text:
    Catherine Sydec et al. v. Juan Duran et al.
    (No. 5387.)
    Judgment — Final, when.— All parties are included in a final disposition of a case, although not named in decree.
    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. During the progress of the trial, by leave of the court, Dolores Wilder, John J. Wilder, Lizzie Wilder, Dora Dunlap and her husband, E. L. Dunlap, who, under said leave, appear for themselves, and Mary, Adaline, Frank, Julia, James and Aggie Wilder, who are minors, all of whom are alleged to be heirs of John Wilder, deceased, except E. L. Dunlap and Dolores Wilder, the latter being the widow of John Wilder, all answered and set up title under the Manuel Blanco league. Under leave of court the following other defendants were made parties defendant and answered, claiming title under a grant of two and one-half leagues granted to Powell & Hewitson, viz.: James Power, T. 0. Lambert, Mary Power, Eliza Wilson, Phillip Power and Agnes Franklin, joined by her husband, John Franklin, claiming title from their deceased ancestor, James Power.
   Opihioh.— The judgment rendered by the court was a final judgment, to the effect “ that the plaintiffs take nothing by their suit, and that the defendants go hence without day,” and it proceeded to dispose of the costs of the suit.

This left nothing further to be adjudicated; and whether the judgment was erroneous or not in any particular, it was nevertheless a final judgment. It was a complete disposition as to all the parties to the suit and as to all the matters in controversy under the pleadings. Linn v. Arambould, 55 Tex., 617. That part of the judgment which adjudicates the recovery of costs by certain of the defendants against the plaintiffs specifies and includes all of them except James Power. Whether this were an unintentional omission of his name or whether it was purposely omitted does not matter. If the court adjudicated as to who should recover and from whom the cost should be recovered, whether erroneously or not, the judgment was rendered in favor of all the defendants; and if any objection existed, it would simply be a subject of complaint by the party injured complaining of the judgment.

The plaintiffs prosecuted this writ of error from the judgment, and they take no notice of James Powers in their citation of writ of error, nor is the writ of error bond made payable to him as one of the defendants.

That they have thus failed to serve him and make the bond payable to him along with his co-defendants is made the ground of the motion to dismiss this writ of error, which must prevail. Greenwade v. Smith, 56 Tex., 195; Smith v. Parks, 55 Tex., 83; Thompson v. Price, 55 Tex., 427; Harney v. Cummings, 62 Tex., 187.

Writ oe error dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Texas & Pacific R’y Co. v. W. C. Graves.
    (No. 5258.)
    Coepobations, liable for acts of servants, when.
    Damages, excessive; $2,000 held not.
    Appeal from. 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. However, the liability of a railroad company for the wrongs and injuries committed by its servants upon a passenger is governed by the peculiar terms of the contract which the law imposes upon the company, and the company is liable on its contract for the safe transportation of the passenger, for the wrongs and injuries inflicted upon him by the servants of the company, even though at the time they be acting beyond the scope of their actual and implied authority. In this case appellant was engaged as a common carrier of passengers. Appellee was rightfully upon the train as a passenger, and the conductor in charge of the train committed an assault upon and severely wounded him by striking him upon the head with a pistol. It is claimed that conductor was then in the discharge of what he considered his duty in preventing, as he thought, appellee from robbing another passenger, and when the conductor pulled him from his seat appellee placed his hand in such a position that the conductor thought he was in the act of drawing a pistol, and thereupon the conductor struck him as in self-defense.
   Opinion.— As to the immediate transaction there is a contrariety of evidence. Three persons had been pointed out to the conductor as suspicious persons by a watchman at the depot, who informed the conductor that it was thought that they were following a gentleman then on the train, with a view of robbing him. The conductor thought appellee was one of the three men pointed out to him as suspicious persons, and was engaged, in watching him and two others to prevent them robbing the passengers. Held, it may be assumed that the conductor was mistaken in the men pointed out and wasdaboring under a misapprehension as to appellee’s intentions and the purport of his act, yet such mistake would not excuse the company nor exempt it from liability for the actual damage resulting to appellee^ from the wrongful acts of the conductor, which would include all damages resulting as a natural consequence from the wrong, including mental and physical suffering. Two thousand dollars actual damages is held not to be excessive, and as the exemplary damages have been remitted, the judgment is reversed and here rendered for same amount.

Reversed and sendereo.


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    Texas & Pacific R’y v. Robert J. McKenzie.
    (No. 5287.)
    Railroads.—Damages, duties of defendants.
    Appeal from Parker county. Opinion by Delaney, J.
    Statement,— Appellee brought this suit against appellant to recover damages for injuries alleged to have been received by him from a fall on the platform of appellant’s station at Alledo, in Parker county, on the night of June 17, 1882; alleging that there was only one depot building at said station, which was constructed for receiving freight on the side-track running on the north side of the building, and was elevated five feet above the track, and the passenger train passed on the south side of the depot building at a' distance of thirty feet; that there were no reasonable and safe accommodations provided for passengers to await the train; that when the train arrived, about midnight, at said station, appellee came out of the depot building on the south side of the platform and started toward the .train to take passage, and, after proceeding eight feet on the platform fronting the train, he tumbled off and fell four feet on to a second platform with such force that his right leg was badly crushed and broken near his body, and he was permanently crippled; that his injuries were caused by the gross negligence and omission of duty of appellant in failing to provide a passenger depot and reasonable accommodations at Alledo station, and proper lights to guide passengers off the platform; that the night was dark and no lights had been provided on the platform to enable him to see his way to the train; that when he started to the train he acted upon appearances, and the deceptive appearance of the platform deceived him, and it was by appellant’s negligence and omission of duty that he sustained said injury, without fault on his part.
    Appellant excepted specially, and denied all allegations of the petition, alleging that its depot building was constructed as all such structures are built; that the appellee knew of the existence of the elevation; that there were proper steps at both ends of the platform known to appellee. Judgment was rendered for appellee for $1,500.
   Opinion.— The proof supports the allegations of appellee. Held, on the subject of the duty of appellant to the appellee in this case, the court correctly gave the following charge: “It was the duty of the defendant, at said station where it received passengers, to have and keep in reasonably safe condition suitable approaches to and from its cars to its station-house, and at night-time} if needed, to have sufficient light to enable passengers who might wish to take passage on night trains to pass with safety from the station-house to the trains.” I. & G. N. R. R. v. Stewart, 57 Tex., 166; McKone v. M. C. R. R., 13 Am. & Eng. R. R. Cases, 29 and note; Whart. on Neg., secs. 653, 821.

Affirmed.


text:
    W. A. Reeves v. J. C. Lindsey.
    (No. 5440.)
    Deed — Warranty.— Grantor held when land is deeded by metes and bounds although it conveys more land than intended.
    Appeal from Jack county. 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. Appellant, being called upon to defend the title, admitted he had never owned the land, and alleged that he had not intended to convey it, but had done so through mistake.
   Opinion.— Held, that this defense cannot avail. What appellant calls a mistake was nothing more or less than his own culpable negligence, and that of his agent. He admits that he had the deed in his own house two weeks before he signed it and that he did not read it before signing. Ho blame can be attached to appellee, who acted upon the representations of appellant’s agent.

Affirmed.


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    W. Q. & K. D. Bateman v. W. G. McCreight.
    (No. 5287.)
    Damages, attachment, probable cause for will not entitle defendant to.
    Appeal from Mitchell county. Opinion by Watts, J,
   In order to entitle appellee to recover exemplary damages the burden was upon him to show that the writ of attachment had been maliciously sued out and levied upon his property. There is not one single circumstance disclosed by the record tending to show that essential fact. It is an admitted fact that Cleveland Bros, were indebted to appellants in the amount claimed by them in the attachment suit, and it clearly appears from the evidence that they sold to appellee all the property they were known to have, and immediately left the country without paying appellants’ claim. It appears that appellee knew at the time of the purchase from Cleveland Bros, of their indebtedness to appellants, and ought to have known that the purchase by him of the stock of groceries embraced all the property they were known to possess. It was upon these facts that appellants acted in suing out the attachment and having the same levied upon a portion of the stock of groceries then in the possession of appellee. In our opinion there was probable cause for suing out the attachment and the seizure of the property. The evidence not only fails to show any wrongful intent in having the attachment issued and levied, but affirmatively shows the existence of probable cause for having the seizure made.

As to the other branch of the case it may be appropriately remarked that if Cleveland Bros., in making the sale, intended thereby to hinder, delay or defeat their creditors, then the sale as to them would be fraudulent. And if appellee knew of this intention at the time of purchase, or was in possession of such facts as would have satisfied a reasonably cautious person of the existence of such intent, he will be held as having participated in the fraud. See Chief Justice Wheeler’s remarks in case of Humphries v. Freeman, 22 Tex., 50.

