and ten years’ limitation. Appellees filed an amended petition May 30, 1870, claiming that for a long time prior, and at the time of the institution of this suit, they were seized and possessed of all of the said land except one hundred and sixty acres, which appellant claimed as a homestead; that appellant, after the institution of "the suit, had entered upon and ejected them, etc.</p> <p>May 3,1871, appellant filed an amended answer, pleading general denial, not guilty, the three, five and ten years’ limitation, setting out his title, and specifically his occupancy and the occupancy of those under whom he claims.</p> <p>May 7, 1872, appellants filed a replication to appellees’ answer, setting up limitation in substance as follows (except the field-notes, which are not copied), to wit: “Said defendant and the person under whom he claims have not had peaceable possession of the land claimed by him in his answer; for that they say that on, to xvit, the 29th day of August, 1851, one B. F. Wright instituted suit in the district court of Ellis county, Texas, against Lewis Godard, the husband of Jane Godard, and the head of the family, for the recovery of the possession and for title to one thousand acres of land, embracing the land claimed by the defendant, and that afterwards on, to wit, the 26th day of April, 1854, judgment was rendered in said case in favor of plaintiff against the administrator of said Lewis Godard, deceased, et aln for the recovery of said one thousand acres, described as follows: . . .</p> <p>“And it was ordered that a writ of possession issue, commanding the sheriff of Ellis county to deliver the possession of said land to said plaintiff; and your petitioners charge that afterwards on, to wit, the-day of --•, 1850, the estate of Lewis Godard, deceased, as well as Jane Godard, the wife of said Lewis Godard, was actually dispossessed of said land, which embraced almost the entire tract claimed now by defendant, and they were so dispossessed down to the date of purchase by defendantand your petitioners further state that the statutes of limitation, by the constitution of this state, were suspended from the 28th day of January, 1861, until the 30th day of March, 1870.”</p> <p>On the same day appellant filed special exceptions to the replication of appellees, and by amendment corrected the description of the three hundred and seventy-six acres of land claimed by him.</p> <p>The cause was called for trial the same day and the special exceptions of appellants to the appellees’ replication were sustained by the court and an order was entered to that effect; appellees excepted to the order, gave notice of appeal and carried the same to the supreme court, where jurisdiction was entertained, and September 15, 1873, the order or judgment was reversed and the cause remanded. 58 Tex., 591.</p> <p>Without any change in the pleadings the same was tried before a jury October 1, 1874, and the trial resulted in a verdict and judgment for the appellees and against appellant for the three hundred and seventy-six acres of land and costs of suit. Appellant filed a motion for a new trial, which was overruled, etc., and the case is before the court on appeal.</p> <p>The third assignment of error alone can be considered under the statute, and that is as follows:</p> <p>3. “ The court erred in overruling the defendant’s motion for new trial.”</p> <p>Appellees derive title as follows: Grant from Ooahuila and Texas to Nathaniel Townsend, as assignee of Bafael de Pena, dated October 2, 1834, for eleven leagues. It was admitted that Townsend was dead and that appellees were his executors.</p> <p>Appellant derived title as follows:</p> <p>1. Patent to Francis Slaughter, assignee of Edward Farris, dated February 10, 1846.</p> <p>2. Deed from Hill, executor of Slaughter, to Lucy Farris to the northeast half of the Slaughter league, dated September 2, 1848.</p> <p>3. Deed from Lucy Farris to Lewis Godard for same half of the league, dated October IT, 1848.</p> <p>4. Deed by Godard to John Baker for six hundred and seventy-two acres out of the half league, dated September 25, 1849, and filed for record December 23, 1849.</p> <p>5. Deed by Baker to Jane Godard, wife of Lewis Godard, for same six hundred and seventy-two acres, dated March 21, 1852, and recorded October 22,1852. This was a deed of gift.</p> <p>6. Deed from Jane Wilson (formerly Godard), joined by her then husband, J. R. Wilson, to J. G. Rushing, for three hundred and seventy-six acres, north part of the six hundred and seventy-two acres, dated February 9, 1865, recorded March 18, 1865.</p>

