text:
    J. W. D. Chalk et al. v. Foster & Blessing.
    (No. 858.)
    Lost instruments.— Evidence admissible to substitute lost transfer that was an ancient instrument.
    Evidence.—A witness who, in company with a clerk in land office, hunted for lost papers, permitted to testify.
    Charge of court.—Where the court fails to .charge all the law of the case, but the same is correct as far as it goes, and no charge is asked to supply the deficiency, judgment will not be reversed on that ground.
    Error from. Harris county. Opinion by Watts, J.
    Statement.—■ Appellees instituted this suit against appellants as the heirs of Ferdinand Bell, deceased, October 5, 1872, to substitute a transfer of a land certificate claimed to have been exercised by said Ferdinand Bell to Isaac W. Burton in 1838, and claimed to have been lost or mislaid. The case made was that Bell, in 1838, transferred his head-right certificate Ho. 495 for a third of a league to Burton; that Burton, the same year, had transferred the same to Dr. Ashbel Smith, and that he had the same located upon the'land in controversy, the field-notes returned to the land office, and that in 1845 patent was issued in the name of Bell and delivered to Dr. Smith; that appellees were the owners of the land by mesne conveyances from Dr. Smith; that the transfer from Bell to Burton had been lost or mislaid and could not be found; that Bell had died, and appellants, taking advantage of the loss of said transfer, were asserting a claim to the land as heirs of Bell. Prays that the transfer be substituted, and for judgment quieting their title and possession as against defendants.
    Appellants answered by general denial, and claiming the land as heirs, etc., of Bell, and limitation of ten years and stale demand. The trial which was had April 6, 1874, resulted in a verdict and judgment for appellees substituting the transfer and quieting their title to the land. That judgment is before the court by writ of error. The errors relied on are sufficiently noticed in the opinion..
   Opinion.— That the court erred in admitting as evidence the power of attorney from Holbrook to Gould & Street, on the ground that there was no sufficient description of land given, is assigned as error.

David Ayers, as trustee for the “Life. Insurance and Trust Company of Florida,” conveyed the lands in controversy, with other lands, to Holbrook, by deed dated January 4, 1861. The power of attorney from Holbrook to Gould & Street bears date March 8, 1871, and authorizes and empowers them as his agents to sell and convey the lands situated in Harris county, lately conveyed to him by David Ayers, trustee. The deed from Ayers as trustee to Holbrook, by reference and otherwise, gives a sufficient description of the land in controversy.

The general rule is, that if the description of the premises given in the deed affords sufficient means for ascertaining and identifying the premises intended to be conveyed, this will sustain the conveyance. And if the description is doubtful, the true location of the land may be rendered certain by reference to other conveyances mentioned in the deed. Berry v. Wright, 14 Tex., 270; Martindale on the Law of Conveyancing, 76.

The power of attorney was admissible in evidence unless it was void for want of description. Ferris v. Gilbert, 50 Tex., 356. As the land mentioned in the power of attorney could be located and identified by reference to the deed therein named, the instrument must be considered as valid and admissible as evidence.

J. H. Bowers, in answer to interrogatories, testified that he lived with Dr. Ashbel Smith at and before 1845; had charge of his papers, and attended to his business; that he was not acquainted with Bell, but he knows there was a transfer from Bell to Burton; that he got the patent out of the office for Smith in 1845; that when he called for it the commissioner told him that it had been issued, and that if witness had been there the day before the patent would have issued to Dr. Smith, as assignee; “ consequently the transfer must have been in my hands at the time, and it is likely I left it inadvertently with the certificate at the office in Austin.”

This evidence was objected to by appellants because it tended to prove contents of lost instruments without proper predicate being laid, and did not tend to prove the execution of the instrument by Bell, and also impertinent and calculated to mislead the jury.

There were two affidavits on file of the loss of the transfer, and some evidence of the loss was introduced by appellee, which appears to be a sufficient answer to the first objection. The evidence shows that if the transfer had been executed by Bell to Burton, as claimed, that it was done in 1838, and if produced upon the trial would, as an ancient instrument, have been admissible without proof of its execution; and it would seem that in an action to substitute such a transfer, that any evidence tending to show that, in fact, the same once existed and was then lost or mislaid, would be admissible. Notwithstanding the witness did not see the transfer executed, still he had seen it in Dr. Smith’s possession, and says that he knows there was such an instrument in existence.

It does not appear that this evidence was misleading, or likely to be misunderstood by the jury; it seems that he did not remember whether he had the transfer or not at the time he received the patent for Dr. Smith, but he refers to what occurred between the commissioner and himself as a circumstance tending to show that he did have it.

The objection to the evidence of the witness, Foster, as to a search in the land office for the missing transfer, is not well taken. It appears that the witness went there to have the search made, and that he and the clerk, designated by the commissioner, made the search; that the clerk would take down the packages to be examined and that the witness would examine the same, and that they failed to find it. Now while it might have been more satisfactory to have produced also the evidence of the clerk as to the search m addition to that of the witness, still that would not render the evidence objected to inadmissible. It does not appear that the commissioner ever made any examination for the instrument; therefore that ground of objection would be unavailing, as he does not appear to have known anything of the fact then to be proved. Foster was present and aided in the search, and we know of no principle of law that would preclude him from testifying as to the result of-that search; true he was not the custodian of the records, but h© was permitted -by the commissioner to make the search with one whom it is supposed was well acquainted •with the routine of the office and familiar with the records.

It is objected to the evidence of Dr. Ashbel Smith, which 1 relates to the existence of the alleged transfer from Bell to Burton0 that it was not admissible, as it is claimed that the loss of the instrument had not been satisfactorily shown. An examination of the evidence fails to support this objection. There was evidence in the record sufficient to sustain a verdict affirming the loss of the instrument, and this being true, that objected to was properly admitted.

The particular objection to the third paragraph of the ' charge is nob pointed out by the assignment. An examination of the same does not disclose any error of law. Clearly the suit was not for specific performance, but was a proceeding to substitute a lost instrument, and it is not perceived that limitation had any application, to it. As far as it went the law was properly applied to the case made by the evidence. It may have been defective in not going further and submitting other matters, but there was no charge asked supplying the deficiency, if any. And it is well settled that where the court fails to charge all the law of the case, but that the same is correct as far as it goes, and no charge is asked supplying the deficiency, the judgment will not be reversed on that account.

The charges asked and refused had no application to the ease made by the pleadings and evidence; the questions involved therein have been discussed and disposed of in passing upon the admission of evidence.

A full examination of the evidence disclosed by the record does not sustain the assignment that the verdict is not supported by the same, for upon a consideration of the evidence it seems to us that the verdict of the jury is right.

There is no such error disclosed by the record as ought to work a reversal of the judgment; on the contrary, it appears that substantial justice was attained by the trial.

We conclude that the judgment ought to be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Dobbin v. City of San Antonio.
    (June 17, 1881.)
    Municipal chabteb, how amended.— The act of the legislature of April 24, 1874, which provides that the board of aldermen of any incorporated town or city may submit amendments to the charter to the qualified electors thereof, and in the event a majority of the votes cast shall be in favor of such amendments-they shall be adopted, etc., is constitutional.
    Judgments of eecobdebs’ courts. The recorder’s court of a city is recognized by the general statutes appertaining to both civil and criminal jurisdiction, and its judgments are no more the subjects of collateral attack than are the judgments of the inferior state courts,
    Appeal from Bexar county. Opinion by Watts, J. '
    Statement.— On September 5, 1877, John Dobbin, the city marshal of the city of San Antonio, filed his petition in the district court of Bexar county, claiming of the city fees and commissions on fines to the amount of $6,181.12, alleged to have accrued to him in some three thousand two hundred and forty-seven cases tried in the city recorder’s court from January 18, 1875, up to and including February 28, 1877. Interest to the amount of $530 is also claimed. He had been re-elected to the office, etc. The fees claimed had all accrued in cases arising under the ordinances of the city of San Antonio.
    He bases his right to fees on article 131 of the city charter (Special Laws of Twelfth Legislature, called session, p. 263), and complains that ever since January 18,1875, the recorder, on the plea that the city council had prohibited it, refused to enter up judgment against parties convicted for the marshal’s fees and commissions on fines; that said officer, however, not being sure that he was right in his refusal, whenever fining parties, increased .the fines by just so much as the marshal’s fees and commissions, had they been taxed, wo'uld have amounted to; that all those fines, so including and em- ' bracing the marshal’s fees and commissions, were paid into the city treasury; that he twice petitioned the city council to pay him his fees, etc., and that they refused his petition.
    In his amended petition the marshal also refers to section 230 of the charter (pp. 281, 282 of the Special Laws of Twelfth Legislature, called session), and, without naming them, to certain unrepealed city ordinances guarantying to him and promising to pay to him the fees and commissions claimed; charges that the recorder based his refusal to allow the fees on the so-called amendment to the charter set up in defendant’s amended answer; that the city had used that fund for its own benefit, and delayed action on his petitions so long that the plea of limitation ought to be inapplicable. Finally, he again asserts that there is no legal amendment to the charter, and that all efforts in that direction were unconstitutional.
    The city demurred and excepted generally and specially to both the original and amended petition, and answered that by an amendment to the charter of the city, adopted in accordance with the act of April 24, 1874, that the appellant was not entitled to any fees claimed by him, setting up the amendment. On December 18, 1877, the cause came on for trial and the court sustained ¿appellee’s exceptions to appellant’s original and amended petition, and appellant refusing to amend judgment was rendered against him for costs, etc., and that appellee go hence; appellant brings the case before the court by appeal and assigned errors.
   Opinion.— The first proposition urged by counsel for appellant directly involves the constitutionality of ^ An act to provide for the amendment of town and city charters,” approved April 24, 1874, which provides that the board of aldermen of any incorporated town or city may submit amendments to the charter to the qualified electors thereof, and in the event a majority of the votes east shall be in favor of such amendment, then they shall be considered ratified and adopted, and taken and held to be a part of the organic law of such town or city. Appellant claims that this act is in violation of the provisions of the constitution of 1869, providing the mode and manner of enacting and amending laws.