Revebsed and demanded.


text:
    T. W. Ward v. Pollock & Gibbs.
    (No. 5523.)
    Distress warrant—Lien. — Held, lien good for arrears and current quarter in process of becoming due.
    Appeal from San Saba county. 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. The exception was sustained, and this ruling of the court presents the only error assigned. Appellant had leased a house to appellee for a term of two years, commencing May 14, 1883, the rent being payable quarterly. The rent for the first year was paid, and in part for the second year. But for the quarter ending November 14, 1884, the sum of §47 was unpaid. Two days after the end of that quarter appellant issued his writ. He claimed a lien for §47 on the quarter which had just closed, §100 for the current quarter ending February 14, 1885, and §100 for a quarter which had not commenced, but which he supposed would commence February 15, 1885, and end May 14, 3885.
   Opinion.— Held, appellant had a lien for the rent in arrears and for current quarter which was in process of becoming due, but not for future periods which had'not commenced. At farthest appellant’s lien would not authorize the issuance of a writ for more than §147, and was below the jurisdiction of the district court. Green v. Bear Bros. & Hirsch, 68 Tex., 628; B. & B. Association v. Cochran, 60 Tex., 620.

There is no error in the judgment, and it is affirmed.

Aeetbmed.


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    H. & T. C. R’y Co. v. John C. Maddox.
    (No. 5333.)
    Damages, measube of.—Railroad employee, excessive, may be cured by a remittitur.

    Appeal from Grayson county. Opinion by Walked, P. J.
    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.
    Appellant filed a motion for a new trial, pending which appellee entered a remittitur of $1,000, upon which the court overruled the motion.
    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.
   Opinion.— We are of the opinion the court did not err in refusing to give the special instructions asked for by defendant, as they were not applicable to the case. The question of negligence on part of the defendant under all the facts was an issue to be determined by the jury, and their verdict is supported by evidence to show that the defendant was negligent, and that the plaintiff did not contribute to the accident by any want of care on his part. There remains but one question, whether the verdict is so excessive in amount as to require a reversal of the judgment. The rule is: “Where there is not a legal measure of damages, and where the damages are liquidated and the amount is referred to the discretion of the jury, the court will not ordinarly interfere with the verdict, unless the amount is so great or so small as to indicate that the jury must have found their verdict under the influence of passion or prejudice, or in other words that it is the result of a perverted judgment and not that of their cool and impartial deliberation. In that1 event it is within the discretion of the trial court to interpose.55 1 Sutherland on Damages, p. 810. It may be. inferred that the trial court may have indicated an intention to grant a new trial unless a remittitur should be entered of $1,000. The fact that the plaintiff yielded to such a suggestion, if made, is no concession that can injuriously affect his rights on this appeal. Gulf, West Texas & P. R. R. Co. v. Montier, 61 Tex., 124.

It has been held that, where an excessive verdict has resulted from passion or prejudice of the jury, the effect of a remittitur, to an amount satisfactory to the judgment of the court trying the case as not being excessive, would remedy the objection. But the correctness of such a practice is questioned by Sutherland, in his work on Damages, as being a departure from sound principles and practice. 1 Sutherland on Dam., pp. 813, 814, and cases there cited. We do not think, however, that such a question is here involved.

Afbibmed. '


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    John H. Blain v. F. E. McManus.
    (No. 5399.)
    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.
    Appeal from Nueces county. Opinion by Walker, P. J.
   Where the defendant is a citizen of this state, and not a non-resident, and is served with notice and a certified copy of the plaintiff’s petition, in conformity with articles 1230, 1231, 1232 and 1233, Revised Statutes, the truth of the facts stated in the officer’s return of service, supported by his affidavit, not being controverted, their verity must be assumed as undisputed facts, and plaintiff was entitled to judgment by default for want of an answer upon the call of the appearance docket or at any time after appearance day. Art. 1282, R. S. The competency and disinterestedness of the party performing the service is presumed. Jones v. Jones, 60 Tex., 451. Where the defendant was cited December 10, 1883, the appearance day being December 14, 1883, and he filed no answer until judgment by default was asked for, and nearly three weeks afterward, and during the same term of court, the judgment was prima facie regular, and was not affected by an answer filed after its rendition, unless for causes requiring it to be set aside. The validity of the service does not depend upon the official character of the person who served the notice, nor upon any other test of qualification than that prescribed by statute. It is within .the discretion .of the court to permit the notice to be withdrawn from the record to enable the person who made the return to correct any informality therein. Arts. 1233, 1239, R. S. The service having been actually made on the defendant, it was not void by reason of the failure to have an affidavit attached to the notice setting forth the required facts, and the defendant was bound fco take notice of the return that was made, and of the order of the court allowing the notice to be withdrawn. Freeman on Judg., sec. 126. The statute req uiring the return to be attached to the notice is merely directory, and the omission to so attach it would not, of itself, warrant the court in setting aside the judgment. Cartwright v. Chabert, 3 Tex., 261.

Affirmed.


text:
    G., H. & S. A. R’y Co. v. James Sullivan.
    (No. 541.)
    Negligence.— Knowledge of, or committed by vice-principal, chargeable to principal.
    Fellow-servant, when an employee is not.
    Appeal from Colorado county. 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. The error assigned by appellant was verdict of jury, and that judgment of court should have been for defendant, for the reason that the evidence fails to show any legal liability of defendant to plaintiff for injuries sustained, and that plaintiff had knowledge, or could have had, of defects of timber used in construction, or the negligence or unfitness of Wolf, the foreman in charge of the work.
   Opinion.— The error assigned presents two questions as tests for determining the liability of the defendant under the law and evidence in the case. First, that the plaintiff cannot recover because he was a fellow-servant of Wolf, wrho was also the defendant’s servant, and to whose fault the plaintiff imputes the injury complained of. Second, that occupying the relation he did to the bridge work, the falling of which immediately caused said injury, that the plaintiff’s want of care in not learning of the dangerous condition of the bridge work and the unfitness or negligence of Wolf in the construction precludes him from a right to recover damages from defendant.

The first ground cannot be maintained, as Wolf was defendant’s superintending agent and had exclusive management and control of men and hands engaged in the work— could hire and discharge them at pleasure. Defendant was bound to furnish suitable machinery and appliances for safe discharge of the employees’ duties. H. & T. C. R. R. Co. v. McNamara, 59 Tex., 357; Wood on Master and Serv-' ant, sec. 329. Wolf does not occupy the position of a fellow-servant to the plaintiff, but its vice-principal. H. & T. C. R. R. Co. v. McNamara, 59 Tex., 259; Railroad Co. v. Dunham, 49 Tex., 19; also, Hough v. Railway Co., 100 U. S., 213; Ford v. Fitchburg R. R. Co., 110 Mass., 241; Gilvian v. Eastern R. R. Co., 13 Allen, 440.

As to' the second ground relied on by the appellant, that the plaintiff had or could have had knowledge of the defects in timber or faulty construction of work, it is not borne out by the evidence. The testimony showed that plaintiff had been at work framing bridge timber some two miles distant and only arrived on the work on the evening before the disaster. Plaintiff was a carpenter, whose business was only to frame timber and not to superintend construction of bridges. . .

The jury found under instructions' as to the law of the case, to which no exceptions were taken, in favor of the plaintiff; it must be presumed that they found plaintiff vitas not in default in not knowing and guarding against the accident. The evidence was sufficient to support the finding. See H. & T. C. R’y Co. v. McNamara, supra, and authorities there quoted; Railroad Co. v. McAffee, 61 Tex., 69; Gibson v. Pacific R. R. Co., 2 Am. Rep., 500, 501, and cases there quoted from, and Ryan v. Fowler, 24 N. Y., 410.

Judgment affirmed.


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    Schneider & Davis v. Fred De Smith.
    (No. 5259.)
    Assignments.—> Transfer by one partner to the other.
    Same.— Creditors not affected by fraud.
    Appeal from Parker county. • 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. Eng-strum, his partner, his (Hooper’s) interest in the goods levied on by plaintiffs’ attachment afterward, and that the partnership between said Engstrum & Hooper was on that day actually dissolved; that this sale and dissolution of partnership was real and in good faith, and free from any intended fraud, and the court concluded that this want of fraud is an admitted fact, and this admission is evidenced by the statement of agreed facts read in evidence. Conclusions of law found on the above conclusions of fact and upon agreed facts.”
    First, the law is that the property levied on by plaintiffs’ attachment did not belong to Engstrum & Hooper at date of levy, January 11, 1884; that at that date neither Eng-strum nor Hooper owned or had any right in or to the property; that before then said property had passed into the hands, rightfully and legally, of Fred De Smith, the assignee, for the benefit of Engstrum’s creditors, and that plaintiffs’ levy was invalid.
   Opinion.— Held, that under the issues and facts of this case, it was not essential to the correctness of the conclusions of law found by the judge that he should have found as a conclusion of fact that the firm of E. & H., and the individual members composing .it, were insolvent at the time H. sold out his interest in the business to his partner.

It is held in Blum v. Welborne, 58 Tex., 164, “ that no act of the assignee nor act of the assignor, at the time the assignment is made or preceding it, but even in contemplation of it, however fraudulent the act may be, shall divest the ' right of creditors to have the estate administered for their benefit in accordance with the spirit of the statute.”

