text:
    John C. Gibbons et al. v. M. G. Ewer et al.
    (No. 842.)
    Power of attorney.— “To make sale of all or a portion of my property, if directed by me or my lawful heirs by letters to that effect,” etc., held insufficient unless under prescribed conditions.
    Appeal from Lamar county. Opinion by Walker, J.
    Statement.— This is an action of trespass to try title, brought by appellees, M. G. Ewer et al., as heirs of Lemuel Ewer, deceased, to recover of appellants, John 0. Gibbons et al., the heirs and administrators of Epps Gibbons, deceased, three hundred and twenty acres of land in Lamar county. Plaintiffs pray for judgment recovering the land, for possession, and that all clouds be removed from their title, and petition is indorsed as usual in an action of trespass to try title. Defendants below pleaded “not guilty; ” statutes of limitation of three, five and ten years, and by special plea set up that defendants and Epps Gibbons, under whom they claim, have had quiet, peaceable and uninterrupted possession of the premises for more than thirty years before this suit, holding under a deed executed by Lemuel Ewer (plaintiffs’ ancestor), by his agent and attorney in fact, John L. Moore, to Epps Gibbons; and that John L. Moore made the deed to Gibbons as agent for said Ewer, acting under his instructions and under a valid power of attorney; that Gibbons paid a full, fair and adequate consideration for the property, took possession of the same immediately after his purchase, placed his deed upon record, made valuable improvements worth $1,000 with the full knowledge and consent of Ewer; said Ewer, fully understanding all the circumstances, ratified the sale and fully acquiesced in it for a number of years, and, in fact, as long as he lived; that plaintiffs have never set up claim to the property until this suit was brought (June 14, 1880), although they knew the deed had been executed under said power of attorney, and that the title had passed out of plaintiffs’ ancestor for more than thirty years, and that their claim is a stale demand, etc. Cause tried without a jury May 19, 1882, with judgment in favor of plaintiffs, M. G. Ewer et alfor the recovery of the land, that they be quieted in their title, for a writ of possession, costs, etc.
    . Defendants filed their motion for a new trial May 20, 1882, which was overruled the same day, and defendants gave notice in open court of appeal to the supreme court, filed their appeal bond and assignment of errors, and bring the case up by appeal.
   Opinion.— The merits of this suit turn upon the question whether the deed of conveyance relied on by the appellants, to the land in controversy, from Lemuel Ewer, plaintiffs’ ancestor, made by John L. Moore, acting as agent for him under a certain power of attorney, was intended to pass the title to the land in presentí and absolutely, or whether it constituted and evidenced but a portion of an entire contract which was of an executory character, the conclusiveness and finality of which deed, as a conveyance of title under said contract, being dependent upon the consummation of the contract considered as an entirety.

The defense set up against the deed was that, although it ivas absolute and unqualified in form as an apparent assurance of title, it was, in fact and in legal effect, an instrument of writing intended to perform the office of conAreying the land described in it in consideration of the exchange of tracts of land betAveen the grantor and grantee, and that the latter, Epps Gibbons, on his part, in pursuance of that agreement, and as a part thereof, liad made and delivered to Lemuel Ewer, the grantor in the deed, his bond for title, stipulating to convey to him two specified tracts of land, embracing a like quantity as that included in the deed, as soon as he, said Epps Gibbons, could obtain a patent for said land from the government, and binding himself to use diligeppe to procure the patent; that said Gibbons had failed to comply with the terms of his bond, and that the contract had been abandoned. The deed and bond were executed and delivered on September 24, 1845. The former was witnessed by B. K. Olark, the latter by said Olark and one L. Y. Moore.

The judge trying the case, among his other findings, found that the deed was executed and delivered by one Moore, acting under a power of attorney from Lemuel Ewer, which deed was never ratified nor acquiesced in by said Ewer; that the consideration of the deed was a bond for title, such as is above described.

The court also found that the transaction between the parties was for a barter or exchange of lands; that Epps Gibbons was in possession of the land at the date of the deed, and so continued until the year 1852, when, his improvements being partially destroyed, he removed from the land and disposed of the remaining improvements; that when said Gibbons removed from the land the barter of lands between him and Ewer was considered abandoned by both parties; that Lemuel Ewer rendered and paid taxes on the land in controversy from date of patent, July 8, 1845, until his death in 1860, since which time they have been paid by his heirs; that neither Epps Gibbons nor his heirs have ever paid any taxes on the land in controversy from date of patent, July 8, 1845, until his death in 1860, since which time they have been paid by his heirs; that neither Epps Gibbons nor his heirs have ever paid any taxes on the land until this suit was brought, June 14,1880; that since the abandonment of the possession of. the premises in controversy by Epps Gibbons, in 1852, no one has had possession until within twelve months before the bringing of this suit, when defendants took possession of the same.

Upon these and other findings of fact the court found, as a deduction of law, that plaintiffs are entitled to a judgment for the land in controversy and for their costs. The power of attorney above referred to contained a provisional authority, namely, for the sale of property by the attorney in fact.

The third clause was to the following effect, namely; To make sale of all or a portion of my property, if by me or my lawful heirs by letters to that effect, and generally to do whatever my said attorney may think best to promote my interest.”

The power in itself being insufficient to authorize the to sell or convey unless under the prescribed and no authority under such power having been shown, the defendants relied upon showing by evidence a and adoption by'Ewer of the deed of conveyance made by Moore under said power. There is a want of the of long possession, cultivation and use, accompanied by continued acquiescence on the other side, as in McDow v. Rabb, 56 Tex., 158, or of such circumstantial evidence of the former existence of due and ample authority traced to a distant and remote period, under which, after such a lapse of time, it was allowed to be presumed the was made, in Watrous v. McGrew, 16 Tex., 513; Daily v. Starr, 26 Tex., 566. If the deed and bond were contemporaneously for the purpose of exchange, they are deemed and construed as one instrument. Dunlap v. Wright, 11 Tex., 597. The legal effect would be, as between the parties, to entitle the grantor in the deed to enforce a reconveyance of the legal title in case of the default of the grantee to comply with his obligation to convey the land, or whenever he should see proper to abandon the contract thus made to exchange lands. Ross v. Armstrong, 25 Tex. Supp., 369.

The conclusions of the court upon the evidence are well supported and are entitled to the same consideration as would be the finding of a jury, and we perceive no sufficient reason for disturbing the special findings, either of fact or law. The judgment, therefore, ought to be affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    G. W. Williams v. J. Mudgett.
    Practice.—Trial by eleven jurors agreed to, objection comes too late when first urged on motion for new trial.
    Fence, wire.— When dangerous; built on public or usually traveled road.
    Negligence, contributory.—Intoxication of-plaintiff no bar to recovery.
    Appeal from Rockwall county. Opinion by Delaney, J.'
    Statement.— G. W. Williams brought this-suit against J. Mudgett for damages and injuries alleged to have been sustained by him, Williams. He alleged that while traveling in the night-time, in Rockwall county, along a regularly laid out and established public road and highway, which was regularly used by the traveling public, and known as the Millwood and Terrell road, he rode into a barbed wire fence which was built angling across said road, and that he and the animal upon which he was mounted received wounds, bruises, etc., to plaintiff’s damage ($6,100). That plaintiff was unacquainted with said obstruction, and did not see it or know of it till he rode into it; that defendant, without authority of law, erected said obstruction across said road.
    Defendant pleaded general denial, and that plaintiff was guilty of contributory negligence, being intoxicated, and running his horse at the time he received the injury. Trial was had before eleven men, as one juryman was sick, and trial continued by consent and agreement of both parties, and verdict and judgment rendered against plaintiff. Plaintiff filed motion for new trial, which was overruled. Plaintiff appeals.
    The judge below charged that if the fence was not erected across a public road, the defendant would not be responsible for injuries sustained by plaintiff.
   Opinion.— Held, that if defendant had placed a proper fence there, one which was not dangerous and which could be readily seen by men and animals in passing, such charge would have been correct, but in view of the fact that the fence consisted of two wires stretched on posts twenty feet apart, that it was not a legal fence, and therefore the charge was erroneous. There is no doubt that defendant had the right to fence his land outside of the limits of the public road as it had been laid out; but as he had formerly allowed people to pass there, it was his duty, when he withdrew the privilege, to do so in a way not to endanger other people. One must use his own property so as not to hurt or endanger others, at least when he has allowed them certain privileges on that property. See Wharton, sec. 349. Our law regards a fence composed entirely of posts and barbed wire as a dangerous fence. See Acts 1879, ch. 101, Appendix to B. S., p. 12.

We do not think the court erred in admitting evidence which tends to show that plaintiff and companions were drunk. But it should be remembered that intoxication does not deprive a party of the protection secured by the law to sober people. The plaintiff therefore forfeited no right by being drunk, if he were actually so, but his being drunk does not release him' from the duty of being cautious and careful just as other people. Field on Dam., sec. 198.

¡Reversed and remanded.


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    Daugherty et al. v. Gibbs & Carter.
    Injunction.—On dissolution of, plaintiff entitled to continuance unless answer denies the equity in the petition; then plaintiff must ask for continuance, otherwise he may be dismissed.
    Appeal from Dallas county. Opinion by Walker, J.
    Statement.— Suit by appellants by injunction to enjoin Carter from further prosecuting a suit in the justice’s court on two notes, instituted by him against appellants as makers, and Gibbs, the original payee and indorser of the note. The grounds of the bill were that the notes were purchase-money notes, given by appellants to Gibbs for a tract of land; that the title to the land was doubtful and a suit against them was pending by an adverse claimant, from which there was danger of eviction; that Gibbs is insolvent and they are without remedy on the warranty in his deed; that Carter acquired the notes as collateral security after maturity. Defendant’s answer denied that the notes were acquired as collateral or that they were obtained after maturity, but alleged their acquisition before maturity and without notice of any defense against the notes. Defend- ' ant moved to dissolve the injunction, “ because defendant’s answer duly sworn' to shows that the notes, which were negotiable notes, were transferred for value before they were due.”
    The court dissolved the -injunction and dismissed the suit.
   Opinion.— Held, the motion to dissolve the injunction was properly sustained. 1 Tex., 58; 2 Tex., 57.