The city of San Antonio was incorporated by special or local act of the legislature, approved August 13, 1870, and it is therein declared that it shall be deemed a public act, and may be read in evidence without proof, and that judicial notice be taken thereof in all courts and places. The argument proceeds upon the idea that this being a public act, it could only be amended by the legislature re-enacting , the section or sections to be amended. And that this attempt to confer the power upon a town or city so chartered, to amend its organic law, by vote of the people, was in contravention of the constitution and therefore void.

Taking into consideration, alone, the sections of the constitution cited by appellant in support of the proposition, and we are not prepared to say but that the objection would be well taken and the act of 1874 declared to have no warrant in the constitution. The question, however, should not be considered as confined to the limits suggested. Constitutions, like statutes, must be considered and construed with reference to being an entire instrument, so as to give effect to every section and clause and to the same as a whole, and in. doing so the plain import of the words in which it is written should be considered as expressing the true meaning. Cooley’s Constitutional Limitations, 57 and 58.

An amendment to section 40 of the general provisions of the constitution of 1869 took effect January 26, 1874. The amended section provides that the legislature shall not pass local or special laws incorporating cities and towns, or changing and amending their charters, but requiring the legislature to pass general laws providing for such cases.

After the adoption of that amendment it was beyond the power of the legislature to pass any act directly amending the charter of San Antonio, which was a local and special and not a general law. And this is true notwithstanding it is declared public for certain purposes. The question then arises, did the amended section of the constitution authorize the passage of the act of 1874?

The legislature could not re-enact so as to amend any part of the act constituting the charter of the city of San Antonio. No local or special law could be passed incorporating towns and cities or changing or amending their charters, but the legislature is required to provide for Such cases by general law, not that the general law shall, of itself, constitute the amendment, but that a means to change or amend such charters shall be provided applicable alike to all the towns and cities of the state.

Pursuant to that requirement the legislature passed the act of 1874, leaving it to the people directly interested in the matter to vote upon and adopt or reject proposed amendments to their municipal charters. And whether, in selecting this mode, the legislature adopted the wisest and most practical way of meeting the requirements, is not for us to consider; that was a matter pertaining to legislative and not judicial discretion.

The only question with which we have to do is one of powers Bid the legislature have the constitutional power to accomplish the object in that way ? The impracticability of enacting a general law that would, of itself, constitute an amendment to the different and diverse charters of the various towns and cities in the state forbids the idea, that such was intended by the constitution. In the very nature of things it must have been intended to confer upon the legislature the power to provide some means by which such amendments and changes could be made, by some authority pertaining to the particular municipal corporation familiar with its wants and necessities.

The generally accepted doctrine is that the adoption or rejection of a general law cannot be. submitted to and made dependent upon the vote of the people of the state. Cooley on Const. Lim., 120. But on the other hand the general rule is, that any legislation pertaining to municipal corporations may be submitted to and made dependent upon the vote of the people to be affected thereby. Cooley on Const. Lim., 118, and note 2.

The constitution requires the legislature to provide the means by general law by which these charters may be changed or amended, and it is not perceived how this could have been accomplished in a manner more consistent with our idea of government than to submit such amendments to the vote of the people directly interested. It is our conclusion that the act of April 21, 1S71, is constitutional, and that any amendment to the charter of San Antonio adopted. in accordance therewith is legal and binding.

Appellant claims that after the adoption of the amendment to the charter of the city of San Antonio, the recorder refused to tax the marshal’s fees as such, in cases tried before him for violations of the ordinances of the city. But that in view of the fact that appellant might thereafter establish his right to such fees, under the guise of imposing tines, the recorder would increase the same so as to include also the amount claimed by appellant as fees, and have these amounts collected and paid into the city treasury. And that all he claims as fees in this suit were, in fact, collected and in this way paid into the treasury of the city.

The recorder’s court is recognized by the act of incorporation and also by the general statutes appertaining to both civil and criminal jurisprudence. That court is fully authorized to hear, adjudicate upon and determine all matters committed to it, either by the charter and ordinances or the general laws of the state.

The adjudications of recorders’ courts, upon matters within their jurisdictions, are final and conclusive, until vacated or sett aside in some of the modes prescribed by law. Such judgments are no more the subjects of collateral attack than are the judgments of the inferior state courts.

So collateral examination could be had into the reasons or motives that actuated the recorder in the discharge of his duty as a judicial officer, so long as he does not exceed the discretionary limits given him by law. But suppose it could be done, and it should be determined that this judicial officer, ever cautious in the discharge of his duties, should increase the fines fixed by him so as to cover some remote contingency, still this would not give appellant a right of action against the city. The marshal has no interest in the money arising from fines; that is disposed of by law. If he is entitled to fees they must- be collected as such from the parties convicted. And if the recorder should refuse to include such fees in the taxation of costs, then a motion to retax and appeal or certiorari furnishes him a remedy. And if it should' be shown that the recorder, with respect to this matter of fees, has acted corruptly or with the intent to injure appellant, it might be that he would have cause of action against the recorder individually. But a trust against the city and in behalf of the appellant could not arise out of the wrongful or irregular adjudications of the judicial officers of the corporation. There being no error, judgment affirmed.


text:
    Thomas Bowles v. W. W. Glasgow.
    (No. 331.)
    Substituting lost papers.— Order must be granted upon competent evidence, and no other issue can be litigated in such proceedings, not even of fraud in procuring the evidence.
    Charge of the court.— Judge must not charge upon the weight of evidence.
    Error to Hill county. Opinion by Watts, J.
    Statement.— At the fall term, 1861, of the district court of Hill county, Thomas Bowles recovered a judgment against defendant in error, Glasgow, for §1,214.94. The record of the same was destroyed, and at the August term, 1868, substituted upon the motion of Bowles; defendant in error resisted the motion on the ground that it had been off and discharged June 20,1863. The court substituted the judgment notwithstanding the plea. The appellant caused an execution to be issued on the substituted judgment August 27, 1870. The defendant in error, Glasgow, then instituted this suit and procured a temporary injunction. In his petition he alleged that he had paid off and discharged the said judgment June 20, 1863, and that he held the receipt of J. T. Ratcliff, the attorney of Thomas Bowles, showing that fact; that the sheriff was proceeding to levy upon his property, and unless restrained would sell the same, to his great injury, etc.
    This petition was filed September 3, 1870. Thomas Bowles ansivered February 25, 1871, that the matter of payment had been adjudicated in the proceedings to substitute the judgment, and was therefore res adjudicada. And further, that Glasgow had, by fraud and false representations, induced Ratcliff to receive Confederate money and give the receipt mentioned in the petition; that is, that Glasgow represented to him, Ratcliff, that Bowles had agreed to receive Confederate money in payment of said judgment, and requested him to pay it to Ratcliff, which was averred to be untrue.

      The cause was finally tried October 24, 1873, and resulted in a verdict and judgment for defendant in error. The cause is now before the court on an assignment of errors that will be noticed in the opinion.
   Opinion.— The proceeding to substitute the judgment was by motion, in accordance with articles 4969 and 4970, PaschaPs Digest. The real and only issues that were or could have been tried under the motion were, did such judgment once exist? and is the same lost or destroyed? and is that presented by the applicant a copy, in substance, of the original judgment? Whenever the court is satisfied of these facts, from competent- evidence, an order granting the substitution must necessarily follow. Eb issue of payment or even of fraud in procuring the original judgment, or any other extraneous matter, can or ought to be litigated in such proceeding. - It was not a suit, but a motion, triable by the court -without the interposition of a jury. Its object, purpose and effect were simply to substitute the record as it once existed; and this the party was entitled to, regardless of any invalidity in or defenses to such judgment. The law furnishes other and ample means of having such questions adjudicated.