The point urged by appellant under the various assigned errors is in fact that, notwithstanding the transaction was hona fide and fairly intended as between the parties to it, yet, as it withdrew partnership effects, such transaction constituted a constructive fraud on the rights of the creditors of the firm. The above quoted decision applies, and appellants must seek the enforcement of their debt against the assets of the firm in the manner provided for under the law regulating assignments, and in the ordinary modes provided for under the general laws, as creditors generally. They cannot subject the property to attachment.

Affirmed.


text:
    T. & P. R. R. Co. v. Alice Evans et al.
    (No. 5355.)
    Evidence — Deposition.— Bill of exceptions necessary on ruling of court to reject them.
    Appeal from Tarrant county. 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 defendant’s servants in calling out Ft. Worth station before it was reached, and inducing thereby said Jeptha Evans to go to the step of said car for the purpose of getting off, and then by suddenly starting said train, causing the car to throw him to the ground, and running over him, producing injuries of which he died.
    Plaintiffs claim actual damages $15,000 and exemplary damages $10,000. Defendant pleaded general and special demurrer, general issue and plea of contributory negligence. The general demurrer was overruled, and the special exception sustained to that part of the petition setting up exemplary damages. The case was tried by a jury, resulting in a verdict and judgment in favor of plaintiffs for $5,000 and costs, from which this appeal is prosecuted.
    All the grounds of error assigned, save one, relate to the charge given by the court. The main charge was as follows: “ If the said Jeptha Evans was a passenger on defendant’s railroad and paid fare, and in reaching the station of his destination and in attempting to get off the train he was thrown down and killed, and this was caused by the negligence or failure of duty upon the part of the defendant, its agents and servants, the plaintiffs are entitled to recover, unless the said'Jeptha Evans by his own negligence or want of care so far contributed to the accident as to deprive him of any remedy.” The fault or negligence on the part of said Jeptha Evans, which would preclude plaintiffs from a recovery, if there was negligence both upon his part and the part of the defendant, its agents or servants, is not the least degree of fault or negligence, but it must be of such a degree as to amount to a want of ordinary or reasonable care on his part, under the circumstances at the time-of the injury. “By ordinary care is meant that degree of care which may be reasonably expected of a person in the situation of the said Jeptha Evans at the time he is alleged to have been killed.”

      “A railroad company, in the conduct and management of its trains, is required to employ skilful and competent agents and to use such means and foresight in providing for the safety of passengers as persons of the greatest care and prudence usually exercise in similar cases; and should an injury result to a passenger from a failure to use such a degree of care and prudence, the company will be responsible for such injury, unless it appears that the passenger so injured, by the use of ordinary care and prudence usually exercised by persons of ordinary caution in his condition and circumstances, could have avoided the injury. But a railroad company is not liable for an injury to a passenger which is the result of a mere accident or casualty, where there is no want of care or skill on the part of the company or its agents.” “ But the plaintiffs cannot recover, notwithstanding there may have been negligence on the part of the defendant, or its agents, which contributed to the accident, if the said Evans, by want of ordinary care and by his own voluntary acts, so far himself contributed to the accident that but for this fact it would not have happened. If, however, the defendant, or its agents, could, by ordinary care, have avoided the consequences of plaintiff’s negligence or want of caution, or by the direct act of its servants caused the act which produced the injury, plaintiff would then be entitled to recover.”
    “The question is, Were the circumstances under which the act was performed in which the said Evans was injured such as to show a want of ordinary care and caution on his part (as explained)? If so, plaintiff cannot recover, .whatever may have been the negligence of the defendant, its agents or servants. But if a man of ordinary care and caution would have acted as he did under the circumstances, considering the acts of the company’s agents, and his death was caused by the negligence or careless conduct or failure of duty on the part of defendant, its agents or servants, as above explained, plaintiffs'1 should recover.” The court charged the jury at the instance of -defendant (among other things) “ that the burden is upon the plaintiff to prove the acts of negligence charged against defendant, whereby the death of Jeptha Evans was caused.”
   Opinion.— There being no bill of exceptions taken to the ruling of the court overruling defendant's motion to suppress the depositions of Mrs. Evans, the error complained of is, therefore, not the subject of revision on this appeal. See rules 55 and 69 for the district court, 47 Tex., 627, 629.

Held, the law of the case was fully and clearly given to the jury and verdict is supported by the evidence, and therefore the judgment is

Affirmed.


text:
    Robert F. Campbell v. Ward B. Blanchard.
    (No. 481.)
    Public domain.— Act of 1879 (and subsequent acts) construed.
    Appeal from El Paso county. 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, 1881; that said lands were vacant and unappropriated at the date of his said application, and that appellee received, filed and recorded appellant’s application for the same; for which appellant paid appellee the fees allowed him by law, and demanded then and there a survey of said land.

      Appellant alleged a tender of appellee’s fees in full for surveying said land and a refusal to make the survey thereof by appellee, and prayed for a mandamus to compel him so to do. Appellant made his application for the survey December, 1882.
    Appellee answered by general demurrer and general denial, and on trial of cause before the court judgment was rendered for appellee. See General Laws Special Session 1879, p. 48; amendatory thereof, General Laws 1881, p. 21; repealing act, General Laws 1883, p. 2.
   Opinion.— It is claimed that appellant had so far complied with the act of 1879, as amended in 1881, that it amounted to a contract between the state and appellant, which could not be affected by the repeal of that act.

From the record we find application for a survey was made in December, 1882, filed and recorded; but before any survey was made the legislature, on January 22, 1883, expressly repealed the act of 1879 authorizing sales of land. Appellant again tendered fees, but appellee refused to make the survey, claiming that he had no authority to make the survey. The mere request to the surveyor to make the survey for appellant of the lands designated will not bind the state to sell nor compel appellant to purchase.

It is well settled that a mandamus will not issue to compel a public officer to perform an act unless it be clearly defined and enjoined by law, so that it does not involve the exercise of discretion. Durrett, v. Crosby, 28 Tex., 687; Cullen v. Latimer, 4 Tex., 329.

It is clear that there was no such contract with reference to the purchase of this land as would be protected by the constitutional provision which declares that no law shall be passed impairing the obligations of a contract.

Affibmed.


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    D. R. Fant v. A. O. Brannin et al.
    (No. 5514.)
    Tax deed,— Authority to levy must be shown; sale in gross not valid.
    Appeal from Live Oak county. 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. To show a common source, appellees, in connection with the tax deed, offered in evidence a certified copy of a decree of the district court of Jackson county, entered in 1872, by which the lands belonging to the estate of J.- D. Owen, deceased, were partitioned among his heirs, in which the lands in suit were set apart to appellees.
   Opinion.— In this case appellant claims through a tax deed executed by Alex. Coker, as tax collector of Live Oak county, to R H. Brown, for four several tracts of land described in the petition.

The deed recites that the sale was made to pay the delinquent tax assessed upon the 'land against A. C. and J. S. Brannin, for the year 1875.

This sale was made upon the certificate of the comptroller, under the. act approved August 19, 1876. General Laws 1876, p. 255. Aside from the certificate of comptroller, there was no evidence adduced tending to show that any assessment of the tax had been made upon the land.

It is incumbent upon a party claiming under a tax deed to establish, by evidence other than the recitals in the deed, a substantial compliance with the statute, and a compliance with the prerequisites authorizing the sale, including a valid assessment.- Here it does not appear when or by whom, the assessment was made, or by what authority, or how evidenced. Besides the sale was made in gross; that is, the four several tracts of land, aggregating one thousand two hundred and eighty acres, were sold in gross for the sum of $8.50, and, as this affirmatively appears upon the face of the deed, it seems clear, for that reason, the deed must be considered as void, Montgomery v. Birge, 31 Ark., 491; Long v. Wolf, 25 Kan., 523; Byam v. Cook, 21 Iowa, 392. In our opinion the court did not err in excluding tax deed.

Mor was there ahy error in admitting the certified copy of the decree of the district court of Jack county partitioning the estate of J. W. Owen, deceased, in 1882.

The tax deed under which appellant claimed only purported to convey two of these tracts.

Aeeirmed.


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    J. C. Breckenridge v. E. V. Verrier.
    (No. 5524.)
    Fraud.— Held, that where party contracted for horses at their actual cost, and settlement and note given, that if there was a mistake in price of horses that in suit on said note defendant was entitled to the difference.
    Appeal from Taylor county. Opinion by Watts, J.
    'Statement.— This was a suit brought on a note executed by the appellant to the order of appellee. Appellant set up by special plea that he and appellee had entered into an - agreement for the purchase and sale of horses; that appellee becoming uneasy as to probable success of the venture, and claiming that .appellant had induced him to enter therein, appellant agreed to take the horses which appellee had purchased and pay appellee the amount which he had paid for the horses, with interest; that appellee accepted this-offer, and upon the representations of appellee that he had paid a certain amount for the horses appellant paid appellee a certain amount and gave him the note sued on, which amounted to the sum stated by appellee ; that the representations of appellee as to the value of "the horses were false, fraudulent, and-known by appellee to be so at the time, and were made by appellee for the purpose of deceiving appellant; that he relied on such representations as true, and had no means of ascertaining their falsity. The charge of the court made the relief sought by appellant to depend upon:
    1. That the statements charged by appellant to have been made by appellee as to cost of horses must have been known by the appellee to be false at the time he made them.