On the dissolution of the injunction plaintiffs were entitled to require that the petition be continued over for trial or hearing as an original suit. 23 Tex., 292; Dallam, 436. But if the answer denies the equity in the petition it is not error to dismiss the suit, unless the plaintiffs ask that the petition be continued over for trial or hearing as an original petition or suit, which must appear of.record. 12 Tex., 60; 27 Tex., 565.

Affirmed.


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    T. & P. R. R. Co. v. John A. Fitch.
    (No. 319.)
    Contract.—Failure to perform authorizing a recovery by opposite party.
    Appeal from Grayson county. Opinion by Watts, J.
    Statement.— On September 2,1,1875, appellee filed a petition in the district court of Grayson county, and amended March 16, 1880, seeking to recover from appellants $500 with interest. The petition alleged, in substance, that in the year 1872 appellant, being about to construct its railroad through Grayson county, entered into a contract with divers citizens of Sherman, by which it agreed to construct said railroad through Grayson county within twelve months from the time said contract was closed, which was on December 9, 1872, and said citizens agreed in the manner specified to pay to it $150,000, which was made by subscription, to which appellee subscribed $500. That among other things the citizens agreed to furnish depot grounds for said company, and did so furnish ground, which was not accepted, and it was agreed that certain citizens who agreed thereto should furnish other depot grounds, and that the amounts paid by each should be credited on the sum subscribed by him on the original subscription; that appellee paid toward the purchase of said depot ground $500, which was accepted by appellants as a full satisfaction of his original subscription.
    Appellant did not complete its said road through said county within the time agreed upon, but received title to the depot grounds so purchased. Defendant pleaded general denial, and specialty: 1st. That the citizens of Sherman had agreed to furnish depot grounds. 2d. That a vote by the citizens of Sherman changed original contract so as to release the company. Case tried May 17, 1880. Verdict and judgment rendered for Fitch for $500 and $243.33 interest.
   Opinion.— As between the parties to the record there was no change in the stipulations and conditions in the original contract except that at the instance of appellant the appellee paid in advance the $500 which, by the terms of the contract, he was not required to pay until the road was completed through the county. This payment by appellee did not release the appellant from its obligation to complete the road through the county in the time named. In other words, as appellee paid"the money in advance at the request of appellant and to secure it the desired ground, appellee did not thereby waive the conditions precedent entitling appellant to the money. This was the view of the contract presented in the charge to the jury, and we think it correct. By the agreed statement it appears that the appellant did not comply with its contract. The road was not completed through the county within the time named, and in fact had not been completed at the time of the trial in the court below.

Affirmed.


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    John Thompson v. Everett Johnson, Jr.
    (No. 262.)
    Presumption — Land certificate.— A valid location upon land severs it for one year from public domain, and a pre-emptor is in no better position than a locator.
    Appeal from Jack county. Opinion by Delaney, J.
    Statement.— This suit was brought by appellant against appellee to cancel a patent issued to the latter and remove cloud from the title to a tract of land held and claimed by the former. Plaintiff claims that he is entitled to the land as a homestead by pre-emption.
    He had settled on the land with his family on October 16, 1874; believed it vacant; had it surveyed on December 16, 1874, and the field-notes returned to the land office.
    On December 6,1877, he made the proper proofs of residence, etc., and had them filed in the land, office, and has occupied and claimed the land as his homestead up to the present time.
    Defendant claims the land under a patent issued January 20, 1875. Plaintiff claims that this patent was unlawfully issued, and is a cloud upon his title; he prayed for cancellation, that the plaintiff be quieted in his possession, and for general relief.
    Defendant answered that on May 23,1873, one A. B. Bur-net, with his family, had gone upon the land and pre- ’ empted it as his homestead; had it surveyed May 24,1873; had improved and occupied it until October 7, 1874, when he, together with his wife, conveyed it to him (defendant); that he took possession of it on the same day, and placed workmen on it to improve it, and they were on it on the 16th day of that month, when plaintiff took possession and dispossessed them by force; that, upon the day of his purchase from Burnet and wife, he made a file upon the land of a genuine land certificate (describing it); that on December 11, 1874, he had the land surveyed by virtue of this certificate, and afterwards the field-notes were applied to another certificate for unlocated balance to one Keller, and that upon January 20, 1875, a patent issued to him for the land; that when plaintiff took possession he was fully informed of defendant’s rights to the land. Case submitted to the court and judgment rendered for defendant.
    Plaintiff appeals, and assigns as error that the finding of the court was contrary to law and the evidence. Upon, trial defendant offered in evidence a copy, certified from the land office, of the transfer to him of the Keller certificate, upon which the patent issued. The plaintiff objected because it had not been recorded in Jack county, and, not being a record of the land office, a certified copy from that office was not admissible.
   Opinion.— This objection cannot be maintained, as the commissioner had passed upon the validity of the assignment and had issued a patent to the assignee. From, that time the assignment became a record of the land office, and the copy was properly admitted. Short v. Wade, 25 Tex., 510; Mason v. McLaughlin, 16 Tex., 24, But appellant insists that the transfer from Burnet and wife to appellee was void because it was not by deed authenticated as required by act of March 24, 1871. Pasch. Dig., art. 7103. But we cannot accept this conclusion. The act of 1871 above referred to does not apply to transfers like' that of Burnet and wife. By its terms it applies to transfers made after party has resided upon ,the land for three years and has acquired an equitable title to the la,nd. The case, then, may be stated thus:

Appellee made a valid location upon the land on October 7,1874. This severed the land from public domain for one yeár. A location by another party within the year was void as against appellee. McKinney v. Grassmeyer, 51 Tex., 376.

A pre-emptor would be in no better position than a locator. Another point made by appellee is that the location and survey were made by virtue of one certificate and patent issued upon another. But when a party has appropriated land by a valid location and survey, no one but the locator and the state have any interest in the land, and if the state patents the land upon a different certificate, no other persons have a right to complain.

Affirmed.


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    Moore et al. v. Ingram & Chambers.
    (No. 4197.)
    Lien—Notice.-- Held, that it makes no difference whether deed is recorded or not where party had full notice.
    Appeal from Hill county. Opinion by Watts, J.
    Statement.— Appellants James R. Moore and Octavia Moore, joined by" her husband R. W. Moore, brought this suit on a promissory note and for foreclosure of a vendor’s lien. The facts are these: Ingram, September 27, 1871, executed two promissory notes to appellants; one due January 1, 1873, another due January 1, 1872, "each for the same amount, for the part purchase money of a certain tract of land.
    Appellants made deed to Ingram, in which a lien is retained by the vendors for the payment of notes, etc. Chambers procures the note first due and upon maturity sues Ingram upon the note, and, procuring a foreclosure, becomes the purchaser before note now sued on was due, and, without making appellants plaintiffs to the suit, claims full title to the land free from their lien. Held, the interest of B. W. Moore in the land, when conveyed by him to his wife, became her separate property. Peters v. Clements, 46 Tex., 115.
    Appellee’s counsel insist that he ought to hold the entire tract of land under his purchase because the deed from plaintiff to Ingram was not recorded, and because the deed does not accurately describe the second note as to date.
   Opinion.—Held, it makes no difference, so far as Chambers is concerned, whether the deed was recorded or not, so as he had full notice of its contents. Held, the deed informed him that there was another purchase-money note outstanding, and it pointed him to the source from whence he could learn all about it, if he was not already fully informed. He did not make the holders of this second note parties to his purchase suit against Ingram; therefore their rights were not thereby affected. Byler v. Johnson, 45 Tex., 509; Preston v. Breedlove, id., 47; Cannon v. McDaniel, 46 Tex., 305.

The deed retaining an express lien on the land for the payment of the notes, superior title still remains in appellants. Compton v. Baker, 52 Tex., 252; Peters v. Clements, 46 Tex., 115.

In this case it makes no difference that the note is barred by limitation. Chambers, being the holder of one of the notes and having purchased at the said sale, is entitled, upon payment of the other note and the interest, to a decree for the land. Should he not propose to do this, a decree should be entered ordering an undivided half interest in the land to be vested in each, appellants and appellee , Chambers.

Reversed and remanded.


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    W. P. Douglass v. Mary Moore et al.
    (No. 3593.)
    Limitation.—Three years’ limitation will not run where defendant acquired property from surviving husband by deed given after death of wife without authority to convey more than his share.
    Appeal from Guadalupe county. Opinion by Walker, P. J.
    Statement.— The assignments of error in this case pre- • sent the single question whether the evidence established, as against either Mrs. Mary Moore or Mrs. Ellen Partain, the defendants’ pleas of the statute of limitation. The facts are agreed on which must determine that proposition; there is no dispute concerning them.
    The plaintiffs claim by inheritance through Margaret " Swift, their mother, who was the. wife of Arthur Swift, their father. The parents were married July 3, 1845; the mother died March 17, 1853. Mrs. Moore was born July 3, 1846. Mrs. Partain was born March 6, 1853. The former was married to her present husband, W. E. Moore, December 15, 1869; Mrs. Partain was married to her present husband, T. E. Partain, ¡November 25, 1874.
    Arthur Swift acquired the property in dispute by deed from one Sheffield, during the marriage with the mother of the plaintiffs, and he conveyed the same (all the lots referred to in the petition) to the defendants after his said wife’s death. The defendants produced on the trial a chain of title from said Arthur Swift to themselves under deeds duly recorded, and proved that they had possession since the spring of the year 1854, the date of their deed, and that all taxes had been paid by the defendants on the property during the whole period up to the time of trial.
   Opmiosr.— The facts do not require of us to consider the subject with reference to the plea setting up the bar of three years,’ adverse possession, for the reason that the defendants rely on adverse possession, under a conveyance by Arthur S wift, of property which appellee, under the evidence, claims to have belonged to the community estate of himself and his deceased wife aforesaid, made after her death. Without authority to convey a greater interest than his own share or one-half, such a conveyance does not convey title or color of title to the interest which descends to th.e heirs of the wife; and as to such interests, it will not.support a defense of the statute of limitation of three years. Veramendi v. Hutchins, 48 Tex., 550. Proof shows that the statute of limitation had only run against Mrs. Partain three years, two months and twenty days. The judgment, therefore, was well sustained as to her, in so far as relates to the question of limitation. Grigsby v. Peake, 57 Tex., 142.