<p>Appeal from McLennan county. Opinion by Watts, J.</p> <p>Statement.— [We adopt the statement of the appellants’ counsel, as found in their brief, the same being correct.]</p> <p>In which the court states, in substance, that it was shown that before the levy Winn had sold to plaintiff, Hogan, and was in possession of the goods. That they had been conveyed by a valid conveyance; that the evidence does not tend to show that, as between Winn and Hogan, it was not the intent to pass the title.</p> <p>It was not shown that Winn was insolvent, nor that the sale was made to defraud Winn’s creditors.</p> <p>That the writ of attachment was regular on its face, and that Winn was indebted, as alleged, to plaintiffs, in attachment, and they had obtained judgment as alleged.</p> <p>Plaintiff prays for damages and the value of the goods taken.</p> <p>Peter F. Boss, defendant, answered:</p> <p>1. By general denial.</p> <p>2. By special plea that he was, at the time of the seizure of the goods, wares and merchandise set forth in plaintiff’s petition, and before, sheriff of McLennan county, Texas, and that he seized the same by virtue of a writ of attachment issued out of the county court of McLennan county in a suit entitled Gr. Seeligson & Go. v. W. M. Winn; that the levy was made upon the goods as the property of W. M. Winn; that these goods were the goods of W. M. Winn at the time of the levy, and that any claim of plaintiff, Hogan, to said goods was pretended, feigned and simulated because before and at the time of plaintiff, Hogan’s, pretended purchase, Winn was largely indebted to many persons, among whom were Messrs. Seeligson & Co., and very much pressed by his creditors, and that said pretended sale was fraudulent, and mtide by Winn with the intent to delay, hinder and defraud his said creditors; that the'pretended sale was made just before the levy. And these goods levied upon were embraced in the sale. And that plaintiff, Hogan, knew of Winn’s fraudulent intent; that, indeed, there was no consideration paid in fact. And that the goods were, at the time, Winn’s goods and subject to the attachment against Winn.</p> <p>The 'cause was submitted to the court without a jury and judgment rendered for the plaintiff, Hogan, for $1,210.25 and costs of suit, being the value of the goods seized and interest at eight per cent, from date of levy.</p> <p>Defendant, Boss, appealed.</p> <p>At request of counsel for defendant the presiding judge assigned the following facts and conclusions found by the court at the trial of said cause, which was embodied as part of the record of said cause :</p> <p>1. That the goods were seized, as alleged, by P. F. Boss, and that at the time of their seizure they were in the possession of plaintiff, and had been conveyed and delivered to him by a valid conveyance from Winn, the owner of the same. The evidence does not tend to show that, as betAveen Winn and Hogan, it was not the intention to pass title.</p> <p>2. It was found that Winn was indebted to the original plaintiff in attachment as alleged, and that he had obtained a judgment at the time alleged. It is not shown that Winn was insolvent, nor that the conveyance to Hogan was made to defraud his, Winn’s, creditors.</p> <p>3. It appears that Boss, as sheriff, by his deputy, levied on the goods by virtue of a writ of attachment, regular on its face, but the record of the case in evidence shows that the attachment was not legally issued, and in such case where it is the intention of the vendor and vendee, as between themselves, to pass title, and the vendee is in possession, the sheriff cannot justify the levy under an attachment not legally issued, nor attack the conveyance, though it should be fraudulent as to creditors; and in this case it does not appear, by the evidence, that the conveyance was colorable between the parties or fraudulent as to creditors.</p> <p>It appears that plaintiff is entitled to recover the value of the goods and legal interest thereon from date of seizure, the amount for which judgment is rendered.</p> <p>Several errors are assigned; all amount to this: that the finding and judgment of the court are against, and not supported by, the evidence.</p>

<p>Surety, privilege of.—The privilege of a surety not to be sued . unless the principal has been previously sued, or to be simultaneously sued, must be taken advantage of in abatement. It is not available in bar.</p> <p>Co-surety on sheriff’s bond, right of contribution.— Where the sureties, according to the terms of the bond, were liable for the entire amount of the bond, and they did not undertake to bind themselves respectively separately to pay different or various sums, the right of contribution amongst the co-sureties exists and can be enforced.</p> <p>Interest.— The doctrine that interest is recoverable by a surety is adopted as being in accord with a proper equitable construction of the rights of the parties, and in harmony with the spirit of both law and equity.</p>

<p>Appeal from Austin county. Opinion by Watts, J.</p>

<p>Injunction.</p> <p>Sufficiency of petition.</p> <p>Lost papers, — Where the appellants depend upon their original petition for injunction, which had been lost or mislaid, to show the error of the court below in dissolving the injunction, it was . their duty to supply the deficiency of the record by the legal mode for substituting lost records and papers.</p>

Opinion by Watts, J. Statement.— The appellant instituted this suit on the 9th day of July, 1873, against appellees as the minor children of James B. Purcell, deceased, prayed for and had a guardian ad litem appointed by the court for said minors. The petition is in substance as follows: That Mahlon Purcell and wife did, on the 24th day of March, 1870, convey the land described therein to said James B. Purcell.