      2. That they were made to defraud.
    3. That appellant relied on the statement and was induced thereby to sign the note.
    é. That appellant was actually deceived by appellee’s statements.
   Opinion.— Held, the appellant was entitled to the benefits of the actual contract price agreed on for the purchase of the horses. If the price agreed on was the actual cost of the horses, plainly the defendant’s right to an abatement of the amount of his note in case it was given on the mistaken representations as to the cost of the horses cannot "be affected because at the time he made the representation he knew that it was false. It would be constructive fraud,. nevertheless, on the defendant, against which he would be entitled to protection according to the terms of the sale. The representations as to what was the cost of the horses would amount to a warranty that the amount stated wg.$ the correct amount, and if it was not so the defendant would not be liable for'the excess over the true amount of the actual cost. As the jury may have been misled to the appellant’s injury by the charge, the judgment is reversed and.the cause remanded.


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    Mary Carroll et al. v. W. S. Booth et al.
    (No. 5383.)
    Cebtiobabi.— Guardianship proceedings corrected by; disability, when commences.
    Disability.— Time commences after removal of.
    Insufficient peice not good ground for setting aside sale of land.
    Appeal from G-onzales county. 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. These sales were alleged to have been worth, at the time of the sales, $2,500, and which were sold to Booth for $1,089. The writ of certiorari was granted, and upon a hearing the court sustained general and special exceptions and dismissed the cause, from which judgment this appeal is taken.
   Opinion.— Proceedings had in a guardianship may be renewed by certiorari from the county to the district court, and there revised and corrected, any time within two }rears after such proceedings were had, upon application of any person interested in the guardianship.

Any person laboring under a disability has two years after the removal of the disability in which to make application.

In such cases the statute requires that the application shall distinctly set forth the error sought to be revised. R. S., arts. 290, 291. Here the sole ground stated in the application for the writ is that the land was sold by guardian for-less than its actual value.

The sales were made by the order of court and approved b3T the same court, and there were no allegations of any irregularity in sales.

Hor was. fraud practiced.

The statute provides that any time after five days from the filing report of sale, but at a regular term, the court shall inquire into the manner of sale, and if satisfied sale was fairly made according to law shall enter a decree confirming sale. It. S., art. 2593.

The great object in judicial sales is fairness.

But it is well known that property rarely commands full value. There being no sufficient ground stated in the application for the certiorari to sustain the proceeding, there is no error in the judgment and it is affirmed.

Affirmed.


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    C. R. Hubbard v. A. H. Arnold.
    (No. 537.)
    Tax deed.—Description must be such that the land can be identified with reasonable certainty.
    Appeal from Lampasas county. 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.
    The land was described as follows in the tax deed: “That whereas certain taxes are due the state of Texas, and the county of Lampasas, by the unknown owner of the following lands, assessed against him for the year 1878 on following tracts or parcels of land, viz., one hundred and sixty acres of land described as follows: Abstract Ho. 231, granted by patent vol. — to John H. Q-racy on the-day of-, A. D. 18—. And for metes and bounds of same reference is hereby made to said patent vol. —. Also one hundred and sixty acres of land described as follows: Abstract No. 13, granted by patent No. 364, vol. —, to A. H. Arnold, on the - day of -, A. D. 18—, and for metes and bounds reference is hereby made to the said patent No. 364, vol. —, dated as aforesaid.”
   Opinion.— The court, did not err in excluding the tax deed. The statute points out the requirements of listing • and assessing property. See B. S., art. 4711. It is also provided by statute that in the collector’s deed the same description of the land shall be given as is contained in the tax rolls, and such additional description as may be practicable for the better identification of the land. B. S., art. 4756. Here the only matters of description contained in the deed are the abstract number and patent number; also number of acres in each survey, with names of original grantees; but neither the number of the volume nor date of patents is given, nor is'the value of the respective tracts stated. It is well settled that the tax deed must contain such description of the land that its identity and locality may be determined with reasonable certainty, otherwise it will be held inoperative. Bingham v. Smith, 64 Me., 450; Wilkins v. Tourtellot, 28 Kan., 843; Orton v. Noonan, 23 Wis., 105; Roberts v. Deeds, 57 Iowa, 320; Wofford v. McKinna, 23 Tex., 43.

While it is true that extrinsic evidence is ordinarily admissible to aid in applying the calls contained in the deed to the particular land (Winkley v. Kane, 32 N. H., 268; Crooks v. Whitford, 47 Mich., 283), still the description contained in the deed must be certain within itself, and not such as would require other evidence to make it certain. Winkler v. Higgins, 9 Ohio St., 599. Here some of the matters of description required by’the statute are omitted from the deed. The description as given is not certain .within itself.

The deed of the collector of taxes is not evidence of title within itself, but a valid assessment and other requisites eventuating in a valid sale must be shown.

Affirmed.


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    S. K. Smith v. T. & P. R. R.
    (No. 5525.)
    Railroads.— Liability of public for unsafe premises; special duty to parties dealing with it.
    Practice.— Allegations showing good cause of action sufficient to require an answer.
    Appeal from Taylor county. 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. Appellant had bought a fine Angora goat to use as a breeder on his farm in Comanche county, and on the 9th day of August, 1882, had shipped said goat by Pacific Express Company in order to get said goat to his farm, in time to use him as a breeder for the fall of 1882. Said Pacific Express Company, in consideration of the sum of $3 cash paid in advance by said Smith, undertook to deliver said goat at Cisco, in Eastland county, and on same day appellant delivered said goat to said Pacific Express Company. Afterwards appellant was advised that divers boys were annoying, vexing, harassing and injuring said goat while being confined in a box awaiting shipment; that said box was on the depot platform before referred to. Appellant avers that on hearing of the treatment of his goat by the boys, that he went to the depot to inform the agent of the express company, that he might put a stop to it, and that it being dark, and appellee not having any lights out, appellant, while walking as a prudent man would in the dark, tumbled off of the upper platform to the lower platform, a distance of five feet, thereby sustaining painful and serious injuries; that he was confined to his bed for three months, during all of which time appellant suffered great mental and physical pain; that he was unable to work; that he was compelled to pay out $50 for medicine, $50 for medical services, $50 for nurse hire, in all $150; that he was damaged by reason of loss of time as a dentist, $1,250; also claiming $40,000 for mental and physical pain resulting from said injuries.
    Appellee filed a' general demurrer, which was sustained by the court, and appellant refusing to amend the suit, it was dismissed, from which ruling of the court appellant excepted, and gave notice of appeal to this court.
   Opinion.— According to the case made by the appellant’s amended original petition, the appellant cannot be considered a trespasser, as the express company had its only office at Abilene in the depot building of appellee, a combined passenger and freight depot also used by the express company. The petition also alleges that the express company was then under the management and control of, and operated by, appellee.

The company is required to keep its premises safe for the use of the public, where it expressly or by its conduct invites or induces such use, and is liable to such person using them who suffers an injury from defects in the premises. Coombs v. New Bedford Cordage Co., 102 Mass., 572; Kay v. P. R R. Co., 65 Pa. St., 269; Tobin v. Portland, S. & P. R. R., 59 Me., 183; Grand Rapids & I. R. Co. v. Martin, 41 Mich., 667; Stewart v. I. & G. N. R. R., 58 Tex., 289.

“Among those to whom it is under this obligation,” it is said, “ are persons who come to receive or deliver freight, passengers arriving or departing by its trains, and the hack-men who carry them to and from the station, and persons on the premises to welcome the coming, and to speed the departing, guest.” Newson v. N. Y. Cent. R. R., 29 N. Y., 383; New Orleans, M. & C. R. R. v. Hanning, 15 Wallace, 649; Gillis v. P. R. R., 59 Pa. St., 129; Pittsburg, Ft. W. & C. R. R. v. Bingham, 29 Ohio.St., 373; Quinby v. Boston & M. R. R. 69 Me., 340.

In the language of Mr. Justice Harlan in the case of Bennet v. Railroad, 12 Otto, 585: “We are all of opinion that the pleadings state facts sufficient to require an answer from the defendants.”

For the error in sustaining the general demurrer to appellant’s amended petition and dismissing the cause, we are of the opinion that the judgment ought to be reversed and the cause remanded, and it is so ordered.