Mrs. Moore was barred by statute of five years’ limitation, having attained her majority July 15, 1867. But she was further protected by sections 14 and:43, article 12, of state constitution of 1869. Said constitution was accepted by congress March 30, 1870, but she was not entitled to tack the disability of infancy to that of her coverture. Id. Therefore she was barred at the time of filing this suit on the 5th day of April, 1877, more than seven years having elapsed. The interest, therefore, which Mrs. Moore inherited directly from her mother is barred by statute of limitation.

But at the time of Mrs. Swift’s death she left surviving her, besides Mrs. Moore and Mrs. Partain, two other daughters. Martha Swift, born October 24, 1850. Martha married W. 0. Collins October 18, 1868; died before her husband, February 11, 1874, leaving no children. Margaret died July 2,1871, unmarried. Their father and mother having died before them, Mrs. Moore and Mrs. Partain inherited their estate.

Limitation began to run against Martha Collins March 30, 1870; consequently the bar of five years’ limitation had not been effected at her death, February 11, 1874. Its operation was also suspended for twelve months after her death unless administration was had thereon sooner. Art. 4607, Pasch. Dig. Under the constitution of 1876, the bar of statute was limited to five years on and after April 18, 1876. The rule in Gautier v. Franklin, 1 Tex., 743, prescribing an equitable apportionment of the time of adverse occupancy under the different laws under which it was held, applies. The result is that on the 18th of April, 1876, the statute had run against Mrs. Collins’ and Mrs. Moore’s interest in her estate five years and eighteen days, equal to five-sevenths and eighteen three hundred and sixty-fifths• of seven years, and it required two-sevenths of five years’ adverse occupancy after the 18tli of April, 1876, to effect a bar under the five years’ statute. Two-sevenths of that time being equal to one year, five months and nineteen days, the bar would not be complete until October, 1877; therefore Mrs. Moore is not barred as to her interest in Mrs. Collins’ estate. Margaret Swift dying during her minority in 1871, statute had not begun to run; therefore neither Mrs. Partain nor Mrs. Moore are barred in their interest in Margaret Swift’s estate. But Mrs. Partain is not barred as to her equal inheritable share in Mrs. Collins’ one-fourth part of their mother’s community interest.

For error in awarding to Mrs. Moore one-fourth of the property in dispute, the judgment will be reversed, and the appropriate judgment rendered by the supreme court, which is that plaintiff Mary Moore, in her separate right, joined by her husband, W. E. Moore, recover one-eighth part of lots described in petition. That Ellen Partain, in her separate right, joined by her husband, T. E. Partain, recover two-eighths of said lots, and that defendants have the remaining five-eighths according to their respective interests, and that the cause be remanded for proceedings to partition said lots in accordance with the judgment which is here rendered.

Reversed and bendebed.


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    E. Herschell (claimant) et al. v. L. & H. Blum.
    (No. 4907.)
    Separate property.— Wife cannot borrow money to go into business and hold, it exempt.
    Appeal from Johnson county. Opinion by Delaney, J.
    Statement.—• This was a trial of the right of property in certain goods. On April 26, 1880, appellees recovered a judgment in the county court of Galveston county against L. Herschell (husband of appellant E. Herschell) for ,$688.31, with interest at twelve per cent, per annum from May 21, 1877, besides costs, $14.25. An execution upon this judgment was levied by the sheriff of Johnson county upon certain property in Bismark Saloon, as the property of L. Herschell, which was valued by the sheriff at $632. On April 30,1880, appellant E. Herschell, as claimant, joined by her husband, L. Herschell, filed her affidavit and claim bond with the sheriff. The cause was tried April, 1882; verdict for plaintiffs for all property except bar fixtures, amounting to $129.50. Judgment ivas rendered against Mrs. Herschell and her husband and the sureties for remaining value of property, together with interest and ten per cent, damages, amounting in all to $637.67. Motion for new trial made and overruled. It appears that 1. Herschell (defendant in execution) had, prior to 1878, been selling dry goods, and had failed, was in debt and insolvent. In 1878 Mrs. Herschell obtained from three of her relatives some $600, which she invested in the Bismark Saloon and the fixtures and outfit; business conducted in her name and license so obtained. Husband acted as one of her barkeepers. The family was supported and rents paid out of the business. Mrs. Herschell claimed the property as her separate' property, not subject for her husband’s debts. Claimant insists that when she borrowed money to go into business it became her separate property.
   Opinion.— If she had received the money by gift, devise or descent, it would have been her separate property without doubt, and she might have invested it in business without losing any exemption. But to borrow money for the purpose of engaging in business is quite a different matter. If the husband should borrow money for such a purpose it would certainly become community property. Upon what principle can the wife borrow money and make it her separate property? Rev. Stats., art. 2852. We conclude the money was community property, and the property purchased with it liable to execution for the debts of the husband.

Affirmed.


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    Nix & Story v. J. M. Cardwell et al.
    (No. 4825.)
    Liens.— In suits for foreclosures of mortgages and other liens, all subsequent incumbrancers, of whose claim notice is given before the filing of the suit, either by possession or registration, must be made parties or they will not be affected by the foreclosure.
    Limitation.— Debt, if barred by, the creditor is left without a remedy, but it does not extinguish the debt; and the debtor may ordinarily waive the bar, and if he fails to assert it as a defense he is held to waive its benefits. But if the debtor has parted with property which might be affected by limitation, the person taking his place may avail himself of the pleas with respect to that particular property.

      Appeal from. Caldwell county. Opinion by Watts, J. •
    Statement.— On March 21,1881, appellants brought this suit of trespass to try title against appellee to recover the lot described in the petition. Their claim of title is as follows: Through the foreclosure and sale thereunder of a mortgage executed by the lodge to Collins, dated January 1,1874, to secure a note of the same date and due January 1, 1875. Collins brought suit upon note and to foreclose the mortgage March 10, 1879, and September 28, 1880, judgment was rendered in favor of Collins for the amount of the note, and decreeing a foreclosure of the mortgage. December 7, 1880, appellants became the purchasers at the foreclosure sale.
    Appellees claim under a mortgage executed to Anthony Cardwell by the lodge November 8, 1875, to secure a note of same date, due twelve months after date, which mortgage was duly recorded upon the day of its date.
    August 25, 1879, Anthony Cardwell brought suit upon that note and to foreclose the mortgage, and on March 26, 1880, judgment was rendered for the amount of the note and decreeing a foreclosure of the mortgage. Sale was made thereunder June, 1880, and the property purchased by J. M. Cardwell, one of the appellees. Cardwell was not a party to the foreclosure suit of Collins, and that was asserted as a defense by the appellees. They also asserted as a defense that the note of Collins was barred by limitation before he instituted his suit.
    Tried before the judge and judgment rendered for appellee.
   Opinion.— The rule is well established that in suits for ' foreclosure of mortgages and other liens, all subsequent incumbrancers, of whose claim notice is given before the tiling of the suit, either by possession or registration, must be made parties or they will not be affected in any manner by such foreclosure. Peters et al. v. Clements, 46 Tex., 114; Cannon v. McDaniel et al., id., 303; Wright v. Wooters et al., id., 380; Byler v. Johnson et al.,45 Tex., 509; Delespine et al. v. Campbell et al., id., 628; Davis v. Rankin et al., 50 Tex., 279.

As a general rule the defense or plea of the statute of limitations is a personal privilege of the debtor which may be asserted or waived at his election; however, if he has parted with his interest -in property which might be affected by the defense of limitation, either by absolute conveyance or mortgage, then the person standing in the place of the debtor, with respect to the particular property, may avail himself of that defense to protect his rights to the same.

After the execution of the mortgage to Cardwell the mortgage could not renew the barred debt of Collins so as to affect Cardwell’s right to, or interest in, the property. Lord v. Morris et al., 18 Cal., 482; Grattan v. Wiggins, 23 Cal., 16; Connor v. Brown, 23 Cal., 143; Dawson v. Calloway, 18 Ga., 573; Wood on Limitation of Actions, sec. 41; Wait's Actions and Defenses, vol. 2, p. 236. It would have, been a sufficient defense to defeat a recovery by appellants to have asserted that Cardwell had not been made a party to the foreclosure suit by Collins; hence those claiming under the Cardwell mortgage have the superior right to the property in controversy.

Affibmed.


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    G. H. Mensing v. Axer and Engelke.
    (No. 804.)
    Evidence.—Depositions cannot be answered by an agent.
    Lien.— Property held by virtue of a mortgage is liable to levy and sale subject to the mortgage.
    Appeal from Washington county. Opinion by Watts, J.
    April 8, 1879, appellant commenced this proceeding by garnishment against Engelke, claiming that Axer was then indebted to him by a subsisting judgment for $3,514, and that Engelke was indebted to Axer and had effects in his possession belonging to him, June 28, 1879; Engelke answered that by virtue of a certain contract between him and Axer, made October 1, 1878, he advanced large sums of money on cotton purchased by Axer and held the cotton under that contract; that he was not indebted to Axer and did not possess any effects belonging to him, etc. September 5, 1879, one Brown, as agent and attorney in fact for Engelke, filed an amended answer, alleging that his principal was in Europe by advice, of his physician, and that he (Brown) was the duly authorized agent and attorney in fact of Engelke and as such made the answer. This amended answer sets up the transaction between Engelke and Axer respecting the purchase, payment and sale of cotton under the contract, etc,; that the proceeds of the cotton, sold and unsold, was not sufficient to pay Engelke the amount of the advancement, etc. Appellant specially excepted to this amended answer, claiming it could not be sworn to by an agent. Exception was overruled. Appellant contested the answer, asserting that the alleged contract was fraudulent and void because entered into with the intention of placing Axer’s property beyond the reach of and to hinder and delay creditors, etc. Tried before the court, April 25, 1880. Judgment rendered discharging garnishee,
   Opiotoií.—While the proceeding by garnishment is the creature of statute, and therefore a legal remedy, nevertheless it is in the nature of a bill of discovery. The remedy is not based upon any supposed default of the garnishee in complying with any contract existing between him and the plaintiff, but the object of the proceeding is to ascertain whether or not he is indebted to or has in his possession effects of the debtor of the plaintiff so that the same may be made subject to the debt. As was said by Chief Justice Eustis in Dickson v. Morgan, 7 La. Ann., 491: “The power of answering interrogatories on oath we do not think can be conferred by one person upon, another. True, the statute provides that affidavits may be made by agents or attorneys, but that does not authorize the party to whom, interrogatories are propounded to answer them by agent or attorney.”