If the plaintiff in error had followed up the plea of res adjudicata by introducing, upon the trial of this cause, as evidence, the record in the proceeding to substitute the judgment, which does not appear from the statement of facts, and it had shown such plea by defendant in error, it could not then be held to constitute such an adjudication upon the issue or fact of payment as would conclude him upon that issue.

It is objected that the court charged upon the weight of the evidence, wherein it gave them the rules of law to be applied in weighing the testimony of the witness Batcliff. It appears from the record that the testimony of the witnesses Batcliff and Glasgow was in direct conflict, and it may be implied that it had been insisted in argument that, from the facts and circumstances in the case, it was shown that the witness, Batcliff, had sworn falsely as to the material issue in the case. After charging the jury with respect to the rules of law to be applied in weighing the testimony of the witness, Booth, he further said in effect: That a witness might be discredited if it be shown that he had sworn falsely in the case, or made contradictory statements, under oath, upon material points, as well-as by introducing witnesses who swear that his reputation for truth and veracity is bad. And if it appeared to them from all the circumstances proven that the witness, Batcliff, had sworn falsely upon one or more material points, or that he had contradicted himself, that they should consider the same in determining the weight to be given to his evidence; that the legal effect of such false swearing would be to impair the credibility of the witness, but that they must determine the weight to be given to his evidence.

The statute is imperative; the judge must not charge upon the weight of the evidence; he is required to separate questions of law from questions of fact, and give alone to the jury the principles of law by which they are to be governed in the investigation of the matters of fact submitted to them.

In the case of Jones v. The State, 13 Tex., 168, it is héld that, “in charging the jury, the judge may call their attention to the evidence of a particular fact or facts, if they be controverted, for the purpose of directing them to the rules of law that must govern them in arriving at the truth; and if they be uncontroverted, for the purpose of the application of law to them. All that is required of the judge is that he should neither decide on the facts, nor attempt to influence the jury in their decision on the facts.”

In the case of Howard v. Colquhoun, 28 Tex., 134, the court below had charged the jury to “look to all the testimony and to the fact that some of the witnesses had been impeached, in order to decide whether or not they should believe those .witnesses as to any facts that the defendants are required to establish, and, if they believe them, how far.” Smith, J., delivering the opinion of the court, said: “ The language of the charge might have been couched in more appropriate terms, perhaps, but we are of opinion that the scope and meaning of the charge were, that their character had been attacked, and it was for the jury to judge of the weight their testimony was entitled to, and the jury must have so understood it.”

In the case before us the judge does not tell the jury the witness, Ratcliff, had been impeached, nor does he therein assume any fact as proven. The effect of the charge was, that if the jury believed, from the evidence, that the witness had s'worn falsely as to one or more material facts in the case, then the legal effect of such false swearing would be to impair the credibility of the witness. But they are also told that they must determine the weight to be given to his evidence. While the court might have couched the charge in this case in more appropriate language, still we are of the opinion that the jury fully comprehended and understood the charge as. submitted to them as a question of fact, to be determined from the evidence, whether or not the witness had sworn falsely as to material facts, and if they so found that it would impair his credibility, but that, they must determine the weight to be given to his evidence notwithstanding that they had found that he had sworn falsely. We are unable to see wherein this charge encroaches upon the province of the jury, or wherein it is obnoxious to the statute prohibiting the judge from charging upon the weight of the evidence. While we doubt the propriety of the judge’s calling the attention of the jury to the testimony of any particular witness who may have testified in the case, still it does not follow that in doing so he has determined for them any fact, or even intimated what his conclusions are upon the facts. , In the charge given the judge does not assume or intimate that the witness, Ratcliff, had sworn falsely, but leaves them free and untrammeled .to determine that question for themselves. Hor does he charge them that in the event they find that he had sworn falsely, that then he was unworthy of belief, but they are required for themselves to determine what weight his testimony was entitled to. The court tells the jury that the legal effect of false swearing is to impair the credibility of the witness; this is true; else if such was not the effect, testimony would not be admissible to establish the false swearing. The court does not tell them to what extent it impairs the credibility of the witness; here again they are required to determine for themselves what weight is to be given to his testimony. This objection, in our opinion, is not well taken.

Upon the trial the witness Booth, over the objection of plaintiff in error, testified that he beard Thomas Bowles, during his life, tell defendant in error that be would accept Confederate money in payment of the judgment, and to bring the money to town on a certain day and meet him at Ratcliff’s office, and if he (Bowles) was not there to pay the inoney to Ratcliff; that he was authorized to. receive it. Upon what ground the objection is based we are not informed by the record. This evidence was material, and directed to the vital issue in the case, and we fail to conceive any view of the case in which this evidence would not be admissible.

It is claimed that the court erred in' overruling the motion for a new trial because of the newly-discovered evidence shown therein. The evidence set forth and shown by the motion was but cumulative, and not a sufficient ground to warrant a new trial. Madden v. Shephard, 8 Tex., 49; Kilgore v. Jordan, 17 Tex., 346; Hilliard on New Trials, 380.

The motion fails to disclose facts sufficient to show that the party had used due diligence to ascertain and avail himself of this testimony on the trial of the case below. The nature of the evidence, and the position and evidence of the witnesses by whom it was proposed to be made, rather contradicted the idea that diligence had been used to discover the same and make it available on the trial.

The witness Booth was introduced and examined as such by the defendant in error, as appears from the statement of facts in rebuttal. The plaintiff in error introduced five witnesses, who being examined testified that they knew the witness Booth’s general reputation for truth and veracity in the neighborhood in which he lived, and that it was bad.

The defendant then introduced nine witnesses who that Booth’s reputation for truth and veracity was good. The plaintiff in error proposed to call other witnesses on that question, and defendant in error replied that he had other witnesses to sustain Booth’s testimony that he would also introduce, whereupon the court refused to allow any other witnesses to be examined upon that question. This refusal of the court to permit a protracted investigation of this collateral issue is claimed to be erroneous.

It is an elementary principle that the court has a discretionary power to limit the examination and cross-examination of witnesses as to material issues, as well as to shape the order in which the evidence is to be produced. Wharton’s Law of Evidence, vol. 1, sec. 505. It was held in Bunnell v. Butler, 23 Conn., 65, that the court might exercise its discretion in limiting the number of impeaching witnesses, and likewise the supporting witnesses, and that a proper exercise of such discretion is not good ground for reversal. Johnson v. Brown, 51 Tex., 76. In this case both parties introduced witnesses upon this issue, and then each proposed to protract the examination by introducing other witnesses upon the same issue. Necessarily the judge must have the right to exercise his discretion in such cases, or otherwise the investigation would be interminable.

The record does not disclose such an abuse of discretion in this respect as would authorize or require a reversal of the judgmentS

AFFIRMED.


text:
    E. G. French et al. v. Octavia C. Pyron et al.
    Deed or trust — Foreclosure.-— May be enforced against property, notwithstanding the discharge of the debtor in bankruptcy, and the debt had not been proven up.
    Bankruptcy.— A discharge in bankruptcy does not release property subject to a mortgage, although debt was not proved up.
   Opinion by Walker, J.

The first, second and third assignments of error question the correctness of the ruling of the court below denying the prayer for foreclosure of the trust deed, the oldest lien upon the land. The other assignments (there are twenty - one in all) relate to matters of practice and evidence not material to ascertain the rights of the parties. At the time of the trial below the supreme court of this state had held that liens against a bankrupt could only be enforced in the bankrupt court. It was in accordance with the authoritative rulings of the supreme court that the court below disregarded' the efforts by the defendants to assert the right of foreclosure against the land after Pyron’s discharge in bankruptcy. See Taylor v. Bennett, 38 Tex., 521, and Johnson v. Poag, 39 Tex., 95. These cases were expressly overruled in Elliott v. Booth, 44 Tex., 189, and later decisions. “ A creditor whose claim is secured bj^ lien on real estate may enforce his lien, notwithstanding the discharge in bankruptcy of his debtor, and although his claim was not proven up against the bankrupt’s estate.” Boone v. Reiss, 44 Tex., 385. Also, Truitt v. Truitt, 38 Ind., 16; Pierce v. Wilcox, 40 Ind., 70; Spring v. Eisenach, 51 Tex., 432; Bump (7th ed.), pp. 146, 536, 540.