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    J. P. Davidson v. W. M. Gibson.
    (No. 3018.)
    Promissory note, failure of consideration.
    Pleading.— No impediment, ordinarily, to right 'to amend, that pleadings have been put under oath.
    Appeal from Eastland county. Opinion by Walker, J.
    Statement.— This was a suit brought by appellee against the appellant, on three promissory notes amounting to over $600. Defendant set up as a defense a partial failure of consideration, alleging that the notes were given for a stock of cattle sold to defendant by the plaintiff, at the rate of $2 per head; that of said stock he has not been able to obtain, by hunting for them in the range, more than $100 worth of said cattle; that he paid down at the date of purchase $600, and has also paid $100 on the notes sued on since their execution and delivery. Defendant alleged that the notes were procured by fraudulent.representations of the plaintiff, which were relied on by the defendant; that ■ the plaintiff represented “ that his stock was gentle and easily handled and controlled, and that he was satisfied that there were six hundred head of cattle, the most of which could be easily gathered, as they were gentle as aforesaid, and plaintiff knew that the larger portion of the same could be easily gathered;” and he (defendant) had diligently searched the range where the cattle were represented to be found, and has been unable to find more than fifty head of the cattle of the marks and brands purchased by him; and prayed for cancellation of the notes and for judgment against the plaintiff in reconvention for the sum of §598, with interest. Answer sworn to; plaintiff excepted to the sufficiency of the answer by general demurrer, and assigned special grounds of exception.
    Court, sustained the demurrer, and defendant thereupon asked leave to amend his answer, w'hich was refused by the court because it was a sworn answer and not subject to amendment, and also because the parties had announced ready for trial at the time the ruling was made.
    Verdict and judgment for plaintiff. Motion for new trial overruled and appeal taken by defendant, assigning as error the action of the court in sustaining the demurrer, and also in refusing to permit defendant to file an amendment to the pleading held to be defective.
   Opinion.— The exceptions taken by the plaintiff to the defendant’s answer were properly sustained by the court, and the appellant’s counsel, in his brief, does not present either authority or argument to support the sufficiency of the answer. But on the other hand neither of the grounds was valid on which the court refused to allow defendant to amend his answer. See Dewitt v. Jones, 17 Tex., 623; also, 4 Tex., 454; 10 Tex., 520. Substantial defects which would wholly defeat a recovery, or materially affect or modify a judgment, maybe cured by amendment, and even the character of the suit may be substantially changed. Plaintiff by amendment of tlie petition may supply omissions. Sayles’ PL, sec. 156; 10 Tex., 155; 18 Tex., 155; 28 Tex., 713. And the same indulgence will be allowed defendant. See 12 Tex., 413.

It is no impediment, ordinarily, to the right to amend, that the pleading excepted to has been put under oath. 20 Tex., 245; 10 Tex., 360.

A plea impeaching the consideration of a note under seal need not be under oath. 28 Tex., 219; 26 Tex., 338.

For the errors indicated the judgment is reversed and cause remanded.

Reversed ahd remakded.


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    J. P. Demmitt, Sheriff, v. George Garnier.
    (No. 3191.)
    BeMedy, where property in the hands of a constable by virtue of a distress warrant is taken by sheriff under other process.
    Opinion by Walker, J.
    This suit was brought June 17, 1875, by the appellee against the appellant to enjoin the sale by him, as sheriff, of one pair of counter-scales, twelve candy jars and one show-case, and also for damages for their illegal seizure, alleging that said property was subject to his lien, as landlord," for rent due him by one Lubens, whose property the same were when thus seized by the defendant, as sheriff, to satisfy a certain judgment against said Lubens in favor of. a third party creditor, the execution issued upon said judgment being the authority under which said sheriff acted in levying upon the goods in question.
    The plaintiff alleged the insolvency of Lubens and that he was remediless to collect his rent of $25 unless the property referred to was subjected to the payment of said rent.
    ’ Defendant demurred to plaintiff’s petition, which was overruled and cause tried by the judge, and judgment for plaintiff perpetuating the injunction which had been granted to restrain the sale, and adjudging that defendant deliver the propertjr referred to, to the constable, in whose hands was a distress warrant issued by a justice in favor.of plaintiff against Lubens, which had been issued to secure said rent, shortly after the defendant, as sheriff, had levied upon and taken possession of said property, together with other articles levied upon in the business house of said Lubens, as his property. Defendant appealed, and assigns as error the overruling of his demurrer to the petition and the rendition of judgment for the plaintiff, because there is no lien, under any law, in favor of any one for rent, except upon products of a farm and stock thereon.
   Opinion.— “ It is always a sufficient objection to the granting of an injunction.that the party aggrieved has a full and adequate remedy at law, and it is a well-established rule that courts of equity will not lend their aid for the protection of rights or the prevention of wrongs where the ordinary legal tribunals are capable of affording sufficient redress; and where it does not appear that the remedy at law is inadequate, or that the party aggrieved is entitled to more speedy relief than can be obtained by the ordinary process of courts of law, an injunction will be refused.” High on Injunctions, sec. 28, and authorities cited. The case which the plaintiff makes in his petition for injunction is that of a forcible and unwarranted trespass by the defend-' ant in seizing, without process and without authority of any kind, the property which the plaintiff had caused to be - seized by distress warrant, and that he fears he will lose his debt if the defendant is allowed to sell said property. These facts are not sufficient to entitle plaintiff to the relief sought.

The plaintiff’s petition does not allege that he, as landlord of Lubens, held or was entitled to claim a landlord’s lien upon the articles of property which he alleges had been seized by his distress warrant.

The petition evidently means to convey the idea, by implication at least, that the constable had seized by his distress warrant before the sheriff (defendant) had taken possession of the same.

The facts shown on the trial are quite different from that state of facts; but taking the facts as stated in the petition as true, it will not be assumed, in the absence of an averment to that effect, that the plaintiff was entitled to a landlord’s lien upon the property. The property may have been the property of Lubens, subject to the writ under which it was seized by the constable, to which, nevertheless, the landlord’s lien may not have attached.

In such case, under the facts stated, the remedy would have been for damages against the sheriff or for the recovery of the specific property itself in the hands of the sheriff; to maintain either of which the law afforded ample and sufficient remedies without recourse to the interposition of equitable remedies. The defendant is not alleged to be insolvent or unable to respond in damages, and in respect to the suit for the property itself in his hands, the law afforded him the aid of statutory remedy and process of sequestration.

We conclude, therefore, that the'first ground assigned as error was well taken and demurrer ought to have been sustained. Also the second ground of error was well taken, and that the plaintiff was not entitled to the judgment which was rendered in his favor.

Reversed and remanded.


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    J. S. Brown & Co. v. D. A. Young et al.
    (Tyler Term, 1881.)
    Injunction.— Jurisdiction of county and justices’ courts. Held, that the county court had jurisdiction to grant and perpetuate the injunction, and that this was the proper remedy.
    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 by a justice of the peace of Galveston county on a judgment in favor of J. S. Brown & Co. against B. A. Mathews for the sum of $166.52, upon certain goods found in possession of B. A. Mathews, and on the 24th day of May, 1879, Young and M. Mathews, alleging that the)7, and not B. A. Mathews, were the owners of said goods levied upon, filed their petition in the county court of Parker county, setting up their ownership and claiming title to the goods, and praying for a writ of injunction to restrain the sale of goods so levied upon, and for damages, etc.
    The petition alleges a partnership between D. A. Young, M. Mathews and said B. A. Mathews, but alleges that B. A. Mathews had no interest in the goods levied upon, and makes him a party defendant.
    The county court granted and issued the injunction as prayed for, and on final hearing adjudged the goods so levied upon to petitioners', D. A. Young and M. Mathews, made the' injunction perpetual, and rendered final judgment against J. S. Brown & Co. for $100 damages', besides an alternative judgment for the goods so levied upon, or 'their value, adjudging them to be worth $242.
    J. S. Brown & Co. filed and insisted upon a motion to dissolve the injunction on the ground that the county court had no jurisdiction to grant the same; the}7 also filed general and special exceptions to the petition, all of which Avere overruled by the court.
   Opinion.—There are but tivo points presented for our consideration: 1st. Jurisdiction of county court to grant the injunction staying the sale of personal property levied upon under an execution from justice’s court of Galveston for less than $200. 2d. It was error in the county court of Parker county to grant and perpetuate the injunction in this case, because D. A. Young and M. Mathews had an adequate legal remedy, by affidavit and claim bond, to try right to the property.

Authority to grant writs of injunction eo nomine, and also to grant all other writs necessary to the enforcement of the jurisdiction of the court, is conferred by the constitution, article 5, section 15, and it is in the same terms recognized by enactment. Act June 16, 1876, art. 1170, B. S.

Appellants insist that when the writ issues it must be made returnable to the court of the justice of the peace whence the execution came.

This suit was filed and fiat of the judge made May 24, 1879. At that date, article 3932, Paschal’s Digest, was in force, which has been re-enacted in the Be vised Statutes, article 2880. The second ground of error is not maintainable. See Story on Partnership, sec. 261 and note. The proper proceeding in a case like this is by injunction. Kogers <o. Nichols, 20 Tex., 719; Story on Partnership, sec. 264, and authorities cited. There being no error apparent upon the record for which the judgment ought to be reversed, we conclude that it ought to be affirmed.

Affirmed.