By the terms of the Revised Statutes, article 2295, property held as a pledge, or by virtue of a mortgage, is liable to levy and sale, subject to the pledge or mortgage, and the purchaser at such sale is entitled to possession of the property upon complying with the terms of the pledge or mortgage.

In our opinion the court erred in overruling the special exceptions to the amended answer.

Reversed and remanded.


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    Texas & Pacific R’y Co. v. David McClanahan.
    (No. 844.)
    Master and servant.—Meld, where an employee of one railroad is injured while attending to his duties by a defective brake on a car belonging to a different road, the question of ownership of the car does not affect the question of the liability of the employer.
    Appeal from Lamar county. Opinion,by Watts, J.
    Statement.— Appellee brought this suit against appellant to recover §20,000 damages for personal injuries. The evidence shows that he was in the employment of appellant as a section hand, and as such was subject to the orders of the section foreman; that his duty was to assist in keeping the track in order and in loading cars with cross-ties; that while discharging his duty under the supervision and direction of the company’s agent he was severely and permanently injured by reason of a defective brake on one of the cars, his leg being broken in two places and his ankle dislocated, besides other bruises and wounds; that he knew nothing of the defect in the brake until after the injury, but that it was known, or could have been known, to appellant by the use of reasonable care and diligence.
    Appellant pleaded a general denial, and specially that ap= pellee was injured by reason of his own fault or negligence; and further, that injury was occasioned by the negligence of appellee’s fellow-servants, etc.
    A trial was had and verdict for plaintiff for $4,500, from which this appeal is taken. Errors relied on for a reversal are: That the court erred in giving thp charge asked for by appellee, because it did not explain the control over the train that would render appellant liable for the injury received by appellee, and that the court erred in not setting aside the verdict on the ground that it was contrary to the law and evidence in certain particulars.
   Opinion.— No issue was made by the pleadings as to the ownership of, or control over, the train or particular car upon which it is claimed that appellee received the injury. Evidence was admitted without objection to the effect that the train was owned and operated by the Mo. Pac. P’y Co., and it was upon that supposed issue that the instructions were given that are here assigned as error. It is well settled that facts not alleged, although established by evidence, cannot form the basis of a decree or judgment. Hall v. Jackson, 3 Tex., 305.

Appellee was then the servant in the employment of the appellant as a section hand or laborer. As such his duty was to aid in repairing the track and loading cars with cross-ties, and in the discharge of this duty he was subject to the orders of the section boss; and while engaged in the discharge of these duties he was directed by appellant’s agents, to whose orders he was subject, to assist in loading this train with ties.

The relation of employer and employee did not exist as between the appellee and the Mo. Pac. E’y Co.; he was the servant of the appellant and working under his directions and orders. So long as this relation exists and he was laboring under the orders of appellant, the latter was bound to exercise reasonable care in selecting the place as well as the instrumentalities with which the business is prosecuted. Wood on Master and Servant, p. 680, etc. In the language of the text-writer, “the master is bound to the exercise of reasonable care in reference to all the appliances of the business, and is-bound to protect his servants from injury therefrom by reason of latent or, unseen defects, so far as human care and foresight can accomplish that result.” It appears the real cause of the injury was the defective car-brake, and that this defect could easily have been detected by an inspection. This, as appears from the evidence, was not such latent-defect as could not have been detected and remedied by the exercise of reasonable care. As shown by the evidence, the injuries were severe and disabilities resulting therefrom permanent; therefore it cannot be justly said that the verdict was excessive:

Affirmed.


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    A. M. Lay et al. v. Blankenship & Co.
    (No. 1735.)
    Jurisdiction is determined by amount claimed in petition; in doubtful cases all presumptions are in favor of jurisdiction.
    Appeal from Caldwell county. Opinion by Watts, J.
    Statement.— Appellees sued appellants in the district court to recover $300, the alleged value of five bales of cotton, and also $300 exemplary damages for the fraudulent and malicious disposition and conversion of same. Appellants’ answer comprised a general denial, general demurrer and special answer, which latter was stricken out on general demurrer by appellees. Appellants’ general demurrer was overruled, and upon hearing the evidence court rendered judgment in favor of appellees for $286.16. The motion in arrest of judgment calls in question the jurisdiction of the court over the subject-matter. A motion for a new trial being overruled, this appeal is prosecuted, and the only errors noticed in the opinion are such as relate to the jurisdiction of the court over the subject-matter of the suit.
   Opinion.— As a general rule, in actions ex contractu the question of jurisdiction is determined by the amount of damages claimed in the petition, and not by the amount recovered. But where it appears that the party claimed damages not recoverable under the facts and circumstances of the case, and that this was done for the purpose of conferring jurisdiction where it would not attach if the demand had been properly stated, the cause will be dismissed. However, if there is a reasonable doubt as to whether the damages claimed are or are not recoverable, and where the party might have had reasonable ground for believing that he would recover an amount sufficient to confer jurisdiction, the case will not be dismissed, and in all doubtful cases of this kind all presumptions will be in favor of jurisdiction. Graham v. Roder, 5 Tex., 146; Bridge v. Ballew, 11 Tex., 270. It admits of doubt whether the demand, as stated in the petition, would confer jurisdiction upon the district court. While the value of the cotton is alleged to be $300, exemplary damages are claimed to the amount of $300, thus fixing the amount at $600.

As a basis for the claim for exemplary damages appellants are charged with combination, fraud and malice in selling the cotton. Fraud or malice may constitute the foundation for such a claim, and under certain circumstances will warrant a recovery therefor. One of the reasons given for allowing this class of damages is that it is in the nature of a punishment and results in deterring a party from a repetition of such practices, and thereby protects the public against them.

A party may be actuated by ill-will, or design to injure, yet if there is probable cause, no recovery for exemplary damages can be had. Culbertson v. Cabeen, 29 Tex., 255. And so in cases of malicious prosecution. Landa v. Obert, 45 Tex., 539. It seems clear to us that the damages were alleged for the purpose of improperly conferring jurisdiction upon the district court.

Reversed and dismissed.


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    Ayers et al. v. Shackey.

      (No. 1597.)
    Homestead.—May curtail by devoting a portion of it to other purposes without absolutely parting with the title.
    Appeal from Washington county. Opinion by Delaney, J.
    Statement. — There is but one question in this case: whether or not appellees abandoned the homestead. The facts, in substance, are these: Appellees acquired the property as their homestead in 1870, and lived upon it until some time in 1876. It consisted of a part of a city lot, fronting sixty feet on one street and ninety feet on another. Appellee, some time in 1876, made a contract for the erection of three store-houses on the lots, which were completed late in that year. These houses covered the entire front on one street, and left- á strip of ground fronting thirty feet on the other street, and running back sixty feet. Soon after completion, the building farthest from the front of the smaller lot was sold. Before these houses were put up appellees’ dwelling and improvements were removed and the shade trees cut down. • Appellees lived a short time in a rented house in town, and then resided in the. country with the wife’s relations. They stated their purpose to be to rent the stores until they were able to build a dwelling upon the vacant lot. Treating these facts as an abandonment, appellants present these propositions: 1. A homestead is lost by its abandonment, although a new homestead is not acquired. 42 Tex., 195. 2. The homestead is determined by the character of its use. 59 Tex., 82; 57 Tex., 614. 3. The use of the premises for'the support of the family does not of itself make it a homestead. 48 Tex., 230. 4. The husband and wife may curtail the homestead by devoting a portion of it to other purposes without absolutely parting with the title. 47 Tex., 365; 40 Tex., 440; 59 Tex., 32.
   Opinion.— Held, these propositions are indisputable, yet the evidence of abandonment “must be undeniably clear, and beyond almost the shadow, at least of all reasonable ground, of dispute.” 20 Tex., 96. If the head of the family, with the consent of his wife, given in any manner prescribed by law, shall permanently devote a part of the residence to purposes other than those of a home, the part so appropriated and used would lose its exemption.

The court erroneously charged the jury that when “ property once becomes the homestead, so long as it so remains the husband cannot, by building houses thereon, so separate a portion of it as to subject it to forced sale, as that would be doing indirectly what he could not do directly,” as this charge was not applicable to the facts.

Reversed and bemandeb.


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    G., C. & S. F. R'y v. W. W. Styron, next friend, etc.
    (No. 4902.)
    Party plaintiff.—Held, that a father cannot maintain a suit in his own name for the benefit of his child, a minor.
    Appeal from Johnson county. Opinion by Watts, J.
    Statement.— On August 16, 1882, W. W. Sty ron, who sued as next friend, and for the use of Millie Styron, a minor, brought this suit against appellant to recover $30,000 damages for injuries received by said minor while playing on a turn-table belonging to appellant, which injuries, it is alleged, were caused by the negligence of the appellant, in that the turn-table was neither inclosed nor so fastened as to render it safe.
    Appellant answered by general and special exceptions, and general denial. The ground for special exceptions was that there was a defect as to the parties plaintiff, for that Millie Sty ron, the party alleged to have been injured, was not a party to the suit. This special exception was overruled. Judgment and verdict for plaintiff for $8,000.
    The only error deemed material, of the several assigned and relied upon, is that with reference to the ruling of the court-on the special exception to the petition.
   Opinion.— If this suit had been instituted by a duly appointed and qualified guardian, no objection could have been successfully urged on that ground, as our statute provides that “ the guardian of the estate is entitled to the possession and management of all property belonging to the ward, to collect all debts, rents or claims due such ward, to enforce all obligations in his favor, to bring and defend suits by or against him.” Rev. Stat., art. 2542. Also, H. & T. C. R’y Co. v. Bradley, 45 Tex., 171. It is now settled since the adoption of the Revised Statutes, as was the case prior to the passage of the probate act of 1870, that a minor may, as plaintiff, prosecute suits by next friend in this state. Evanich v. G., C. & S. F. R. R. Co., 57 Tex., 126; Abrahams v. Vollbaum, 54 Tex., 226; Glasscock v. Shell, 57 Tex., 215; Brooks v. Clark, id., 105; Cannon et al. v. Hemphill et al., 7 Tex., 201; Robson v. Osborn, 13 Tex., 305. At common law the rule was stated in Chitty on Pleadings, volume 1, page 60: “ The action for an injury to the absolute rights of persons, as for assaults, batteries, wounding, injuries to the health,' liberty and reputation, can only be brought in the name of the party immediately injured.” And it is stated in Dicey on Parties to Actions, that “ the person who sustains an injury is the person to bring an action for the injury against the wrong-doer.” Rule 79, p. 353. Also, Story’s Equity Pleadings, p. 54

"We are of the opinion that the special exception was well taken. Appellant had the right to have the name of the plaintiff clearly set forth, so that no question might thereafter arise as to who was the real plaintiff in the suit. It is our conclusion that the court erred in overruling the special exception to the petition as to defect in the party plaintiff.