<p>Assignment OF EBRORS.—Assignment of errors must conform to the requirements of the statute, and unless gross injustice or some fundamental error appears of record, this court will not interfere.</p>

Opinion by Walker, P. J. Statement.— This was an action of trespass to try title to recover lot Ho. 3, block Ho. 3, in the town of Jacksboro, in Jack county, Texas. The plaintiff’s title was derived through a judgment in a justice’s court and a constable’s deed to the plaintiff as purchaser.

Opinion by Watts, J. Statement.— Appellant instituted this suit against appellee on the 22d day of May, 1875, to recover, as assignee of certain special policemen appointed for Milam county under and by virtue of the act of May 2, 1871, entitled “An act to amend an act entitled an act to establish a state police and provide for the regulation of the same, approved July 1, 1870.” The amount claimed in the petition was $1,219.

Opinion by Quinan, J. Statement.—This suit was brought by Elliott .to recover from Toohig & Co., bankers, a large sum of money, the balance of a deposit-made with them, which he alleges they withhold.

Opinion by Walker, P. J. Statement.— This suit was brought by the appellees against the appellant for the recovery of the value of a threshing machine, or damages for its conversion, which they sold and delivered to one Enfield; the petition alleg-. ing that the said Enfield gave them his note fpr $400, payable six month's after date, another of $100, payable.at thirty days, and $100 cash, as the consideration of the purchase.

Opinion by Watts, J. Statement.— Appellees as executors of the last will of S. S. Perry, deceased, brought this suit against appellant September 21, 1875, to recover 02,000 and interest on a policy of insurance issued by appellant on the life of Stephen S. Perry, making the policy part of the petition; said policy was dated May 20, 1873.

Opinion by Watts, J. Statement.— As the original certificate issued to Apple-gate and his transfer thereof to Crockeron were properly admitted as evidence, any error committed by the court in admitting the certified copies from the general land office of these instruments became immaterial. These original papers were more than thirty years old at the time the suit was brought and the trial had.

<p>Charge of court.—A charge not wrong in point of law, but not embracing all the law applicable to the case, will not furnish reason for reversing the judgment unless proper instructions were asked and refused.</p>

Opinion by Walker, J. Statement.— This suit was brought for rescission and. cancellation of a sale made by Saathoff to Vance, of two stocks of cattle as they run in the range, which were designated by brands “ J S” and “U L,” and not by specified enumeration, nor at a certain rate per head. The contract of sale was for the sale of the above-named brands or stocks of cattle, for sums of money agreed on, in gross, for each of the respective brands.

Writ of error from Navarro county. Opinion by Watts, J. Statement.— On the 2d of April, 1861, E. S. Tate and wife purchased from David McCanless, agent of the heirs of S. F. McCanless, six hundred acres of land, paying therefor $45 cash, and a promissory note executed by W. A. Lockart, payable to F. E. Tate, for $1,410.42, bearing ten per cent, interest, dated January 1, 1861, due on the day after its date, which note Tate and wife indorsed by written assignment, guarantying…

Opinion by Quinan, J. Statement.— This was an action of trespass to try title by appellant to recover the southwest quarter of out-lot 13, in the city and county of Galveston, and the only question made by the record, and which is assigned as error by appellant, was the ruling of the court below in excluding the deed from Antonio Officers to J. Bump, because it was not entitled to record without being witnessed by two witnesses.

Opinion by Walker, P. J. Statement.— This suit was brought by the appellants against the defendant, appellee, on an account for lumber amounting to §435.79, furnished by them for the purpose of building a lodge room or hall for the defendant. The plaintiffs sued for the amount alleged to be due and to en= force their lien as material-men, under the statute giving a lien to mechanics, laborers, artisans, etc., upon the said building and the lot on which the same is situated.