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    City of Indianola v. The Indianola R. R. Co. et al.
    (Galveston Term, 1882.)
    Liability of railroads after consolidation; use of streets; damages.
    Appeal from Calhoun county. Opinion by Watts, J.
    Statement.—■ Appellant brought this suit June 28, 1872, against appellee to recover upon a bond for $50,000 and interest.
    The substance of the case made by the petition is that the city of Indianola is an incorporated city; that the Indianola Eailroad Company was incorporated by. special act of the legislature, with its principal office at Indianola; that on the 4th day of August, 1870, the same was consolidated with the San Antonio & Mexican Gulf Eailroad Company, under the name and style of “The Gulf, Western Texas &■ Pacific Eailroad Company,” by special act of the legislature passed the 4th day of August, 1870, and contract made in pursuance of the same; that the Indianola Eailroad Company was created by act of the legislature, approved January 21, A. D. 1858, and the San Antonio & Mexican Gulf Eailroad Company was created by act approved September 5, 1850; that said companies, were authorized by their charters to construct a railroad from the mouth of Powderhorn bayou, on Matagorda bay, and from the town of Lavaca to the cities of Austin and San Antonio.
    By the act of consolidation the Gulf, Western Texas & Pacific Eailroad Company was authorized to construct such railroads. On the 11th day of April, 1870, the Indianola Eailroad Company applied to the city authorities for the right of way over certain of the streets and alleys of the city, which was refused on the ground that the construction of the road on the line designated would be detrimental to the interests of the city, etc., unless the road should be speedily extended at least sixty-five miles into the interior.
    June 20, 1870, the city council passed a resolution granting to the company the right of way on the' desired line, upon conditions set forth therein; among others, that said company should execute a bond in the sum of $50,000, conditioned that the company would construct and complete, alone or in conjunction with other companies, a continuous line of railroad from Indianola to' the town of Victoria, and to a point twenty-five miles beyond, within twenty-two months from July 1, 1870.
    On June 21, 1870, the board of directors of said company passed a resolution accepting the' grant of the right of way on the conditions mentioned, and authorized the president thereof to receive a deed from the city, and to execute and deliver the required bond.
    The deed was made, executed and delivered by the city the same day, and the same day the company, through its president, made, executed and delivered the bond. That said company was afterwards consolidated as above stated, and that the company had failed to construct and complete the railroad to the point designated within the time therein named, but that it had failed and refused to comply in this particular with the terms of said bond. That the said eompany had constructed the road through the city of Indianola along the streets and alleys designated in said deed, and was then continuously occupying the same with its oars, to the great disadvantage, inconvenience and damage of the city.
    The prayer is for a judgment of $50,000, as stipulated damages, with interest. The defendants filed general and special exceptions, among others, upon the following grounds:
    1st. That it appears from the petition and exhibits that the consideration for the contract sued on is illegal, in that the company had the right to the use of the streets without paying any compensation therefor, and the city had no power over the subject-matter of this contract.
    2d. That the contract was ultra vires both as to the city and the railway company.
    3d. That the amount named in the contract or bond is a penalty, and not stipulated damages.
    Cause tried October 3, 1873. Court sustained appellee’s demurrers to appellant’s petition, and rendered judgment that appellee go hence without day, and appellant pay costs, etc., from which this appeal was taken, and errors assigned as follows:

    Court erred in sustaining the defendant’s general and special demurrer to plaintiff’s petition, and also in dismissing suit upon error.
   Opinion.— All the questions presented by the record arise out of the sustaining of appellee’s general and special exceptions to the appellant’s petition.

Preliminary to the determination of these questions, it may be assumed as settled law that the consolidation of the Indianola Eailroad Company, under the name and style of “ The G-ulf, Western Texas & Pacific Eailway Company,” by virtue of an act of the legislature passed the 4th day of August, 1870, renders the consolidated company liable for all the valid contracts and liabilities of the two companies thus consolidated, Stephenson v. Texas & Pacific R’y Co., 42 Tex., 166; T. & P. R’y Co. v. Murphey, 46 Tex., 360. Was the purported consideration of the contract or bond paid' or furnished by the city of Indianola illegal ?

Our statute then in force -was in effect that the railway company could use any of the publjc streets or alleys without paying compensation therefor, and, in the event of a disagreement between the railway company and corporation, the dispute could be settled by the state engineer or such person as the governor may appoint.

From Paschal’s Digest, articles 4936, 4937 and 4941, it will be observed that the statute does not give the company the right to occupy such streets and alleys as it may select in opposition to the will of the authorities of the town or city. Prior to the execution of the contract under consideration the railway company applied to the city authorities for permission to occupy certain streets and alleys as a road-bed, but this application was refused.

When this was done the company could, under the statute, have had their remedy; but in this dilemma the company preferred to settle the matter by agreement, and compromised with the city rather than risk a designation by the state engineer; that is, the company chose to pay the city for the right of way on the line desired, rather than accept that which might be designated by the state engineer, without compensation having to be made. There is nothing in the law that would prevent the company from making such contracts with respect to its right of way upon the one hand, or the city upon the other, from contracting with regard to its streets and alleys to be used as a road-bed.

It is plainly inferable, from the provisions of the statute cited above, that railway companies and the cities or towns could settle such matter by agreement between themselves, and instead of being prohibited it appears to us that such agreements are authorized by the'spirit of the law. We conclude that the consideration paid and furnished by the city of Indianola .for the contract sued on is not illegal,' and thus the city authorities had power over the subject-matter of the contract.

Appellee insists that the railroad company had no power to make the contract sued on. Upon this point Mr. Pierce, in his work on Railroads, pages 499 to 501, makes use of this language: “Corporations have an implied power to make such contracts as are usual and necessary for carrying into effect the purposes for which they were created.35

The contracts of a corporation are presumed to be within its powers, and the burden of showing its incapacity by the terms of the charter is on the party who denies their validity.

In respect to the question of ultra vires, after a careful examination we conclude that the contract under consideration is not ultra vires as to the railroad company.

Bor do we think this contract is illegal for want of power in the city authorities to make the same. See People v. Kerr, 27 N. Y., 188; In re Boston & Albany R'y Co., 53 N. Y., 574; City of Clinton v. Cedar Rapids & Missouri R. R. Co., 24 Iowa, 455.

This brings us to the consideration of the only remaining question presented by the record, to wit: Is the amount naiped in the bond or contract sued on stipulated damages or a penalty? The authorities generally concur that in construing this class of contracts, as well as all others, the courts are governed by the intention of the parties; such intentions generally to be arrived at by a consideration of the language employed and the subject-matter of the contract. Sedgwick on the Measure of Damages, 419; Field on Damages, 136.

Looking to the substance of this contract, without regard to its form, it appears to us to be an alternative agreemént that, in consideration of the consent of the city to the occupancy of its main business streets by the road, the company bound itself to construct the road as named, or in the alternative to pay the city the said sum of §50,000. '

Acting upon the well-settled rules of construction hereinbefore noticed, we have no hesitation in holding that the amount named in the bond is stipulated damages, and recoverable as such, taking the allegations of the petition as true. We conclude that the general and special exceptions to appellant’s petition were erroneously sustained by the court, and that the judgment ought to be reversed and the cause remanded.

¡Reversed and remanded.


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    J. L. Welch v. M. M. Holmes.
    (No. 3433.)
    Judgment by default admits every material allegation in the petition, except the amount of damages; in trespass, to try title and for damages, it establishes the plaintiff’s right to the land, as damages could be waived.
    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. The land is described in the petition by metes and bounds as a survey of six hundred and forty acres; and the plaintiff claimed the entire survey, except a tract of one hundred and sixty acres, to be taken in a square from out of the northeast corner of the survey, and laid damages at $1,000. The plaintiff set out her title as follows: The land had been granted to her deceased husband, and was their community property, and had been awarded to her upon a partition between herself and the heirs of her husband.
    Service of process was waived by defendant February 1, 1875. June 17, 1875, the cause was called for trial, and defendant not appearing, judgment was by the court, without a jury and without the production of evidence, rendered for plaintiff against defendant for the title and possession of the land as described in the petition. Defendant brings up the case by writ of error, and assigns for error: 1. Rendition of judgment by default for land. 2. Rendition of judgment without evidence. 3. That in such a case the court could only render judgment for costs. 4. Judgment is contrary to law, and without any evidence whatever.
   Opinion.— Our opinion is that there is no error in the judgment of the court below. A judgment by default admits every material allegation in the petition except the amount of the damages. The case of Clark v. Compton, 15 Tex., 32, was an action of trespass. The court held that the judgment by default established the plaintiff’s right to recover, and fixed the defendant’s liability. The only province of the jury was to fix the amount. In the present case, also, the judgment establishes the plaintiff’s right to the land, and she could waive the damages. R. S., art. 4803. So far as the title" is concerned, a jury could have been of no service, for there was nothing to be established by a verdict; no need of evidence, for everything had been admitted.

Judgment affirmed.