But the objection that the suit cannot be maintained by the plaintiff as stated in the petition, and that the judgment as rendered ought to have been arrested, is the real question for consideration and determination in this case. Throughout the petition, W. W. Styron, the father, is the plaintiff. True, he describes himself as next friend of Millie Styron, a minor, and as her next friend complains of the injuries. Everywhere he, and not the injured girl, is the plaintiff, and the prayer of the petition is as follows: “ Wherefore the plaintiff prays that he, as next friend of Millie Styron, shall have and recover of and from the said defendant, for the use and benefit of her (the said Millie Styron), the sum of §30,000, and ¿11 costs,” etc.

That portion of the judgment which is material to the question is in these words: “ It is therefore ordered, adjudged and decreed by the court that the plaintiff, W. W. Styron, as next friend of Millie Styron, do have and recover of and from the Gulf, Colorado & Santa Fe Railway Company the sum of §8,000, and all costs in this behalf expended, for which let execution be issued in the terms of the law, as directed by law; said sum to be recovered as aforesaid by said W. W. Styron, for the sole use and exclusive benefit of said Millie Styron, a minor as aforesaid.”

In the case of Glasscock v. Shell, 57 Tex., 218, John Shell, the father and natural guardian of Virgin C. Shell, sues, but no question was made in respect to that matter, and the judgment was rendered on other grounds.

In case of Bradley v. Amidon, 10 Paige’s Chancery Reports, where the father of minor children, who was their regularly appointed guardian, brought suit in his own name, as such guardian, for certain property, the vice-chancellor decreed him the estate. But upon an appeal the chancellor said: “No decree could properly be made upon the bill where no person having an interest in the estate of the testator is a party, either complainant or defendant. A decree made in this suit would not protect the defendants from further litigation anew with the infants themselves.” For further references see Newton v. Nutt, 59 N. H., 601; Fox v. Minor, 32 Cal., 116; Hoars v. Harris, 11 Ill., 25; Anderson v. Shaw, post, p. 285; Brook v. Clark, 57 Tex., 110.

Such a recovery might by implication be sufficient to conclude an adult for whose use the recovery was had, but no estoppel by presumption in such matters would bind an infant. As the recovery is not in the name of the minor, we are of the opinion that she would not be concluded by the judgment from maintaining an action against the company in her own name for-the injury.

Beveesed and demanded.


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    Lorance et al. v. Davis.
    (No. 806.)
    Trespass to try title.— Lien, priority of.
    Appeal from Johnson county. Opinion by Delaney, J,
    Statement.— Suit of trespass to try title. Briefly stated the history of the case is this: The lot originally belonged to Mohler, who sold it to Whitten, taking the latter’s note for a part of the purchase money, $370, which was transferred to the plaintiff herein.
    Whitten and wife deeded the lot to Thomas Wilkerson November 16, 1873. By agreement of the parties Whitten immediately assigned one of the purchase-money notes given by Wilkerson for $370 to plaintiff in lieu of the note given by Whitten and Mohler and assigned to plaintiff. On the day the deed was acknowledged, December 4,1873, Wilkerson gave Whitten a note for $400, which in some way passed to Lorance, who claimed that it was a purchase-money note and a lien upon the lot. In 1874 plaintiff sued Wilkerson on the note and obtained a judgment of foreclosure. In 1875 Lorance sued Wilkerson and obtained a judgment on his lien. In 1876 the land was sold under the two judgments, each party levying under his judgment. In response to special issues the jury found that the note held by Lorance was not given for purchase money. Judgment for plaintiff.
   Opinion.— Held correct; for even if the Lorance note had been for purchase money, the lien of plaintiff was a prior lien.

A remittitur of the judgment for use and occupation of the land having been entered, the judgment is affirmed.

Aeeibmed.


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    Renfro v. Huling.
    (No. 1749.)
    Fraud— Sale of land.—Held, where there "is evidence of a misrepresentation, relief should be granted injured party.
    Appeal from Lampasas county. Opinion by Watts, J.
    Statement.— Suit by appellee to recover a balance due on promissory note given for certain land in which a vendor’s lien was reserved. Appellant admitted executing the note, etc., but alleged that he purchased the land by the acre, and that there was not that number of acres in the land sold to him; also that appellee represented that there were one thousand acres of valley land in the tract, , when, in fact, there were but five hundred acres. Some hours before court opened appellant’s attorney submitted a supplemental answer to appellee’s attorney, who led the former to believe that there would be no objection to filing it. When the case was called appellee announced ready, and appellant asked leave to file his supplemental answer, which averred mutual mistake of both parties as to the quantity and quality of land, and asked relief on this account. The court refused the request.
   Opinion.—Held, the allowance or refusal of the court as to filing amendments rests largely in the discretion of the court, and while the appellate courts are strongly disinclined to revise the exercise of that discretion, yet such exercise must be according to law or it will be revised. Under the circumstances of this case the amendment should have been allowed to be filed. The deed in this case, unaided by extrinsic evidence, shows a sale in gross, the quantity of land being but a- matter of description. Held, in sales of land, though it might appear from a construction of the deed to be a sale in gross, yet, if in fact it was a sale by the acre, and so understood by the parties, and there is an unreasonable deficit, relief will be extended to the injured party unless he has in some way waived or forfeited his equity. 29 Tex., 312; 44 Tex., 455. The court’s charge submitted the issue as to the deficit in the tract, but not that as to the valley land, and it was error to refuse the special instruction asked covering this omission.

Reversed and remanded.


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    State of Texas v. Wells et al.
    Bond.— Sureties not liable on a tax collector’s bond, although approved by the commissioners’ court, when the same was rejected by the comptroller.
    Appeal from Travis county. Opinion by Watts, J.
   From the conclusions of fact found by the court it appears that the bond upon which the suit is based was disapproved and rejected by the comptroller. This finding is sustained by the evidence. The bond was not in accordance with the requirements of the statute, nor, as it seems, with the instructions emanating from the comptroller’s office. By the terms of the statute the bond, notwithstanding its approval by the commissioners’ court, was also subject to the approval or disapproval of the comptroller, and as it was not such bond as the statute required, it was his duty to reject it. The comptroller having refused to accept the bond for the state, and having returned it with appropriate instructions as to the manner in which the bond should be prepared and executed, it cannot be claimed with any show of reason that it was ever binding upon the appellees. An essential element to constitute it a subsisting obligation is entirely wanting. The state, acting through her authorized agent, refused to accept the bond, but rejected and returned the same.

Under the circumstances of this case, that the purported bond did not constitute a contract between the state and appellees is much too clear to admit of controversy.

In legal effect it amounted to nothing more than.a proposal made by one party and declined by another.

Affirmed.


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    Sarah E. Handley v. H. & T. C. R’y Co.
    (No. 815.)
    Railroad.—Liability of a railroad, ordinarily, to passengers.
    Appeal from Dallas county. Opinion by Delaney, J.
    Statement.— This suit was brought by appellant to recover damages of appellee for injuries received while on its train, said injuries having been caused by a defective road-bed.
    The evidence shows that in May, 1876, plaintiff went upon defendant’s cars at Austin, in company with a man named Hall, to go to Dallas. That Hall, in her presence and within her hearing, represented her as his wife; that she had no ticket; but that Hall had a free pass which had been issued to one Damon; that he passed himself on the conductor as Damon, and plaintiff as his wife; that no fare was paid for her on the portion of the road between Austin and McDade; that near McDade the car in which the plaintiff was riding was thrown from the track and several persons were injured, among whom -was plaintiff. There is nothing in the record to show the cause of the wreck except a remark made by a passenger, which was heard by plaintiff, that the wreck was caused by a rotten tie.
    The court charged that, if plaintiff aided Hall in his fraud and deception, and thus evaded payment of fare, she was as guilty as if she had done so herself.
    Verdict and judgment for the railroad, from which appellant appeals.
   Opinion.— Ordinarily, when a passenger buys his ticket and takes his seat oh the cars, there is an implied agreement on the part of the railway company to carry him in safety to his journey’s end. The consideration of this agreement being the price of the ticket, the company is bound to use such care as should secure the safety of the passenger. But we take the verdict in this case as establishing the fact that the plaintiff was not entitled to all the rights of a passenger, properly so called. She was on the train with the intention to obtain a ride without paying j the fare. She was a fraud upon the company. She was ; not, therefore, in a position to demand of the company’s j servants the same watchful care for her safety which they are bound to give regular passengers. The most she could claim would be, that they should abstain from intentional i injury, or that they should not be guilty of that gross neg- i ligence which the law regards as equally reprehensible.

Affibmeb.


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    W. H. Beatty v. W. W. Brooks.
    (No. 1610.)
    Lien, vendob’s.— Money paid by third party for benefit of grantee does not release vendor’s lien, when.
    Appeal from Burnet county. Opinion by Walkek, J.
    Statement.—Appellee brought this suit as administrator of the estate of Joseph Pullen, deceased, against appellants, T. A. Galbraith and O. H. P. Culberson, on a note given by T. A. Galbraith, W. H. Beatty and O. H. P. Culberson to Eobert Toe on the 4th day of December, 1880, in part payment for lots 1, 2, 3, and 4, in block 5, in the Peter Kerr portion of the town of Burnet, in Burnet county; said note was fully described in the deed from Toe and wife, .on said day and date, to W. H. Beatty, and vendor’s lien retained. Said note was transferred by Eobert Toe to Joseph Pullen on February 23, 1881, without recourse. Plaintiff filed his original petition October 12, 1881, supplemental petition October 13, 1881, and an amended petition in lieu of both November 3,1881. Defendant Culberson, November 4,1881, answered, alleging he signed note as surety for Galbraith and Beatty.