The holder of the lien, liargaretta Boberts, was not, therefore, required to enforce the note and trust deed in the bankrupt proceedings. The right to foreclose would not be concluded by proceedings to which she was not made a party. So far as we are advised by the record special exceptions were urged to this deficit. De Cordova, the assignee, did not bring into court, by any notice or citation, French or his assignee holding the note; nor didjie take any proceedings to sell the land free from incumbrances. From all in the record, Be Cordova only sold the equity of redemption. There was then pleaded by the de- . fendant, Hargaretta Boberts, a valid debt owned by her, not barred by limitations, secured by a deed of trust, having the effect of a mortgage after Byron’s death and prayer for foreclosure. All the parties interested were before the • court. She was in no way interested in the question of ownership of the equity of redemption. Whether Sam G. French or the plaintiffs owned it she was equally entitled to have her debt satisfied out of these lands, or that they be sold for that purpose.' This right was denied; this was error. If Byron’s homestead was upon the land at the date of the trust deed his widow and children comprising his family . are entitled to the homestead exemption, free from incumbrance. It does not appear when the homestead right first attached to the land. For the error in the action in the court below in deciding from the pleadings that defendants had not the right to foreclose under their plea in reconvention, cause reversed and remanded.


text:
    Murphey & Brockelman v. Sampson Heidenheimer.
    (No. 822.)
    Mechanic’s lien, how acquired.— To fix and secure lien, party asserting it must show a substantial compliance' with the statutes in every essential particular.
    Appeal from Galveston county. Opinion by Watts, J.
    Statement.— On May 28,1875, appellants brought this suit against appellee to recover the sum of $432.12 on account, and to foreclose a mechanic’s lien upon the house and lot described in the petition. The substance of the case as made by appellants is this: That appellee, during the latter part of the year 1374 and January; 1875, was having a large hotel erected on the lot described in the petition; that he purchased the material charged in the account sued on from appellants, and had the same used in erecting and completing the building; and also, at his request they did the work specified in the account upon said building; that they filed with the clerk a sworn copy of the bill of particulars and caused the same to be recorded, and served a copy thereof upon appellee, and thereby fixed and secured their mechanic’s lien upon the house and lot. By amendment it is alleged that the material was furnished and the work was done by the authority of appellee and for his use and benefit.
    June 11, 1875, appellee answered by general and special demurrer, arid also general denial, and specially denied that the material was furnished and the labor done at his request, and," specially answering, says that he is not indebted to appellants in any sum whatever, and that if they furnished the material and performed the labor on the building charged for in the account sued on, that it was done without his authority or consent; that at some time appellants did furnish material and do labor upon the hotel prior to January, 1875, for him, and that, to wit, January, 16, 1875, he paid them therefor and held their receipt; a,nd denies that there is any lien upon the building by reason of appellants’ pretended claim.
    October 20, 1876, the cause was tried and resulted in a verdict and judgment for appellee, from which this appeal was taken.
    The errors relied on are:
    1. The court erred in refusing charges asked. 2. The court erred in a portion of the charge, in this, that the jury are, in effect, told that if the evidence showed that appellee and Shisa & Qrfiia were partners in the hotel building, then that appellee would not be individually liable for the debt. 3. The' court erred in the entire charge. 4. The court erred in overruling the motion for new trial.
    The evidence did not show that'a partnership existed between appellee and Shisa & Orfila.
    The motion for new trial was mainly based upon the ground of newly discovered evidence, to wit, a written contract between appellee and Shisa & Orfila to the effect that appellee agreed and bound himself to pay all debts against the building, claiming that they had discovered this testimony for the first time upon the trial from one of their own witnesses.
   Opinion.— To fix and secure a mechanic’s lien it is incumbent upon the party asserting the lien to show a substantial compliance with the statute in every essential particular. Ferguson v. Ashbell, 53 Tex., 245. Not only must the bill of particulars be recorded, but a copy of the same must be served upon the party-owing the debt, and the burden is upon the party asserting the lien to show that this has been done. Lee v. O’Brien, 54 Tex., 367.

By the allegations in the petition the debt sued on is claimed to have been contracted by appellee, and he is sued alone, while the evidence shows that the debt was contracted by Shisa & Orfila, and charged to them on the books of the appellants.

Admitting that a debt contracted by a co-owner of property for improvements upon it. would constitute a lien upon the property, this would not render the co-owners individually liable for the debt in the absence of evidence showing authority to contract the debt. It is manifest from the record that the debt sued on was the individual indebtedness of Shisa & Orfila, and to fix and secure a lien upon the property the statute must be fully complied with, which the record fails to show, in this, that service was had upon appellee but not upon Shisa & Orfila. Under the facts of this case, considered in the most favorable light for appellants, there was no lien fixed and secured upon the property. Considering the evidence disclosed by the record, the conclusion is irresistible that credit was not extended to appellee, but that the claim sued on was the individual indebtedness of Shisa & Orfila. However, had appellants proceeded according to the statute and served Shisa & Orfila with a copy of the bill of particulars, the lien would have been secured and property would have been bound. This, however, would not make appellee liable for the debt. As there was no lien to foreclose, and no individual debt against appellee, this suit as brought could not be maintained against him.

Affirmed.


text:
    J. W. Rutherford v. Dorcas French et al.
    (No. 2899.)
    Pre-emption claim.— Patent is evidence of title.
    Appeal from Denton county. Opinion by Watts, J.
    Statement.—- The appellees as heirs and assignees of B. F. Donaldson, deceased, brought this suit against appellant on the 27th day of December, 1873, for the land described in the petition, alleging that B. F. Donaldson died intestate in 1860; that they were his heirs, except appellee, Serve, who was an assignee of one of the heirs; that in 1864 one J. B. Lafour was a bona fide settler upon the land in controversy, which was then vacant public domain; that he made the affidavit required by law, and afterwards, to wit, March 22, 1854, caused the same to be surveyed and the field-notes recorded and forwarded to the general land office; that he continued to occupy, cultivate and improve the same and pay the taxes thereon until 1858. On the 19th day of May, 1857, Lafour made application for a certificate to the chief justice of Denton county, and made proof of the occupancy, improvement, etc., as required by law by two citizens; the certificate was granted by the chief justice for the same; that the same was forwarded to, and filed in, the general land office. In 1858 Lafour sold and conveyed the land to B. F. Donaldson, who occupied the same for two years and died in 1860; that appellant was claiming the land by virtue of a patent which was issued September 5,1871; that it was procured by the fraud of appellant, asking that the same be canceled, etc.
    Appellant ansxvered by general demurrer and general denial. The case was tried xvithout a jury Hay 6, 1875, and judgment was rendered for appellees and the appellant appealed. Owing to the viexv we take of the case it is not necessary to notice the assignment of errors.
   Opinion.— The appellees introduced evidence in the court below shoxving the facts as alleged in the petition as to the settlement, occupancy and improvement of the land by Lafour and the payment of the taxes by him, and a full compliance xvith the law by him for more than three years; his sale and transfer to Donaldson in 1858, the latter’s occupancy and death in 1860, and the heirship of appellees. No patent had ever issued by virtue of this claim of preemption. The appellant introduced in evidence a patent for the land issued to Patrick O’Leary, dated September 5, 1871, and it xvas admitted that appellant held under a regular chain of transfer from O’Leary. There is no evidence in the record shoxving xvhen or at what time the location was made by O’Leary or xvhen his equities attached to the land.

The patent was evidence of title, and it was incumbent upon appellees to rebut the'same by showing prior equities to those that eventuated in the patent. Washburn on Beal Property, voh 3, p. 175; Todd v. Fisher, 26 Tex., 241; The State v. Galveston City Co., 38 Tex., 31.

. For aught that appears in the record the O’Leary location may have been made long prior to the settlement upon the land by Lafour., And as the burden xvas upon the appellees to avoid the force and effect of the O’Leary patent and the pre-emption or right arising therefrom, we are of the opinion that they must show that their equities, arising from the settlement and occupancy of Lafour, were prior in point of time to the inception of O’Leary’s equities that were perfected in the issuance of the patent.

We are of the opinion that the judgment is not sustained by the evidence and should be reversed and the cause remanded.