Statement.— Griffin sued Eyall upon several notes, among others one for $2,186, gold, with ten per cent, interest from March 1, 1871, which is credited with $950. This note, it is alleged, was given for the purchase money of a tract of land described in his petition, and he prays a foreclosure of the vendor’s lien and sale of the land in satisfaction thereof. The defendant answered the general denial.

Opinion by Quinan, J. Statement.— This suit was brought on the 27th day of April, 1878, by Samuel L. Rosamond, Collin Milam and Robert A. Milam, copartners, composing firm of Rosamond, Milam & Co., plaintiffs below (appellees here), in the district court of Galveston county, againt the Tremont Hotel .

Opinion by Quinan, J. Statement.— We adopt the statement of this case as presented by the plaintiffs in error. It is sufficient to a proper understanding of the points presented in the briefs and argument, with some brief additional statements from the record.

Opinion by Quinan, J. Statement.— This was a suit for partition of a lot in Austin, of which Hamilton claimed to be the owner of one-half, against Richard Flume and others, children of Mrs. Klenart, deceased, alleged to be owners of the other half.

Opinion by Walker, J. Statement.— This suit was instituted by the appellant, Thomas M. Attoway, against the appellees to enjoin the sale under levies made by virtue of two executions against himself in favor of the appellees, on divers articles of property, viz.: One forty-four saw gin stand; two pulleys; one short belt; a grist mill, and one Wo. 3 Victor cane mill and evaporator.

Error from. Harris county. Opinion by Watts, J. Statement.—■ Appellees instituted this suit against appellants as the heirs of Ferdinand Bell, deceased, October 5, 1872, to substitute a transfer of a land certificate claimed to have been exercised by said Ferdinand Bell to Isaac W. Burton in 1838, and claimed to have been lost or mislaid.

Opinion by Watts, J. ' Statement.— On September 5, 1877, John Dobbin, the city marshal of the city of San Antonio, filed his petition in the district court of Bexar county, claiming of the city fees and commissions on fines to the amount of $6,181.12, alleged to have accrued to him in some three thousand two hundred and forty-seven cases tried in the city recorder’s court from January 18, 1875, up to and including February 28, 1877.

Opinion by Watts, J. Statement.— At the fall term, 1861, of the district court of Hill county, Thomas Bowles recovered a judgment against defendant in error, Glasgow, for §1,214.94. The record of the same was destroyed, and at the August term, 1868, substituted upon the motion of Bowles; defendant in error resisted the motion on the ground that it had been off and discharged June 20,1863. The court substituted the judgment notwithstanding the plea.

<p>Deed or trust — Foreclosure.-— May be enforced against property, notwithstanding the discharge of the debtor in bankruptcy, and the debt had not been proven up.</p> <p>Bankruptcy.— A discharge in bankruptcy does not release property subject to a mortgage, although debt was not proved up.</p>

Opinion by Watts, J. Statement.— On May 28,1875, appellants brought this suit against appellee to recover the sum of $432.12 on account, and to foreclose a mechanic’s lien upon the house and lot described in the petition.

Opinion by Watts, J. Statement.—- The appellees as heirs and assignees of B. F. Donaldson, deceased, brought this suit against appellant on the 27th day of December, 1873, for the land described in the petition, alleging that B. F. Donaldson died intestate in 1860; that they were his heirs, except appellee, Serve, who was an assignee of one of the heirs; that in 1864 one J. B. Lafour was a bona fide settler upon the land in controversy, which was then vacant public domain;…

<p>Pleadings.— Amendments, conflicting. Facts insufficiently stated to authorize a recovery.</p>

<p>Appeal from Fort Bend county. Opinion by Walkeb, P. J.</p>

Opinion by Watts, J. Statement.—This suit was instituted b.y appellant against the appellees May 4, 1874.

Opinion by Watts, J. Statement.— F. Eberling, the appellant and defendant in the court below, in February, 1860, purchased of Joseph Dwyer the northeastern portion of survey 91, in the name of Josefa Leal, his northwestern boundary line of said Josefa Leal, Ho. 91. He took possession of his land and put a portion of it, close to the northwestern boundary line, in field.

<p>Citation.— Citation directed to one county, no authority to an. officer of another county to serve same.</p>

<p>Assignments of error, when vague, will not be considered.</p>

<p>Appeal from Jefferson county. Opinion by Walker, P„ J.</p>

<p>Appeal from Dallas county. Opinion, by Watts, J".</p>

<p>Judgment by competent tribunal is conclusive between the parties on any point until set aside.</p>