      Beatty on November 4, 1881, filed his answer: 1. A general denial. 2. That at the time of signing said note he (Beatty) and Galbraith were partners, and said partnership was dissolved July 13, 1881, and Galbraith assumed payment of all debts, and if any debt existed it was a partnership debt of said firm; and if judgment should be rendered against defendants on said note that execution should issue first against defendant Galbraith. 3. That note was transferred long after lots were paid for, and that the recitation that said note was for purchase money was fraudulently entered therein by Galbraith for the purpose of borrowing money, all of which Pullen knew prior to said transfer. 4. That the lots were at the time the note was executed the homestead of defendant, who was the head of a family. 5: Non est factum, under oath. November 8,1881, plaintiff filed his second supplemental petition, in which he pleaded: 1. A general denial of all matters pleaded by defendant Beatty. 2. That the note was executed for Beatty by Galbraith and Culberson, who were his agents, and that their actions in regard thereto were afterwards ratified by Beatty. 3. That Beatty ratified the acts of his agents by taking possession of the lots and using them as his own, and at the date of settlement referred to in his answer mentioned said note as his own individual debt and that it was for purchase money of said lots. 4. That Pullen was induced by Galbraith and Culberson, Beatty’s agents, to buy said note, as it was a vendor’s lien note.
    No answer being filed by defendant Culberson, November 10, 1881, the cause was tried by the court, and judgment rendered in favor of plaintiff against Beatty and Galbraith as principal and Culberson as surety, for the sum of §1,419.16, foreclosing the vendor’s lien on the lots and decreeing the sale of the lots to satisfy the judgment. Judgment further ordered that if lots did not sell for enough to pay said sum execution should issue against the defendants for balance.
   Opinion.— Hudson & Watson in the first place loaned the money to Galbraith to pay Yoe, the vendor, and Pullen loaned Galbraith the money to repay Hudson & Watson. The money loaned by Pullen represented the debt which Beatty owed for the lots, and Pullen was entitled to the benefit of the lien which his administrator sought in this suit to enforce. The terms of a written agreement dissolving the partnership between Beatty and Galbraith, made subsequently to the transaction between the parties to these, could not affect the liability of Beatty to Pullen or the note sued on.

Affirmed.


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    E. P. Anderson v. J. D. Shaw.
    (No. 4089.)

    Parties.—Suit ou note by payee for use of assignees who were legal owners, not maintainable.
    Same.— Suit by party having legal title for use of equitable owners maintainable.
    Appeal from Ellis county.
    Statement.— On April 18, 1879, this suit was brought by J. D. Shaw, for the use and benefit of 0. D„ Picket, L. and H. Blum, Julia A. Kerr, M. A. Turner, B. F. Hawkins, J. F. Mulkey, and B. F„, as executor of E. Rogers, deceased, against appellant. The case made is, that appellant purchased from Shaw a block of land and executed his several promissory notes therefor in different amounts, which were transferred to the respective parties for whose use this suit is brought; that these notes constituted liens upon the land, are due and unpaid; prayer for judgment and foreclosure of lien. Appellant filed a general demurrer, general denial, and what appellee’s counsel is pleased to term “ a promiscuous answer,” which in effect asserts a partial failure of consideration. A portion of the claims sued on were withdrawn, and judgment was rendered in favor of Shaw for the use of the respective parties, for the amount of their respective claims, and general foreclosure of the lien.
   Opinion.— Upon examination of this case we believe that the court erred in overruling appellant’s demurrer to the petition, and also in rendering judgment for appellee, as this suit was brought by J. D. Shaw, on certain notes in which he was the payee, for the use of the assignees and real owners of the notes. It is alleged in the petition that the parties for whose use Shaw brought the suit are respectively the legal owners and holders of the notes, thus showing beyond question that Shaw had no interest whatever in, or title to, these notes. If it could have been shown by the petition that Shaw held the legal title to the instruments sued on, but that the parties for whose use the . suit was brought were equitable owners of the same, then this suit could have been maintained in the name of Shaw for the use of the equitable owners. But it appears, both from the allegations of the petition and the evidence, that Shaw had no interest in the matter, and therefore the suit as brought cannot be maintained.

Reversed and remanded.


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    Heirs of B. F. Logan v. N. K. Pierce et al.
    (No. 5305.)
    Evidence — Boundary.— Parol evidence admissible to establish a line left uncertain in a deed, as between individuals.
    Same.—Sheriffs’ and collectors’ deeds void when extrinsic evidence is required to identify the land.
    Appeal from Lamar county. Opinion by Walker, P. J.
    Statement.— This was a suit brought by the appellees against the heirs of B. F. Logan to reform and correct a deed to five hundred acres of land which plaintiffs claim, and whose chain of title is derived through said deed. The deed was a sheriff’s deed to the land, made in the year 1845, under an execution sale to satisfy a judgment against the original owner, B. T. Logan, deceased. John T. Craddock and W. T. Coles were the purchasers at the sale. The tract of land thus purchased was partitioned between Craddock and Weeks, who had become invested with Cole’s interest, in a partition made by commissioners for partition, completely identified, and are made parts of the petition as exhibits. In 1863 Wells conveyed his two hundred and eighteen acres to the plaintiff, Nannie K. Pierce; and Mary E. Brooks, joined by her husband, also plaintiffs, sue and claim, the two hundred and eighty-two acres in right of her heir-ship to her deceased father, the said Craddock. It appears from the exhibits that in making the partition the five hundred acres was described by the surveyor who assisted in' making the partition as beginning one mile north of the southeast corner of Bennett T. Logan’s head-right survey, at a stake which called for certain designated bearing trees, running north with the east line of said survey three hundred and twenty-nine and six-tenths poles, thence west two hundred and forty-two and seven-tenths poles to the west line of the survey; thence south three hundred and twenty-nine and six-tenths poles; and thence east two hundred and forty-two and seven-tenths poles to the beginning, the form of the survey being an oblong parallelogram, about one-fourth longer one way than the other. The description contained in the sheriff’s deed is as follows; “ A part of the B. T. Logan survey, situated on Red River, in Lamar county, containing one-third of a league; beginning at a point on the east boundary line of the same, one mile north of the southeast corner of said survey, running north and west for said complement of five hundred acres.”
    Cause submitted to the court. The judge filed his conclusions of fact and law, on which judgment was rendered for the plaintiff in accordance with the prayer of the petition.
   Opinion.—The learned judge proceeds to refer to the case of Kingston v. Pickins, 6 Tex., 99; but this case is distinctly distinguished from that, as the call for the one hundred acre tract, which is similar in this case, was presumably and reasonably intended to be rectangular in shape, which could not be the case from the field-notes made by surveyor in partition. And there is no evidence to identify the form and shape intended to be given this tract by ex. tvinsic facts, and we are of opinion that the judgment is not warranted by the evidence.

Facts existing at the time of the conveyance, and prior thereto, may be proved by parol evidence with a view of establishing a particular line as being the one contemplated by the parties, when by the terms of the deed such line is left uncertain. 3 Wash, on Beal Prop. (4th' ed.), p. 401, and authorities there cited. But such indulgence is not given to sales by sheriffs (execution sales) when the authority of the officer is limited by the law from which it is derived (Wooters v. Arledge, 51 Tex., 397), nor to tax sales (Wofford v. McKinna, 23 Tex., 44). But in a contract between individuals, if a latent ambiguity exists in the description of the land, parol evidence may be resorted to, to explain it and give effect to the intention of the parties. Wofford v. McKinna, supra. If, however, in the tax collector’s deed the description of the land be so uncertain and incomplete as to require the aid of extrinsic evidence, it is void (Wofford v. McKinna, supra), and it would seem that the rule applies alike to sheriffs’ deeds.

Beversed and remanded.


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    James D. McKinion v. W. C. McGowan et al.
    (No. 5312.)
    Statement of facts, errors considered in absence of.
    Intervention, four years after institution of suit, should not be allowed when intervenor is fully informed and gives no valid reason for the delay.

      Opinion by Watts, J.
    Statement.— A full history of the origin of this case can be found in case of Byrnes et al. v. W. A. Morris ct al., 53 Tex., 213. After the case was reversed and remanded for new trial and the mandate tiled in the district court, W. 0. McGowan appeared in the case for the first time, and by his petition in intervention he claimed the land in suit, alleging that before the sheriff’s sale, under which plaintiff claimed title, he purchased the land in controversy from. S. S. Munger, and exhibits his deed of purchase, bearing date August 1, 187-1, filed for record August 4, 1874. The intervenor further, in substance, averred “ that the original plaintiff, Driscoll, fraudulently procured the land in controversy to be sold on the first Tuesday of March, 1875, it being a legal holiday, as the property of Munger, and had his agent, W. A. Morris, to buy it in for him at much less than its real value; that he afterwards abandoned said sale, and that Morris, taking advantage of the same, and in violation of his instructions, procured the sheriff to make him a deed to this land under his bid made for plaintiff, but that Driscoll procured another execution and had the land again sold by the sheriff of Montague county, on the first Tuesday in July, 1875, at which sale he became purchaser and had the sheriff’s deed under such purchase. Intervenor also avers that the purchaser’s price was grossly inadequate to the real value of the land, and that the judgment debtor had other property subject to sale, and that the judgment was dormant.
    There was a verdict and judgment in favor of appellee. Motion for new trial overruled and case appealed.
    As the original defendants in the courts below have no complaint against the judgment appealed from, and have taken no exceptions thereto, the issues to be determined in this court are only those between the appellant (who is the representative of the original plaintiff to the extent of one undivided half interest in the land in controversy) and the intervener, McGowan. There is no such statement of facts in the record as can be considered; the purported statement is neither agreed to by counsel nor certified to by the court.
    The original petition was filed August 11, 1877, and McGowan intervened June 6, 1881.
   Opinion.— In the absence of a statement of facts, only such errors as are shown by the record, which go to the foundation of the action or merits of the cause, can be considered. Morris v. Files, 40 Tex., 374. Appellee- by his intervention sought to have the sheriff’s sales made in 1875 vacated and set aside upon the ground of gross inadequacy of price, irregularities and fraud in the sale. Hi's first appearance in the case was June 6,1881, some six years after the sales were made.