text:
    Daniel Dailey v. W. Killebrew et al.
    (No. 329.)
    Pleadings.— Amendments, conflicting. Facts insufficiently stated to authorize a recovery.
    .Appeal from Falls county. Opinion, by Walker, P. J.
    Statement.— This was a suit brought by Daniel Dailey against the executor, of the will of John A. Fortune, deceased, and the dexisees under said will, and those in privity of estate with them, and the administrators, guardians, etc., of the estates of such privies deriving title or interest by descent under the devisees in said will. The action has for its object the. divestiture out of the defendants the title derived by them through the xvill of said John A..Fortune, one-half of certain lands which the plaintiff alleges he had, during the life-time of John A., conveyed to him, and the cancellation of the deed of conveyance Avhich he had thus made as to one-half of said land; also for the partition between plaintiff and the defendants into two equal parts, giving to the plaintiff one-half of the same.
    The petition of the plaintiff prayed that the defendants be required to show what portions of the land had been sold to third persons by Fortune during his life-time, and that if, in making partition, it be found thajt (oxving to such convejrances made by Fortune to other persons) as much as one-half of said land cannot be decreed tp plaintiff, in that case that plaintiff recover from the defendants the sum of §10 per acre, together with eight per cent, interest due thereon from 1808.
    The plaintiff bases his cause of action upon a written contract with John A. Fortune, dated April 11, 1859. The inducements which led to the making it, as alleged in the petition and shown by the contract, were the common interest which plaintiff and Fortune had by combination between themselves, through the united use of their respective muniments of title (though the titles were adverse to each other), against that which was being asserted by one B. G. Shields to the same land, and therefore hostile to both plaintiff’s and Fortune’s title, in order that they might thereby defeat their common adversary.
    B. G. Shields claimed under the Manchaca grant;• Fortune claimed under an adverse title known as the George Morgan league title. The “ Manchaca ” conflicted with and covered the “Morgan.” Dailey claimed under the Manchaca grant, also under a chain of title which, as he claimed, was the superior and better title to that under which Shields claimed. Shields has instituted suit against Fortune in the district court of Falls county for the recovery of the land. Dailey was not a party to that suit, but interested himself in its result by endeavoring to promote the defeat of Shields under a contract with Fortune, as has already been stated, the alleged violation of which furnishes the cause of action in this case, if any exists.
    This contract was, in substance, to the effect as follows, viz.: ■ ■
    That Dailey, “ by way of compromise, and to prevent litigation ” with Fortune, had, at the same date therewith, conveyed to the latter his interest in the Manchaca survey conflicting with the George Morgan league (describing its boundaries); that said Bailey claimed said interest under a purchase from one Cundiff, who had derived his title through Bhoda and John F. Boren, claiming to be the heirs of Bobert Barr, deceased, the reputed owner of the Manchaca title and survey. That whereas. said Shields had sued him for the land, claiming to derive title through the heirs of Manchaca, therefore he (Fortune) bound himself to have a legal adjudication of said title, paying the expenses thereof (except that Dailey should be at the expense of establishing the title in said Barr, as also that said Bhoda and John are his heirs at law); that in the final adjudication of the title, if the land in the Morgan league and conflicting with the Manchaca survey shall be adjudged to belong to him (Fortune), “ by virtue of the title this day” (that made by Dailey to him above referred to) “received from the said Dailey, then, and in that event, he bound and obligated himself to reconvey to the said Dailey, his heirs and assigns, one-half of the quantity of land he might thus receive by virtue of his title aforesaid,” reserving to himself (Fortune) in the following words: “in said division the lands or lots to which I have derived title through the heirs of G-eorge Morgan, deceased; and should the lots to which I have derived title, as aforesaid, be greater in quantity of acres than the portion remaining on the said Morgan survey, then, and in that event, I am to make up the deficit at $10 per acre, but not to exceed four hundred acres.
    [Signed] “ J. A. Fobtuhe.”
    This obligation contained a penal obligation of $20,000 for the performance of the stipulations in the contract. The plaintiff, in his pleadings, waived any claim for damages for neglect by Fortune to bring suit for all the land claimed by Dailey under the title which he conveyed to Fortune, but claims damages for the forfeiture of the condition of the bond requiring Fortune, on the adjudication of the title, to convey to him the one-half of said lands. Plaintiff bases his allegation of forfeiture and consequent liability on the averment that the suit of B. G. Shields against Fortune was determined in 1868, resulting in a recovery by said Fortune of the lands in controversy, which, as he alleges, was a final adjudication quieting and settling the title, and alleging failure to reconvey the one-half of the land, whereby he was liable on the bond to pay 010 per acre for four hundred acres, making $4,000, which he claims as stipulated damages, as fixed in the bond.
   Opinion.— During the progress of the cause the plaintiff filed four amended petitions, resulting in obscuring the grounds, to some extent, of his action, and leaving it rather indistinct to our perception upon what facts precisely he proposed to rely as affording him a cause of action. In the original petition, and in some of his amended petitions, the determination of the Shields litigation is treated as a final adjudication of the controversy between the parties on its merits, and the plaintiff bases his right to recover upon that theory and assumption. In another amendment the plaintiff alleges that the judgment was a mere dismissal of the suit by Shields, induced by a fraudulent and covert intention on the part of Fortune thereby to secure an advantage against the plaintiff by thus procuring himself to be left in possession of the land under his title under the Morgan grant, and thus to evade the obligation in his contract which required him to reconvey the one-half of the land which plaintiff "would have been entitled to demand, provided the merits of the plaintiff’s chain of title under the Man chaca grant had been tested, and an adjudication had been made establishing its superiority over that of Shields. Such conflicting statements of facts, in the connection tkgy occupy to the plaintiff’s action, present directly opposite theories, and require for their adjudication, in respect to the contract sued on, different remedies. The fraudulent device referred to might afford the appropriate basis for a suit for damages on the bond for failing to have the title adjudicated; but one of his amendments distinctly disclaims asking for any such redress, but attempts to lay the basis for the recovery of stipulated damages by reason of there having been such an adjudication of the titles of the parties in the Shields suit, whereby, under the contract here sued on, he claims that he was entitled to recover one-half of the land, or to have in lieu thereof the alternative moneyed consideration provided for in Fortune’s obligation. It will doubtless be most favorable to the interest of the plaintiff, on this appeal, for the court to treat his numerous amendments as not, in effect, varying the allegations of his original petition.

The amended petition referred to, in effect, assailed the integrity of the cause of action declared on in the original petition without superseding it with a different one; for the disclaimer by him of the only remedy appropriate to the facts under the amendments rendered the variation made as to the facts merely irrelevant for any of the purposes of this suit, and can have no other tendency, if construed as. supplanting the allegations on the same subject contained in plaintiff’s previous pleadings, than to neutralize the original allegations and thereby to leave the plaintiff with an insufficient petition under a cause of'action based upon either of the supposed theories of plaintiff’s right to recover.

The defendants tiled a general and a special demurrer to the original and amended petitions; the grounds of special exception were: 1. That plaintiff does not allege that he ever complied with his undertakings and obligations in the bond. 2. That he does not allege that the Barr title, mentioned in said bond, was a good or superior title to said land.

The court'sustained the demurrer and rendered judgment ' for the defendants. The appeal by the plaintiff presents the action of the court in thus ruling as the only ground of error.

A synoptical statement of the contents of the plaintiff’s amended petitions is pretermitted because of their length; they could not be properly abbreviated to any considerable extent for the due consideration of the demurrer, and it is thought best to refer the court to the record itself.

Considering the plaintiff’s suit as being, in effect, an action to enforce the specific performance of the obligation given by Fortune to him, or, in default thereof, to enforce the alternative remedy of a judgment for $4,000, the sufficiency of the cause of action must rest upon the proposition that the petition shows that the state of facts exists contemplated by the contract, from which the duty was imposed upon Fortune to convey to the plaintiff one-half the tract of land involved in the Shields law suit.

Fortune, by the bond which he executed, stipulated not to recon vey to the plaintiff one-half of the land which he might be able, in any event, to maintain his right to, but to reconvey one-half thereof, in case his (Fortune’s) right thereto should be adjudged to him by virtue of the Barr, Oundiff and Dailey chain of title under the iVlanchaca survey.

The converse of this proposition or construction is, that if Fortune’s right to the land under the adjudication which was contemplated turned out to depend upon his own propér title, derived from the Morgan heirs, and not upon Dailey’s title, that Dailey would not be entitled to share the benefit of such a result, and Fortune would not be obligated to reconvey. It was, therefore, the initial point of Dailey’s cause of action to allege that first, the adjudication had been in fact made, whereby Fortune had recovered the land; second, that the recovery thus had was due to, and by virtue of, not the Morgan title, but the title with which Dailey had invested Fortune.

The plaintiff’s petition, as has been seen, was so amended as to deny the truth of the first, and to ignore the second of these propositions; but if it had not been thus amended the plaintiff -does not allege in any of his pleadings that the defendant Fortune, in the Shields litigation, prevailed, or recovered therein, by virtue of the Dailey deed, and the title which' it conveyed. Fortune, indistinct terms, expressly provided that those portions or lots of land on the .Morgan survey, the title to which he had derived from the heirs of George Morgan, should continue, in every contin, gency, to remain his property, even though they, with other parts of the Morgan league, should be recovered in the Shields suit, under and by virtue of Dailey’s chain of title and deed to Fortune.

Thus the contract, in plain, unmistakable language, forbids any attempt to engraft upon it the idea, for a single moment, that Dailey’s right to any portion of this land, under the contract or bond sued on, could be acquired by demanding Fortune’s reconvejmnce, unless the obligation to make it was derived through the efficiency of the Dailey title, and its availability to sustain Fortune’s right to recovery of the land.

The plaintiff’s petition and amended petitions wholly failed to allege facts which, under the view we take of the contract between the parties, entitled him to recover either land or damages in the manner and form plaintiff has seen proper to sue.

Judgment affibmed.


text:
    W. E. Kendall and J. T. Harcourt v. S. A. Calder.
    Tbust funds in hands of executors.
    Appeal from Fort Bend county. Opinion by Walkeb, P. J.
   Opinion.— The overruling of the general demurrer to the plaintiff’s petition and amended petition is assigned as error. We think the allegations of the plaintiff’s supplemental petition, or, as it may be more properly termed, amended petition, sufficient to constitute a good cause of action.