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    E. J. Vance, Administrator, v. Phil. Claiborne.
    (No. 3184.)
    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.
    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.
    Appeal from Bastrop county. Opinion by Watts, J.
    Statement.— This is the second appeal of this case. The disposition of the former appeal is reported in 39 Tex., 398.
    A partial statement of the case will be found in the opinion of the court. After the case was remanded Claiborne filed an amended answer, more certainly and specifically setting up the Gay note, as an offset, also pleading-other matters of discount, etc. The credits admitted, and about which there was no controversy, are as follows: August 22, 1861, $150; February 22, 1866, $500; September 3, 1866, $25; September 25, 1868, $100. The only other item of discount about which there was any evidence adduced was the Gay note or claim. The note sued on was for $1,141.50’dated February 25,1861, bearing interest from date at the rate of twelve per cent, per annum. A trial was had November 23, 1875, and a verdict and judgment in favor of appellant for $195.62. Errors relied on are:
    1. The court erred in admitting evidence as shown by bill of exceptions. 2. The verdict and judgment is against the evidence, being much less than was shown to be due appellant.
    When this case was before the supreme court in 1873, it was held that the plea of Claiborne, setting up the Gay note as an offset, was not sufficient to entitle him to introduce evidence in support of it; and as the court below had admitted evidence in support of that offset, the judgment of the court below was reversed and the cause remanded. Vance v. Claiborne, 39 Tex., 398.
    After the cause was remanded, Claiborne filed an amended answer, obviating the objection to the manner in which this offset was asserted in his former answers. On the second trial appellant objected to the admission of evidence in support of this portion of appellee’s answer, which objection was overruled and the evidence allowed to go to the jury. That point was saved by bill of exceptions, and is now urged as ground for the reversal of the judgment.
   Opinion.— This court has repeatedly held that any objection to the form in which an offset is presented should be disposed of on exceptions, so that the defendant might have the privilege of amending his answer in that particular. Gaines v. Salmon, 16 Tex., 313; Cunningham v. Wheatly, 21 Tex., 185. The amended answer presenting this offset is sufficient to admit evidence in support of it, and the court did not err in overruling the objection of appellant to the evidence introduced by appellee.

An examination of the record shows that, by giving the evidence the most favorable construction for the appellee, the judgment is too small by at least $100.

The judgment being contrary to the evidence, the cause is

Beversed and remanded.


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    Van Calvert & Co. v. Albert McKinney et al.
    (No. 3090.)
    Lien, mechanic’s.— Article 711S, Paschal’s Digest, construed; paints furnished to construct a building. Held, parties could fix mechanic’s lien by complying with said article.
    Same — Purchasers subject.— Under said article a lien might be enforced against parties purchasing the .property within six months given to perfect lien, although purchasing prior to the recording of lien.

      Appeal from Collin county. 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. That the value of the paints so furnished was 374.75, and that defendants agreed to pay for said paints the said sum with interest at eight per cent, per annum ninety days after delivery, but had failed and refused to do so. That plaintiffs had fixed and secured their lien upon said hotel and the lots upon which .it is erected by making a duplicate copy of the bill of particulars under oath and delivering one to the clerk of the district court of Collin county, which was duly filed and recorded on the 25th of June, 1875, and that on the same day the other copy was duly served upon W. P. Walton, Jr., one of the members of said firm, by the sheriff of Collin county. That on the 31st of March, 1875, defendant Atkinson conveyed his interest- in the hotel and lots to Albert and Charles McKinney, and on the 27th of March, 1875, defendant Walton conveyed his interest in the same property to one J. A. P. Travis, all of whom are made defendants.
    Prayer for judgment for the amount of the claim and for the enforcement of the lien, for general relief, etc. Annexed as an exhibit was an account duly sworn to under the statute, and also a certificate of its registration, together with the sheriff’s return of service of the duplicate upon defendant Walton. July 21, 1875, defendant Travis answered by demurrer, setting up that the allegations in the petition were not sufficient to sustain the lien, and a general denial. July 27, 1875, a similar answer was filed by defendants Charles and Albert McKinney. Defendants Atkinson and Walton made default. On the 6th of January, 1876, the court sustained the demurrer of the defendants Charles and Albert McKinney to the petition of plaintiffs, and adjudged that they go hence without day and recover their costs of plaintiffs; but judgment by default against the defendants Atkinson, Walton and Travis for the debt, interest and costs, but without foreclosure as to Travis. To the ruling of the court sustaining the' demurrer plaintiffs excepted and gave notice of appeal. Appeal bond filed July 11, 1876.
    It is probable that the judgment by default was rendered against Travis by mistake. The record'sustains his answer, comprising a demurrer to the petition and a general denial in almost the same terms as the answer of his co-defendants, the McKinneys. The judgment is rendered against him for the debt and interest, though he was not a party to the purchase of the paints, and was made a party to the suit only in order to obtain a foreclosure of the lien set up in the petition upon the building and lots.
   Opinion.—It appears from the brief of appellants that the court below sustained the demurrer upon two grounds: 1. That appellants do not come within the description of persons to whom the lien is given by the act of November 17, 1871. P. D., art. 7112. 2. That the McKinneys and Travis purchased before the li„en was fixed; that they were innocent purchasers, and as to them the lien has no effect.

Both these questions seem to be decided adversely to this view in the cases of Gaylord v. Loughridge and Huck v. Gaylord, 50 Tex., 573 and 578.

Reversed and remanded.


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    R. V. Tompkins v. J. B. Hart.
    (No. 3894.)
    Contract—Salesman.—Damages by discharge.
    Pleading.—When the damage claimed results, prima facie, as a matter of legal inference from the facts stated in the pleading, it is always sufficient.
    Appeal from Dallas county. 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. The plaintiff alleged the contract to be that the defendant agreed to pay him $1135 per month for the term of one year from the 1st day of February, 1875; that he entered upon his duties at that date and performed services for defendant until 30th of June, 1875, at which date the defendant discharged him without cause, and refused further to accept plaintiff’s services, and requested him to leave the premises.
    The petition showed that plaintiff had been paid very nearly all. that was due him up to the time that he was discharged. He alleges that at that time it was the dull business season, and plaintiff was unable to obtain*employment elsewhere, notwithstanding his best exertions to do so,.until later in the season, to wit, 10th of September, 1875, at which last date he did procure employment for the balance of the year for which he had been engaged by the ’ defendant; that by his said last employment he realized $375. Plaintiff sues for one year’s salary, after allowing as a credit the amount which he had received from the defendant up to the time of his discharge and the sum of $375 which he had been enabled to earn after he was discharged.

      The defendant answered by general demurrer and general denial. Demurrer was overruled; jury waived, and cause submitted to the court. Judgment for plaintiff for §609.70.
    On the trial plaintiff proved that he made an effort to get employment .after his discharge, to which defendant objected, because there was no allegation in plaintiff’s petition that plaintiff had suffered loss or damage by loss of employment, which objection was overruled.
    The defendant appeals and assigns errors, among which is that plaintiff was not entitled to recover under the allegations of petition.
   Opinion.— The damages claimed by the plaintiff were not required to be set out more specially than was done in the petition. Where the damages claimed result prima 'facie as a matter of legal inference from the facts stated, it is always sufficient. Sedgwick on Damages, sixth edition, page 731, says: “All legal damages must, whether the action be in contract or in tort, naturally result from the act or fault complained of; and although the law in certain cases permits the recovery of such damages as are physically secondary or consequential, yet they must in legal contemplation be also its proximate result. Where such result is necessary or is legally imported by the facts, the damages are general and need not be specially set forth in the pleadings; otherwise they must.” Burrell v. New York & Saginaw Solar Salt Co., 14 Mich., 38. Applying these principles to the facts alleged by plaintiff as constituting his cause of action, he was prima facie entitled to recover damages as the legal consequence of those facts. Field on Damages, sec. 340; also Nations v. Cudd, 22 Tex., 552; Meade v. Rutledge, 11 Tex., 53, 54.

There being no error, the judgment is affirmed.