There is no reason or excuse given for this great delay in asserting whatever rights he may have had in the .matter. He purchased- the land from Hunger after Driscoll’s judgment had been recorded in Montague county, and hence took land subject to lien. It is an appeal to the court to vacate the sales upon equitable considerations, and the rule is that the party seeking the remedy must act promptly, for otherwise he will be held to have acquiesced in and waived the irregularities. Hancock v. Metz, 15 Tex., 205; Vandergue v. Vandergue, 16 N. Y. Eq., 93; Crawford v. Genen, 35 Iowa, 543. This long acquiescence and delay place it beyond the power of the court to restore the parties to their original rights.

EEVtiftSBD AND REMANDED.-


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    E. J. Moses v. John McFarlin.
    (No. 5547.)
    Evidence — Tax deed, — Insufficient description of land in tax-rolls renders them inadmissible to support tax deed.
    Appeal from Burnet count}7. Opinion by Watts, I»
    Statement.— On October 12, 1883, appellee sued appellant in trespass to try title for the land in suit. Appellant pleaded not guilty. It was agreed that appellee owned the land in fee-simple on January 1, 1880. Appellant claimed title by and through a tax sale and deed, the latter being dated November 12, 1884.
   Opinion.— Appellant claimed the land by virtue of a tax sale and deed, and in support of that claim offered as evidence the tax-rolls of the county for the year 1879, reciting that five hundred acres of the survey had been listed by the assessor as unrendered land and assessed to unknown owner. This was excluded by the court. The statute then in force required the assessor to list and assess all unrendered land in his county, specially directing how he should list and assess the same. In listing and assessing the property the law required him to describe it. Gen. Laws of 1876, p. 269, § 14.

If the tax-roll was inadmissible as evidence of a valid listing and assessment, that offered in this case contained no such description as would lead to the identification of the land.

Five hundred acres of land out of a six hundred and forty acre survey were attempted to be listed and assessed. From that description, how could the five hundred acres be found? What corner or point in any of the lines would be taken as a beginning to determine anything with reference to it? There is no question but that, in addition to the description given in listing and assessing land, other matters of description may be given in the tax deed; but where there is no description given in listing and assessing, it would seem clear that such omission could not be cured by a description of land given in the deed. People v. Flint, 39 Cal., 670; People v. Pico, 20 Cal., 595; Desty on Taxation, p. 567. On this ground we are of the opinion that. both the tax-roll and deed were properly excluded by the court below.

Affirmed.


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    T. L. Marsalis et al. v. Texas Cactus Hedge Co.
    (No. 5311.)
    .Evidence —Depositions.—No error for officer to indorse on envelope the names of parties to the suit and names of witnesses; this matter is within the discretion of the court,
    Practice — Incorporation.— “Was duly incorporated,” and date and manner of, a sufficient allegation.
    Appeal from Johnson county. Opinion by Watts, J.
    Statement. — Suit by appellee against appellants for damages for an alleged wrongful seizure and sale of a portion of a stock of groceries, claimed to have been purchased by appellee from W. Price, Appellants claimed that Price was in failing circumstances and largely indebted, and that the sale was made to appellee for the purpose and with the intent to hinder, delay and defraud his creditors, and this intent was known to appellee, or ought to have been so known by the use of ordinanr diligence, at the time of the sale; that the sale was not in good faith and for a valuable consideration, because the only consideration paid was a void patent right; the answer asserting facts which, it is claimed, showed its invalidity. Judgment for appellee for $699.10.
   Opinion.— There was no error in permitting the officer who took the depositions to indorse upon the envelope the names of the parties to the suit and also the name of the witness whose deposition it contained. This was a matter addressed, to the discretion of the court, and no abuse of its exercise is disclosed by the record. Chapman v. Allen, 15 Tex., 282; Conger v. Cotton, 37 Ark., 293.

It is claimed that the court erred in overruling appellant’s exceptions to appellee’s repleader. These exceptions were that it was not shown by the allegations where or in what manner or for what purpose appellee was incorporated, and that it was not alleged that the charter authorized appellee to buy, own and hold merchandise.

Where plaintiff alleges its own incorporation the statute . requires that the allegation shall be that it “was duly incorporated ” and “ the date and manner of incorporation shall be stated.” B. S., art. 1190. It was alleged “that plaintiff, Texas Cactus Hedge Company, is now, and was on September, 1882, a corporation duly incorporated under the general laws of the state of Texas, having its principal office in the city of Cleburne, Texas, by filing its charter in the secretary of state’s office, at Austin, Texas, on the 4th day of September, 1882.” These allegations show a substantial compliance with the statute.

It ivas not necessary for appellee to allege that the charter authorized it to buy, own, hold and sell merchandise. If appellee had exceeded its powers in this respect, then appellants should have averred and shown it. The statute expressly authorizes private corporations to buy, own and sell property for certain purposes. B. S., art. 575.

Appellant’s exceptions to appellee’s repleader were properly overruled.

Beversed and remanded,


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    W. A. Lockhart et al. v. M. Gibbs.
    (No. 5486.)
    Surety.— Failure of to present issue in main suit does not con= elude him from afterwards alleging and showing his suretyship.
    Appeal from Bexar county. Opinion by Watts, J„
   Our statutes authorized a surety on note to present the Issue of suretyship and have it tried and determined on the main cause, and by that means rendered the judgment tk)rein available to him against the principal in the event he pays it. But a failure of a surety to avail himself of that privilege in the main suit would not conclude him from alleging and showing that he was, in fact, but a surety in a suit brought by him against the principal for reimbursement for any sum paid upon the judgment in the main* cause. R. S., art. 3662; Burk v. Conger, 8 Tex., 66; Wiley v. Pierson, 23 Tex., 488; Freeman on Judgments, sec. 226; Wells’ Res Ad judicata, sec. 111. But the liability of the principal was determined in the main suit, and until that judgment is vacated or set aside his liability is conclusive. There is no reasonable error so far as W. A. Lock-hart is concerned. A married woman’s liability for debts contracted by her is limited to such debts as are contracted for necessaries furnished herself and children, and for expenses incurred by her for the benefit of her separate property. R. S., art. 2854; Magee v. White, 23 Tex., 181.

It was therefore error to render any judgment whatever against Mrs. Lockhart. The judgment is affirmed as to W. A. Lockhart and reversed and rendered in favor of Mrs. Lockhart.


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    N. A. Johnson v. G. B. Hollamon.
    (No. 5500.)
    Evidence, parol.— Affidavit as basis for parol in discretion of the court.
    Appeal from Guadalupe county. Opinion by Watts, J.
   The sufficiency of an affidavit sought, to be made the basis for the admission of parol evidence of the execution and contents of a lost instrument is principally addressed to the discretion of the trial court. A party ordinarily has the right to require his antagonist to produce the primary evidence of such facts as he may propose to establish in the cause; but where, by reason of the loss or destruction of the primary evidence, it cannot be had, then by an appropriate affidavit showing suqh loss or destruction, and a reasonable and proper search and failure to find the same, the court may admit parol or secondary evidence of the execution and contents of the instrument. In passing upon the sufficiency of the affidavit all the attending circumstances should be considered, such as the character and importance óf the instrument, the time when executed, whether recently or otherwise, the usual place of deposit of such instrument, as well as the time, place and character of the search. When that is insisted upon by the opposite part)'' the affidavit of the supposed custodian is usually required. Where the respective owners have .agreed to and fixed a common boundary line between their respective lands, and in which they both have acquiesced for a number of years, a subsequent purchaser from one of the parties to the original agreement will not be heard to complain that the line as agreed upon ivas not in strict accordance with the line as run in making the original survey.

Affirmed.


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    Julia C. Leigh v. H. Wagenbuhr and wife.
    (No. 5463.)
    Plea in abatement.—To be verified by affidavit.
    Appeal from Bexar county. Opinion by Watts, J.
    Statement.— Suit by appellees against appellant to recover $400 and interest from July 10, 1816, collected by appellant’s husband and appropriated to his own use, alleging that appellant was the principal legatee and devisee, and had received more than $5,000 worth of property from her husband’s estate. Judgment for $513.94. Remittitur of $19.50 entered.
   Opinion.— Held, the plea in abatement setting up that there was another suit between the parties, involving the same cause of action, then pending in the probate court, was not verified by affidavit, and was, therefore, subject to general demurrer, as such plea was a nullity. E. S., art. 1265. L. collected the money January 25, 1879, and died soon thereafter. His partner testified that L. recognized, the claims of appellees as just and valid. This, together with the evidence showing that the relation of attorney and client had long existed between L. and appellees, was sufficient to authorize the judgment rendered.

Judgment reformed as per remittitur filed at appellees’ cost.

Affirmed.


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    Houston & Texas Central R’y Co. v. G. B. Hester et al.
    (No. 5331.)
    Damages.— Notice, verbal, written.
    Appeal from Grayson county. Opinion by Delaney, J.
    Statement.— This was a suit brought by appellees to recover damages on a shipment of cattle from Bryan to Sherman, Texas, the negligence imputed to appellant being improper delay in furnishing cars as agreed and delay in the course of shipment; that an insufficient number of cars was furnished, and the cattle were improperly crowded in them; and that appellant had no stock pen or inclosure to hold said cattle in Sherman, by reason of which the cattle were injured, some killed and others lost. Appellant pleaded general denial, and specially that one of appellees, representing them all in the shipment of the cattle, entered into a written agreement with defendant, whereby he undertook to superintend the loading of the cattle, and, among other things, as a condition precedent to his right to recover anything for said cattle, to give notice in writing of his claim therefor to some agent or officer of the defendant before the stock should be removed from the place of destination, which was not done.