It is alleged that the plaintiff, Calder, was selected when this suit was brought by the ladies, -who were virtually the depositors of the money claimed, with E. H. Kendall, deceased, as their selected depositary, and were' entitled to demand and receive the funds sued for, and was directed so to do by them as their representative and agent. The original petition alleged also that said Kendall, in bis lifetime, held said fund in trust and subject only to the call or order of the treasurer of said church. These facts seem to establish a sufficient privity of contract in the creation of said trust to entitle the plaintiff to maintain this action against the defendants in their capacity of executors.

It devolved upon the plaintiff to establish, by evidence, these allegations; they are the prime and essential facts, upon which depend the plaintiff’s right to enforce a trust. In this connection it will be proper to consider the tenth, eleventh and twelfth assignments of error, which are as follows: “The judgment was against the law, as there was no plaintiff authorized to sue.” e< The judgment is unsupported by any legal evidence.” “ The court erred in overruling the motion for a new trial.”

The only evidence tending to show the facts alleged in regard to said trust are thus recited in the statement of facts: “ The plaintiff proved that $221, gold, of the claim sued on was money raised by a committee of ladies, citizens of the town of Richmond, Texas, for the purpose of building an Episcopal church at said town of Richmond.” “ That, at the special direction and request of the said ladies, the said sum of money was placed in the hands of C. H, Kendall for safe-keeping on ■ or about the —— day of -, 1872.” 66 That the books of the said 0. H. Kendall, deceased, show that said snm of §221, gold, was in his hands at the time of his death to the credit of said church, and that said executors were fully aware of the same.” This evidence certainly tended to establish the plaintiff’s allegations, and it cannot be said that the judgment in this respect is unsupported by evidence or is contrary thereto.

The fifth and sixth assignments of error present the question as to the validity of the personal judgment rendered against the appellants, and as to rendering judgment against them in their representative capacity upon a claim that had not been authenticated g,nd presented for allowance and approval. It appeared, without controversy, from the statement of facts, that the defendants did not receive into their hands the specific trust money sued for, and that there was no money belonging to the estate in their hands, or, so far as appears, none known to them in the hands of others subject to their possession or control. The evidence shows that the estate owned assets from which the defendants realized and collected money wherewith to pay the debts of the estate. There was no evidence that would charge either of the defendants with knowledge of the trust and conversion of the money committed by themselves, or of any default or fraud whereby they might be rendered personally liable.

Under the facts proved, the claim set up by the plaintiffs amounted to no more than an alleged debt against the estate, to be enforced against its property subject to process of law.

The administration being one in which the jurisdiction of the probate court was alleged to have been dispensed with, and the estate being administered through the defendants as executors of the will, which relation was not denied by the defendants, the authentication of the plaintiffs’ demand in the mode ordinarily required for claims and demands against estates of deceased persons was not necessary.

_ The judgment, therefore, ought to be reversed so far as it relates to the defendants as a judgment against them personally, and in all other respects to be affirmed; the supreme court proceeding now to render such judgment as ought to have been rendered by the district court.

Beveesbd and rendered.


text:
    J. C. Degress v. R. B. Hubbard et al.
    (No. 2673.)
    Misjoinder or parties and multiplicity or actions.
    Appeal from Travis county. Opinion by "Watts, J.
    Statement.—This suit was instituted b.y appellant against the appellees May 4, 1874. The petition and amended petitions show that on the 3d of May, 1871, plaintiff was appointed superintendent of public instruction by the governor of the state and confirmed by the senate May 5, 1871, and that his was the first appointment made and confirmed under the constitution of 1869; that he was duly qualified according to law, and was the legal incumbent of said office and entitled to said office on the 16th of February, 1874; was in peaceable possession of the same and rightfully entitled to perform the duties thereof, hold possession of said office, books, records, papers, as well as the rooms thereto belonging, and receive the salary allowed by law to said office; that on that day the defendants wrongfully and with force ejected him from said office, and took possession of the same, at which time the defendants assaulted petitioner with force and arms, and ejected him from said office; that for the purpose of dispossessing him of said office they unlawfully and wrongfully, with force and arms, assaulted, beat and struck him and deprived him of his liberty, and they compelled him to let them take possession of said office with all the books, records, papers, etc., belonging thereto, to plaintiff’s damage in the sum of $20,000; that the defendant, 0. 5". Hollingsworth, has possession of said office, books, etc., and had in violation of plaintiff’s rights received $816.47 of the salary belonging to the same; that Hollingsw’orth combined and confederated with the other defendants and did with them commit all the wrongs, etc., complained of. In the original petition S. H. Darden, the comptroller, was made a party for the purpose of restraining him from issuing warrants for Hollingsworth for any more of the salary of superintendent of public instruction, The case was afterwards dismissed as to Darden. By amended petition it was shown that Hollingsworth had continued to receive the salary of said office of superintendent of public instruction to the further sum of $3,000.
    In the original petition plaintiff had prayed for damages for a judgment for possession of said office. By amended petition he abandoned his prayer for judgment for possession of the office, and made his suit one for damages against Hollingsworth for the amount of salary drawn by him, amounting to $3,000. The defendants demurred to the petition, and the court below sustained the demurrer, dismissed the case and rendered judgment against plaintiff for costs. Plaintiff moved for a new trial, which was refused, and he appeals.
    The only point in the case is raised by the error first assigned : “ That the court erred in its ruling sustaining the demurrer of defendants to plaintiff’s petition.”
   Opinion.— The demurrers to appellant’s petition sustained by the court presented several objections to the same as amended, the principal ground being that of misjoinder of defendants and causes of action, or, as it is termed in equity pleading, multifariousness.

The appellant joined in his petition a claim for damages against five defendants, growing out of an alleged assault and battery and false, imprisonment, and a claim against one of the five alone for mon'éy had and received. In the case of Clegg v. Varnell, 18 Tex., 304, it was said, “ the rule against multiplicity of suits has peculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to the joinder of parties and causes of action.”

Defendants, however, should not be put to inconvenience, expense and delay in litigating matters in which they have no interest. See Frost v. Frost, 45 Tex., 341; Story on Equity Pleading, sec. 539. The court, in the case of Clegg v. Varnell, treating of this question, said: 55The substance of the rules on this subject appears to be that each case must be governed by its „own circumstances, and whether it be multifarious or not must be left in a great measure to the sound discretion of the court.” In a case like the one before us it can. be perceived how and in what way inconvenience, injustice and delay might be caused to a portion of the defendants to the suit, as there is no relevancy or connection between an action for damages for tort and an action for money had and received. The court below, in the exercise of a discretion, sustained the demurrer to the petition and dismissed the suit, and in this respect we find no such palpable abuse of that discretion as would authorize a reversal of the judgment.

Aeeirmed.


text:
    F. Eberling v. Joseph Schneider.
    (No. 3577.)
    Trespass to try title.
    Evidence, conducting.
    Judgment op court below entitled to same consideration as the verdict of a jury.
    Appeal from Guadalupe county. Opinion by Watts, J.
    Statement.— F. Eberling, the appellant and defendant in the court below, in February, 1860, purchased of Joseph Dwyer the northeastern portion of survey 91, in the name of Josefa Leal, his northwestern boundary line of said Josefa Leal, Ho. 91. He took possession of his land and put a portion of it, close to the northwestern boundary line, in field.
    The plaintiff below, Joseph Schneider, purchased about June, 1869, the Santos Goy survey, Ho. 93, having the Josefa Leal survey bounding it on the southeastward, so that the Santos Coy and Josefa Leal have one line in eommon. Schneider also took possession of his land, building his house close to the northwestern boundary of his land. The patent in describing the Santos Coy survey begins on the northeast corner of survey 92, the southeast corner of the Santos Coy, thence south sixty degrees, west one thousand three hundred' and fifteen varas, to the northeast corner of survey 91, three thousand, and forty-nine varas to a branch, three thousand six hundred and six varas to the southwest corner of this survey (Santos Coy), a stake set on the northwest boundary line of survey Eb.,91 (Josefa Leal).
    Schneider claimed the boundary line between them to run where it would give him one hundred and forty-five' acres of land now in Eberling’s possession. As Eberling would not yield, Schneider filed his suit against Eberling, an action of trespass to try title, and died during its pend-ency. Caroline Schneider suggested his death and as administratrix of his estate prosecuted the suit. The petition contained the usual allegations of trespass to try title and prayed for an order of survey. The court appointed A. M. Erskine to survey the land and he did so. Defendant, Eberling, pleaded a demurrer and special exceptions as to plaintiff’s vague description of the land, pleaded not guilty, and denied all allegations of plaintiff; then described the land owned by himself, defendant, claiming as his northwestern boundary the line run by Chas. P. Smith, surveyor, etc.; pleaded three years’ limitation under title and color of title, the statute of five years’ limitation, and that plaintiff paid no tax. Eberling then suggested improvements in good faith to the value of $500. Objections to the surveyor’s report were also filed charging, among other things, that Erskine’s survey places the line between Schneider and Eberling by about four hundred varas too far southward. Plaintiff amended her petition several times as to the description of the land sued for, describing it at last in Exhibit A. as containing one hundred and fifty-two and one-tenth acres.