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    W. M. Sneed v. C. F. Townsend et al.
    (No. 3246.)
    Judgment — Acquiescence — Ratibvoation.—Acquiescence in a judgment does not necessarily constitute ratification.
    Charge — Fraudulent intent.—A charge is erroneous which makes the fraudulent intent conclusive against plaintiff, where defendant is not influenced by the fraudulent acts.
    Appeal from .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. Townsend recovered a judgment against Sneed and another for over $2,200 in the district court of that county, and had four hundred and forty acres (excess over homestead) of the tract sold under execution upon that judgment, and Townsend purchased the saíne. Subsequently Hammack sued Sneed on the purchase-money note, and obtained judgment against him and foreclosed the lien. An order of sale was issued on this judgment and the whole tract was sold and purchased by Townsend. Sneed brought this suit August 30, 1875, against Townsend and Hammack to set aside and vacate the Hammack judgment, to enjoin the sheriff and Townsend from ejecting him from the land, and to remove cloud from title, offering to tender the money paid by Townsend on the Hammack sale if required by the court, etc.
    The ground that he sought to vacate the judgment upon was, that while the return of the officer upon the citation imported service, that in truth and in- fact he had never been served and knew nothing about this suit; that he was the head of a family, occupying the land as his homestead; that the land was sold for about $500, when it was of the actual value of §2,000.
    Appellees denied the averments of the petition as to the want of service, and asserted acquiescence and ratification upon the part of Sneed, etc. The cause was tried October 14, 1875, and resulted in a verdict and judgment for the defendants, from which this appeal was taken. The main error relied on is that the court erred in the charge given at request of appellees.
    After submitting to the jury certain special issues and instructions upon the law applicable to them, the court, at the request of appellees, gave the jury the following charge: “If the judgment of J. W. Hammackis valid upon its face, and. the execution issued upon it, under which the land was sold, is regular, and Sneed acquiesced in the judgment and sought to gain an advantage thereby against Townsend, then it makes no difference whether Townsend was influenced to make the purchase by the representations and conduct of Sneed or not, if the jury believe from the evidence that Sneed was actuated by a fraudulent intent.” To which the court appended the following: “The foregoing instruction is given; and if the jury find under this instruction they will find a general verdict for defendant, and need not answer the issues submitted by the court.”
   Opinion.— Appellant’s position is that this charge is erroneous, and obviously the verdict was the direct result of this error. If the facts as alleged by appellant- be taken as true, then the Hammack judgment was voidable only, and was susceptible of being ratified or confirmed. 51 Tex., 344; 54 Tex., 543; 8 Tex., 80.

Sneed could have, notwithstanding the irregularity complained of, so ratified and confirmed the Hammack judgment as to have thereafter precluded himself from questioning its binding force. But acquiescence would not necessarily constitute ratification; and whether or not there had been such an acquiescence in this judgment by Sneed as to make it a ratification upon his part is a question of fact that should be submitted by the court to the jury. Considering the conflicting character of the evidence, the form and phraseology of the charge, and its pointed conelusions, in which the existence of a fraudulent intent is made the turning point in the case, it appears that the jury were controlled, and very likely misled, by this charge.

In our opinion the charge of the court was erroneous in the particulars indicated, and the judgment ought to be reversed and the cause remanded.

Reversed and remanded.


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    John T. Sedgwick v. J. K. Patterson et al.
    (No. 3358.)
    Lien, mechanic’s — Pleading.— A petition is bad on demurrer and special exceptions where it fails to allege that the plaintiff had caused the bill of particulars to be recorded.
    Jurisdiction.— District courts, up to April 18, 1876, had jurisdiction of all sums over §100.
    Appeal from McLennan county. Opinion by Walker, J.
    Statement.— This suit was filed on the 14th of April, 1876. Plaintiff in error, who was plaintiff in the court below, brought suit at the April term, 1876, in McLennan county district court, on an open account for lumber, labor and material furnished to the defendant in error (Patterson) to repair his residence at Waco, which account had been sworn to, filed with the clerk of the district court, then recorder, in pursuance of the law to fix and secure mechanic’s lien, amount of the account being $398.67.
    The original petition prayed for judgment for the amount of the account, interest and costs, and that the lien be foreclosed, with an order to the sheriff to sell the said residence to satisfy judgment. The defendant (Patterson) answered by special and general demurrer to plaintiff’s petition, all which upon the hearing the court sustained and dismissed the cause for want of jurisdiction, the amount in controversy being under $500. Plaintiff excepted to the rulings and judgment of the court below, and now brings the judgment into this court on error for revision.
   Opihiok.—The plaintiff alleged that he fixed and secured his lien by filing a duplicate copy of the bill of particulars under oath with the clerk of the district court of McLennan county on the 3d day of December, 1874, and by serving a copy of the same on defendant Patterson as required by law. The special demurrer and exception of the defendant Corlew to the plaintiff’s petition is that there is no averment contained in it that plaintiff’s said claim, and notice of claim lien, was ever recorded in the proper office of McLennan county. Article 7112, Paschal’s Digest, provides for fixing and securing liens; statutes must be complied with in every particular. 53 Tex., 245; 54 Tex., 370; 52 Tex., 620.

The allegation that the account had been filed with the district clerk is not equivalent to, nor does it supply the want of, the allegation that he had caused it to be recorded. “ The requisites of the statutes are necessarily descriptive of the lien, and if omitted in the pleadings should subject them to demurrer.” Pool v. Sanford, 52 Tex., 634.

There was no error in sustaining the exceptions, so far as relates to the sufficiency of the petition in setting up a valid lien.

The court erred in sustaining the petition as a cause of action for the money alleged to be due, and dismissing the cause, because the amount in controversy was less than $500. When the suit was brought the district court had jurisdiction of all sums over $100. The jurisdiction of that court was extended to $500 by the constitution of 1876, which took effect on the 18th of April, 1876. See sec. 27, art. 5, Constitution. This cause was tried on June 13,1876, and on June 16, 1876, a statute was enacted transferring to the county courts from the district courts the cases contemplated by the constitution, which took effect from its passage.

It was error to dismiss the cause; if the district court had no jurisdiction the county court certainly did have, and it should have been transferred to that court.

Judgment reversed and cause remanded to the district court for further proceedings in accordance with this opinion, directing the district court to transfer this cause to the county court, unless by proper amendment the plaintiff may be able to show that he has fixed and secured the lien which he relies on.

Reversed and remanded.


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    Nannie K. Pierce et al. v. James A. Logan et al.
    (No. 3972.)
    Execution.— Levy before and sale after death of debtor. No sale under execution after death of debtor can defeat the right of administrator or executor to the possession and control of property. As to them such sale has no effect.
    Execution.—Heir or legatee takes the property subject to the debts, and only gets what is left after administration is had and debts settled.
    Appeal from Lamar county. 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. The latter died in 1844, seized and possessed of the land in controversy; no administration was had upon his estate, and that Chas. Logan inherited the same, and was seized and possessed of the land in controversy in 1846; that plaintiffs, as the only heirs of Chas. Logan, inherited his entire estate, and especially the said land, of which they were lawfully seized, and had the possession until January 1, 1868, at which time the appellants entered upon said land and ejected appellees therefrom, and have and still hold possession thereof; praying for judgment for the land, etc. Appellants answered March a, 1875, by general demurrer, not guilty, and general denial. In an amended answer filed October 6, 1877, appellants set up the three, five and ten years’ limitation; suggested improvements in good • faith; and, by an amendment filed October 15, 1878, appellants claimed title to the land as follows: By and through a judgment in favor of Snowden against Bennett T. Logan 'rendered in the district court of Lamar county at the September term, 1845, and. an execution, levy and sale thereunder the same year, and a purchase of the land at the said sale by one W. W. Williams, and a deed to him by the sheriff, and by mesne conveyance to appellants. Case tried by the judge May 18, 1878, and judgment rendered in favor of appellees for the land and cost of suit, from which ■ this appeal.
   Opistiost.— Bennett T. Logan was living at the date of the rendition of the judgment and issuance of the execution, but was dead when the sheriff’s sale was made at which Williams purchased the land in controversy. The authorities are meagre, conflicting and doubtful as to the effect of such a sale. See Taylor v. Snow, 47 Tex., 467.

. This is not a direct proceeding upon the part of the plaintiffs to have the sheriff’s sale vacated and set aside; and to arrive at the conclusions reached below, the court must have held the sale absolutely void. This was erroneous. The sale was made in 1845 and suit begun in 1874, and, as a direct proceeding, came too late.

Bevbeseb ahb bemahbeb.

Obihioh on motion for rehearing.— Every proposition now urged in support of the motion for rehearing was considered by us in the decision of the case. We then and-still regard the case of Gonkrite v. Hart as overruled by that of Taylor v. Snow.

At common, law, a sale made after the death of the defendant in the judgment was only voidable and not void. This, so far as we are informed, is -the rule in all the other states; and the only reason why such sale is considered void as to the executor or administrator in this state is on account of the provisions of the probate law, which prescribes how, by whom, and in what order the debts of the decedent shall be paid. Our probate laws only apply when administration has been opened upon the estate. Where no administration is or can be opened upon the estate, the right of the heirs, as well as the creditors, must be determined by the general principles of law.

With or without administration, the heir takes the inheritance burdened with the debts of the ancestor.

In this case the record not only shows that there has been no administration, but that, from the lapse of time, ¿one could now be had; therefore the provisions of the probate laws could have no application to this case. As remarked in the former opinion, the property was applied to the payment of the ancestor’s debts under the former law, but not in the manner prescribed.- As to the heir, who was only entitled to the property after the payment of the debts with which it was burdened,, such an application was irregular and voidable, and could be vacated and set aside by a direct proceeding, instituted by him within a reasonable time. But if an administration had been opened upon the estate subsequent to the sale, that would have put into operation the probate law, and it would relate back to the death of Logan and would take hold of his estate in the very condition in which he left it, and hence the sale which, as to the heir, was only irregular • and voidable, would, as against the administrator, be of no effect.

The fact that the purchaser at the sheriff’s sale knew that the defendant in the judgment was dead would not affect the question.. The sale would be irregular and voidable, but not void, whether, he did or did not have knowledge of defendant’s death at time of sale.

Motiox refused.