      The written notice required was not given for several days after the arrival of the train at Sherman. The cattle were put off in the night. It was dark and raining. There were no pens to put them in, and they could not be kept together in the darkness. They scattered abroad into the country, and it was several days before they could be collected, and many of them were entirely lost.
   Opinion.— The court holds that under the above circumstances the appellant could not insist upon a literal compliance with the condition. It was sufficient that verbal notice of the claim was given to the agent on the night of the arrival at Sherman, and written notice as soon as it could be reasonably given after collecting the cattle.

Reversed and remanded.


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    In re Estate of T. S. Horn, Deceased.
    (No. 5532.)
    Homestead.— Family tabes as deceased left it.
    Appeal from Taylor county. Opinion by Delaney, J.
    Statement.—-T. S. Horn died intestate in Taylor county in February, 1883, leaving a wife and six minor children. He had at the time of his death a homestead in the town of Abilene, and a small amount of personal property, which was not as much as would be exempt by law. His debts amounted to about $800. Besides the property mentioned, he owned a house and lot in Abilene, known as the “ Concho House,” which had been rented as a boarding-house, and was never used as a part of the homestead or as a place of business by the head of a family. At the fall terra of the county court appellant, W. H. Johnson, was appointed administrator and also guardian of the minor children, and qualified in both capacities. January 5, 1884, the administrator filed his application to sell the “Concho House ” and lot for the purpose of paying the debts of the estate, and for the additional reason that the building was frame, surrounded by wooden "buildings, and the danger of fire was so great that no insurance could be had, and it was for the interest of the estate that it be sold.
    At the February term, Í8S4, the application, accompanied by an exhibit of the condition of the estate, was heard and the order of sale granted. At the same term the homestead was set aside to the family.
    On July 19, 1881, a succeeding county judge, after citing the administrator to appear, made an order revoking the order of sale made at the February term, and setting aside the “Concho House” and lot as a part of the homestead, upon the ground that the homestead previously set apart for the family was not of the value of $500. On appeal to the district court, the judgment of the county court was affirmed. _
   Opinion.— Held, the question as to how far a county judge majq of his own motion, alter or set aside the orders and decrees of his predecessor, made upon the application of an administrator, is not decided.

The county judge, however, erred in making the order complained of.

As a general rule, the family takes the homestead as the deceased left it, and as the record indicates nothing peculiar in this estate, that rule should apply here.

Beversed and remanded.


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    W. D. Haynes v. Samuel Satterfield et al.
    (No. 5374.)
    Roads.— Powers of commissioners’ court must be exhausted before he can go to district court.
    Appeal from Ellis county. Opinion by Watts, J„
    Statement.— This suit was brought by appellant to enjoin the commissioners’ court of Ellis county and the road overseer from opening a second-class public road through his inclosed lands as ordered by the commissioners’ court, because the order was void in that it was made without the written consent of himself, agent or attorney, and no receivers had been appointed to assess the damages, and because the petition upon which the court acted in making the order was asked for only on condition that another road running over his land be reduced from second to third class road. It was shown that appellant appeared before the county commissioners’ court by his attorney, and there is evidence to the effect that said attorney assented to the order as made, but upon this point there is some conflict in the evidence. The attorney claimed that he consented, thereto only on condition that the other road would be reduced to a third, class road, and this is the extent of the attorney’s authority as claimed by appellant.
   Opinion.— The petition on which the court acted did not make the reducing of the other road a condition precedent to consent, but asked that the road be opened and then prayed that the other be reduced. As the commissioners’ court has full power over the subject of opening, closing and reducing roads, parties are required ordinarily to apply to that court for relief with respect to those matters. Until the party has exhausted his remedies in that court he is not entitled to invoke the equitable powers of the district court. Burgeois v. Mills, 3 Texas Law Review, 142.

The record not showing that the appellant has exhausted his legal remedies in the commissioners’ court, he is not entitled to the writ of injunction.

Affirmed.


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    J. M. Fly v. N. W. Guinn et al.
    (No. 5392.)
    Deed — Condition in.— Forfeit land if condition violated.
    Appeal from Gonzales county. Opinion by Delaney, J.
    Statement.-— Appellants in this cause hold part of a lot which appellees formerly conveyed to W. B. Fry. The clause in that deed under which the forfeiture is now claimed is expressed in these words: “With the reserva-
    tion or exception that the said W. B. Fry shall not himself, or permit the same to be done by any one holding title by, through or under him, keep for sale upon the premises herein conveyed any spirituous or intoxicating liquors, under a forfeiture of the title to the premises herein described.”
   Opinion.-—-In the case of Jeffery«. Graham, 61 Tex., 481, a judgment like this was sustained. The case of Plumb v. Tubbs, 4 N. Y., 442, resembles this in many respects. The court says: “ Wherever the condition in a deed is unlawful, impossible or repugnant to the nature of the estate granted, it cannot be enforced.” 2 Bl. Com., 1567; Coke Lit., 206a, 206b.

This condition is evidently neither unlawful nor impossible.

The cases in the books are numerous and uniform in holding that the use of the property in some directions may be restricted. A condition that a school-house, a distillery, a blast furnace, a livery stable, machine shop or iron furnace, powder magazine, a hospital, or a cemetery have been held valid conditions.

But defendant pleaded he was a druggist; that he was compelled, in the course of his business as such, to sell spirituous liquors, hence the condition was in violation of a legitimate trade, and therefore void. Held, the prohibition was not intended to restrain the sale of spirits as a medicine but as a beverage, and the court did not err in striking out the plea.

He also pleaded as an estoppel that he had sold liquors for a number of years while occupying another lot in the same village, and held, under the same conditions, that plaintiffs had full knowledge of the -facts and made no objections; that they thereby waived the forfeiture and could no longer insist upon it. Held, plaintiffs might waive the forfeiture, and if with full knowledge of the facts they had acquiesced in the condition, it would be treated as a waiver. But the plea does not state that the liquor was sold.as a beverage; the clear inference from the language is that such was not the case, but that it was sold as a medicine.

Affirmed.


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    C., T. & N. W. Railroad v. W. L. Hancock.
    (Galveston Term, 1885.)
    Evidence — Depositions. — Indorsement of “ P. M.” sufficient when initials only are used.
    Practice,"-Address of counsel; latitude allowed; jury prejudiced by,
    Appeal from Ellis county. Opinion by Delaney, J.
    Statement.— Suit for damages for personal injuries. Judgment for $10 actual, and $5,000 exemplary, damages. The exemplary damages were afterward remitted.
    The indorsement on the deposition was: “Received this package from the hands of W. W. Gray, clerk, the .officer before whom the deposition was taken. G. S. Smith, P. M.” The postmark on the envelope was: “Woodbury, Tenn., July 21.” From the certificate of the officer who took the deposition it appears he was “clerk of Cameron "county, Tennessee.” The objections to the deposition were: 1. That the signature did not show that the person signing ivas a postmaster. 2. If the initials were sufficient for that purpose, then it does not appear at what point he was postmaster.
   Opinion.— Held, the certificate was sufficient. The fifth assignment of error complains of certain remarks of plaintiff’s counsel in the course of trial. Held: “In our opinion the largest liberty of discussion should be allowed in trials before juries, so long as the legitimate objects of discussion are kept in view. ' In the trial of causes involving, as they generally do, the most important interests, the duties of jurors require moderation, calmness, and a high sense of rectitude. In such trials everything which appeals to prejudice or kindles animosity between different classes of men must be regarded as inimical to the due administration of justice. Our courts of last resort are accustomed to pay great deference to verdicts when there is reason to believe that they are the result of calm and deliberate conviction on the part of juries. And this is so even -when the coiirt may think the verdict larger or smaller than it ought to be. But when the verdict is abnormal, and circumstances have occurred at the trial which may have suddenly influenced the action of the jury, the court will not hesitate to set it aside,” Because the large verdict in this case may have been brought about by the improper remarks of counsel before the jury, the judgment is reversed and the cause remanded.

¡Reversed and remanded.


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    Leon & H. Blum v. Younger Bros.
    (No. 5029.)
    Vende.— Suit may be brought in either county when defendant’s residence is uncertain. '
    Appeal from Wise county. Opinion by Delaney, J.
    Statement.-— This was á suit on open account, brought by appellants against appellees in Wise county. The petition alleged that ¡N. Younger and C. Younger composed the firm; the former resided in Wise and the latter in Montague county. Appellees pleaded to the jurisdiction of the court because of the residence of both defendants in Montague county. The evidence showed that the defendant had two mercantile Establishments, one at Denver, in Montague county, and the other at Sunset, in Wise county, some seven miles south of Denver. Ceph Younger was a married man and lived near the store at Denver; Nat. Younger was unmar- . ried and divided his time between the two stores, the witnesses varying as to the proportion of time by him spent at the respective stores. While at Denver he slept in the store and took his meals at Ceph Younger’s. While at Sunset he took his meals at a restaurant and slept in the store, his acquaintances varying in their respective opinions as to his residence at Denver, many of them stating that he spent as much time at Sunset as at Denver. He ordered goods for both establishments from Sunset. The goods were shipped to and received by the house at Sunset, and such as were needed at Denver were taken from the Sunset house and sent to Denver.
    The two brothers first owned a store at Denver, in Montague county. They then established a branch house at . Sunset, which was on the railroad and supposed to be in Wise county, and placed another brother (Pierce) in charge of it.
    The two stores were seven miles apart, and N. Younger was there very often, frequently spending several days at a time.
   Opinion.— But he appears to have voted in Montague county and to have claimed Denver as his home. The only question in this case is one of jurisdiction, and that depends upon the place of residence of N. Younger. If his residence was in Wise county, the court had jurisdiction of the case, otherwise it did not. Bev. Stat., art. 1198, sec. 4.

In Brown v. Bouldin, 18 Tex., 434, it is said that if a defendant’s affairs are in such a state “that it cannot be certainly known in which county his residence in fact is, we think it can be held, consistently with the legislative intention, that suit may be brought in either county.”

The reasoning of the court in that case would probably not apply with its full force to a case like this. Here there were two partners. There was no doubt about the residence of one of them; hence there was no doubt that the suit might be maintained in Montague county. The appellants, therefore, need not have been misled by the seemingly doubtful residence of the other partner.

And as the preponderance of evidence. seems to be in favor of the finding of the court, the judgment is affirmed.

Affirmed.