      The cause was tried before the court and. resulted in a judgment for plaintiff substantially as follows, to wit: That plaintiff recover of defendant the land described in plaintiff’s petition, vesting title in plaintiff; that defendant recover of plaintiff $460, value of improvements on land adjudged to plaintiff; that plaintiff recover all costs. Defendant excepted and gave notice of appeal and assigned as errors: 1st. The court erred in rendering the judgment that was rendered in this cause. 2d. The proof exhibits but one natural or fixed object from which could be ascertained, etc. 3d. The proof on the whole case shows that the judgment should have been for the defendant.
   Opinion.— This suit is with respect to the true boundary or division line between the Santos Coy survey, Ho. 93, patented August 12, 1844, and the Josefa Leal survey, Ho. 91, patented May 20, 1846.

The evidence adduced on the trial was conflicting. In this conflict of evidence the court below, sitting as a jury, determined the credibility of the witnesses against the appellant, and this determination is entitled to the same consideration and weight as would the finding of a, jury upon the same question. A thorough examination of the record fails to disclose anything that would authorize us to disregard the finding of the court as to the credibility of the witnesses or in holding that the judgment was not fully sustained by the evidence.

Affirmed.


text:
    Wadley v. Johnson.
    (No. 3957.)
    Citation.— Citation directed to one county, no authority to an. officer of another county to serve same.
    Appeal from Hood county. Opinion by Watts, J=
   Suit brought against Wadley as maker, and McOamant as indorser, on a note in Hood county. Citation issued to “the sheriff or any constable of Hood county,” and was .served by the sheriff of Hill county. McCamant accepted service. Judgment was rendered by default against Wadley-only, and did not dispose of the defendant McCamant. Held9 this court has no jurisdiction, there being no final judgment. A judgment must dispose of the whole subject-matter in controversy as to all the parties, otherwise it is not fatal. Linn v. Arambould, 55 Tex., 616. A citation directed to one county is no authority to an officer of another county to serve same, and is no service in contemplation of law, and the court has no jurisdiction of defendant’s person. Witt v. Kaufman, 25 Tex. Sup., 386. A citation not stating the names of all the defendants to the suit will not support a judgment by default when tested on appeal or writ of error. Norvell v. Garthwaite, 25 Tex., 584,

Writ of error dismissed.


text:
    Hurlock v. McLain.
    (No. 1135.)
    Assignments of error, when vague, will not be considered.
    Appeal from Navarro county. Opinion by Walker, P. J.
   Suit brought to rescind a contract of sale of land, and for damages, alleging that the vendors had fraudulently represented that they had a valid title to the land, on which he relied. Judgment in favor of plaintiffs rescinding the contract and for damages; they afterward, remitted the damages. The assignments of error are general, not otherwise indicating the imputed errors than to refer in general to the court’s entire charge and to the several instructions refused. Held, these assignments are entirely too general for consideration. 54 Tex., 641; id., 285; 16 Tex., 233; 15 Tex., 435. The patent, for whose admission in evidence a reversal is sought, was properly admitted, having conneetion with the land certificate, survey and other incidenis of the alleged ownership. Whether a sufficient basis was laid or not to establish the loss of an instrument or of its.destruction is a question addressed to the discretion of the court, which the supreme court will not revise unless manifestly wrong. 12 Tex., 85.

Affirmed.


text:
    James v. Watson.
    (No. 1376.)
    Judgment by default.— Citation sent to another county not good unless accompanied by copy of petition.
    Appeal from Jefferson county. Opinion by Walker, P„ J.
   Suit by appellee against appellant in Jefferson county. Appellee lived in Grayson county. Citation issued to that county, and was returned indorsed: “ Came to hand - and executed-by delivering to the within named defendant, -, a true copy of the citation.” Judgment by default taken, and defendant brings it up by writ of error. Held:

1. The delivery to defendant of a copy of the plaintiff’s petition is rendered by law as indispensable to valid service as the delivery to defendant of a copy of the citation; neither the copy of one nor the other can be omitted. 11 Tex., 256; 19 Tex., 56; 4 Tex., 309.

2. Where the service of the citation appears from the record to be defective, it is not incumbent on the defendant to appear and make the objection in the court below; he may take advantage of it by writ of error. 4 Tex., 49.

3. The citation and sheriff’s return are before this court as a part of the record, and a fortiori, the mere construction in law as to validity of the service as contained in the judgment cannot be regarded. 45 Tex., 466; 17 Tex., 649.

Reversed and remanded.


text:
    Pointer and wife v. Flash, Lewis & Co.
    (No. —.)
    Continuance,—Application must comply with statute.
    Appeal from Dallas county. Opinion, by Watts, J".
   The application for a continuance did not comply with the statute, appellants not having availed themselves of the remedies provided by law to secure the desired evidence. The facts stated in the application as an excuse for failing to resort to their legal remedies to secure the evidence were addressed to the discretion of the court, and no abuse appears. Besides, all the material issuable facts were admitted. Appellants being charged by the petition with the possession of the original deed, and also notified to produce the same, the affidavits to the effect that appellees could not procure the same were wholly unnecessary. 15 Tex., 385. The objection to the certified copy of the deed, that the certificate of acknowledgment upon which the original deed was admitted to record was not authenticated by the official seal of the commissioner who took the same, is not sustained. The officer states in the certificate that it was given under his hand and seal, and the presumption is that the seal was impressed upon the original, unless the contrary is shown. The fact that Mrs. Pointer was a married woman did not, either at law or equity, give her the right to retain the land and refuse to pay.the purchase money therefor. The deed she accepted fully sets forth the terms upon which the land was conveyed to her, and it is therein stipulated that the deferred payment of purchase money was to bear ten per cent, interest. The court did render personal judgment against Mrs. Pointer, but determined the amount of the unpaid purchase money, and decreed a foreclosure of lien, and ordered the land sold to pay the same, which was correct. 21 Tex., 230.

Affirmed.


text:
    Gillett v. Lee et al.
    Judgment by competent tribunal is conclusive between the parties on any point until set aside.
    Appeal from Harris county. Opinion by Delaney, J.
   Mrs. Mason was a party to the suit of Lewis v. Gillett et al., was represented by counsel, and she -made no objection to the decree, but took under it a large amount of property, which she still retains. The question here is, Is she ,barred from recovery by that judgment? Appellee does not question the rule that, when a judgment by a competent tribunal is rendered between parties on any point, that judgment, until set aside, is conclusive upon the parties whenever the same point is again brought in question in another suit, but insists that it is not applicable herein because in the former suit she and the other distributees claimed the property under the will of her grandfather, while herein she claims an additional interest as the heir of the grandmother. Meld; This we cannot hold, as the object of the former suit was to distribute among the parties, including appellee, the entire estate belonging both to the grandfather and grandmother—the parties choosing to treat the entire estate as passing by the will of the grandfather. As appellee could have claimed the property in the first suit as the heir of the grandmother, she is precluded by that judgment, whether such failure to so claim was from ignorance, inadvertence or caprice. The situation of appellee is similar to the appellant in 24 Tex., 17. See, also, 41 Eng. Com. Law Rep., 631; Broom’s Legal Max., pp, 387 et seq.

Reversed and remanded.


text:
    Matter of Blauvelt.

      (Surrogate’s Court, Rockland County,

      December, 1890.)
   Note.—The decision in this case, a full report of which appears in 2 Con. 458, and which was affirmed by the General Term, 39 St. Rep. 774, 60 Hun, 394, was reversed by the Court of Appeals, 131 N. Y. 249, 43 St. Rep. 285.


author: Coleman, S.

text:
    In the Matter of the Judicial Settlement of the Estate of James L. Collard, deceased.

      (Surrogate’s Court, Orange County,

      Filed November 2, 1891.)
    Executors and administrators—Property set apart for widow—Laws 1889, chap. 400.
    Where the personal property is not sufficient to make up the amount required so that the widow may receive a full $1,000, the proceeds of real property converted by sale under the will cannot be considered as personal property under the statute and used to make up the deficiency. In such case, however, she takes all the personal property free from any charge for debts or expenses of administration.
    Judicial Settlement.
    C. G. Gill, for executors; George H. Decker, for widow.
   Coleman, S.

James L. Collard died August 30, 1889, leaving a will which, has been admitted to probate. At the time of his death he was the owner of a farm which has since been sold by the executors for $4,062.50. The farm was subject to a mortgage for $1,000 which was signed by his widow. Deceased also had about $300 of personal property. The deceased left a widow, who was childless, but children by a former marriage survived him.

The question now to be determined is what are the rights of the widow under chap. 406, Laws of 1889.

Section 1 of that act, giving $1,000 to the widow from the estate of the deceased does not apply in this case, the deceased not having died intestate.

In ascertaining the rights of the widow under the provisions of section 2 of the act, following the rule laid down in the Matter of Daggett, 29 St. Rep. 864, which was affirmed in General Term and reported in 37 id. 810, overruling the decision in the Matter of Steward, 30 id. 438, we must ascertain the present value of her dower, which is $307.41, and to this must be added the $150 given her by statute, making together the sum of $457.41. To this latter sum must be added, from the personal property, $542.59, to make up the required sum of $1,000, if there is so much, or, if there is not so much, what remains.

The personal property is not sufficient to make up the amount required so that the widow may receive a full $1,000. And this raises the further question Avhether the conversion of the real estate into personalty by the sale under the avíII makes the proceeds of the sale personal property within the meaning of the act.

I think not. The amount to he set apart from the personal property to make up the $1,000 is to be ascertained and set apart by the appraisers, whose acts relate only to property as it was left by deceased. The deceased could not direct a conversion of the real into personalty which would defeat the dower, and being considered real for the purposes of the dower it cannot at the same time be considered personal for the purposes of the act. The rights given the widow by this act are received by her independently of the will, and they are therefore to be determined by the nature and character of the property before being affected by the will. In this case the widow therefore has no claim to the proceeds of the sale of the real estate other than the value of her dower right; she, however, takes all the personal property free from any charge for debts or expense of administration. Matter of Daggett, supra.


author: Coffin, S.

text:
    In the Matter of the Guardianship of Louis H. Patterson, a minor.

      (Surrogate’s Court, Westchester County,

      Filed July, 1891.)
    Guardians—Bond.
    The fact that the estate or fund has been diminished by unavoidable losses or payments of claims, furnishes no ground for reducing the penalty of the bond given by a general guardian, even though the guardian is obliged to compensate the surety in proportion to the amount of the bond.
    Application to reduce amount of guardian’s bond.
    In October, 1887, William Patterson, of Albany, was appointed the general guardian of the above named minor. The penalty of the bond given by him, based uuon the rental value of certain real estate owned by the minor in the city of Yonkers, and of his personal estate, valued at $600, was fixed at $2,100. He filed such bond with the Fidelity & Casualty Company of the city of Eew York as surety. The guardian now presents a petition.stating, erroneously, that the amount of the penalty of the bond is $2,500, and “that the only property which has come into the hands of your petitioner as general guardian of said Louis IT. Patterson, and not paid out and accounted for, is the sum of $153.46, received by him September 13, 1889.” He also alleges that the real estate has been sold by order of the Supreme Court, and his ward’s share thereof deposited with the county treasurer of Westchester County to the credit of said ward, to be paid to him on his attaining the age of twenty-one years; and “the petitioner prays that upon executing a new bond with sufficient sureties in the sum of $-, he and his surety may be released and discharged from the above mentioned bond of $2,500, and that an order to that effect may be entered.”
    Mills & Bridge, for petitioner, cite section 2821 of the Code.
   Coffin, S.

It is not discovered that the section of the Code cited by counsel has any bearing upon the power of the surrogate to make the desired order. It simply relates to the power to appoint a guardian, while the prayer of the petitioner is for an order to substitute a new bond (say $400) for one of a larger amount, filed on obtaining the letters, in the first instance, by the guardian already appointed.

By sections 2597, 2598, etc., of the Code, provision is made for the increase of the penalty of the bond of an executor, administrator or guardian, but none is found relating to the reduction of the penalty. It is claimed, however, that if the court has power to increase, it has power to diminish. But the first, as is seen, is given by statute, while none is conferred as to the latter. Nor can any good reason be assigned why the amount of the penalty of a. bond, based upon'ascertained facts as to the value of an estate, should be reduced. The fact that the estate or fund has been diminished by unavoidable losses, by the payment of debts or legacies, or payments on account of distributive shares, or other like causes, furnishes no ground for such reduction. To the extent of such losses and payments the liability on the bond would be diminished, and there would be no reason to ask it. Were such power, as is here asked to be exercised, assumed by this court, probably similar applications would be very frequent and numerous.

The reason for this application, it is understood, is not for the benefit of the ward, but of the guardian. lie has to pay the Fidelity & Casualty Company, which is his surety, its charge for acting as such on the bond originally given. This does not concern the ward, for, as held by me in the case of Jenkins v. Shaffer, 6 Dem. 59, 19 N. Y. St. Rep. 900, the expense is personal to the guardian, and is not a proper item of charge against the ward’s estate. If this be so, and the guardian is unwilling to incur the expense, he should seek relief by resigning or in such other mode as he may be advised.

The prayer of the. application is denied.


text:
    In the Matter of the Judicial Settlement of the Accounts of the Executors of William Tobin, Deceased.

      (Surrogate’s Court, Orange County,

      Filed December 4, 1890.)
    Executors and administrators—Accounting—Joint bank account.
    Testator by Ms will gave Ms wife $1,000, and the balance of Ms estate to his brother. He and his wife had an account in bank in their joint names in which each deposited, having independent sources of revenue, and the larger portion of the drafts upon it was made by the wife. Shortly after his death she drew out the balance. Bold, that there being no proof as to how much belonged to each, the presumption was that each owned half; that the wife held as trustee any part of such balance as belonged to the estate; that the court had no power to direct her to pay the same over, but would direct that the same be charged against her statutory allowance, the legacy having been paid, and that the executors pay the same to the brother.
    Testator William Tobin died May 26, 1889. At the time of his death there was in the Newburgh Savings Bank an open account in the names of “William and Catherine Tobin,” amounting to $402.41. Catherine Tobin was the wife of William Tobin. Both had independent sources of revenue sufficient to account for the half or the whole of the account. William was a soldier in the employ of the government and was stationed at West Point. Catherine at the time of her marriage was keeping, and after that continued to keep, a saloon at Highland Falls. The bank officer testified that previous to William’s death all the drafts upon the account, twelve in number, had been made by Catherine, except two. The amount drawn out by William was $500, and the amount drawn by Catherine was $2,333.32. The account began in 1873. Three days after William’s death Catherine drew out the balance of the account, $402.41. By his will the testator gave to' his wife $1,000 “out of my personal property of money in bank or otherwise,” and gave his brother, James Tobin, “all of the balance of my money in bank or otherwise.”
    The legacy to' the wife is not mentioned to be in lieu of any right given her by law as widow. The will is dated December 1, 1883.
    W. C. Anthony, for executors; A. H. F. Seeger, for Catherine Tobin; J. G. Graham, Jr., for James Tobin.
   Coleman, S.

Objection is made upon this accounting by James Tobin, that the executors have failed to account for any part of the bank account, and urge that their account should be surcharged with the amount of the testator’s interest in the account, or that such amount be deducted on this accounting from the amount of the legacy to Catherine Tobin, for which they ask to be credited, or from any other moneys she may be entitled to from this estate.

The will disposes of the testator’s whole personal estate; she, therefore, takes no distributive interest as widow, R. S. 2565, sec. 75, 8th ed., notwithstanding the fact that the legacy to her is not mentioned to be in lieu of her legal rights. She is, however, entitled to receive the $150 given her by statute, Sheldon v. Bliss, 8 N. Y. 31; Vedder v. Saxton, 46 Barb. 188, which appears not to have been paid to her.

As to the bank account, there is no testimony showing how much of the account belonged to each, and the presumption is that at least one-half of it belonged to the husband. Gelster v. Syracuse Savings Bank, Gen. Term, 4th Dep., 17 Wk. Dig. 137.

Catherine had the legal right to draw the money from the bank, and she holds, as trustee, any part of it which belongs to the estate of the deceased. Mulcahey v. Emigrant Industrial Savings Bank, 89 N. Y. 435; Gaffney v. Pub. Adm’r, 4 Dem. 223.

The proceeding is for a judicial settlement, and in it the rights of the legatees under the will must be determined by this court, which has jurisdiction to settle and adjust the conflicting rights and interests in and to the fund held, or which ought to be held, by the executors for distribution. Riggs v. Cragg, 89 N. Y. 479, 491.

In the case of Rogers v. Murdock, 45 Hun, 33, 9 N. Y. St. Rep. 660, it was held that the surrogate, on a judicial settlement, could charge an executor with the amount due upon certain notes made by a legatee to the testator, and deduct this amount from the amount of the legacy, although the executor could not have maintained an action upon the notes, more than six years having elapsed between the making of the notes and the death of the testator.

James Tobin and Catherine Tobin are both parties to this proceeding, and I am of opinion that this court should, so- far as it has power to do so, settle their respective rights in tire estate, including the bank account. The only money still unpaid Catherine Tobin is the $150 mentioned. At least this amount should be charged against the executors as part of the half of the hank account held by Catherine Tobin in trust for this estate, and the amount thus charged against the executors, be by them paid to James Tobin, as residuary legatee, and Catherine’s claim thereto thereby extinguished. As to any fur-there interest the said deceased had in said bank account, this court has no power to piake a decree directing Catherine Tobin to pay over. Although the executors have not collected from Catherine Tobin the interest of the deceased in the bank account, and have paid to her the legacy of $1,000, without retaining such interest therefrom, still I do not think the evidence in the case sufficient to charge them personally therefor. But the decree should provide that the executors shall execute an assignment to James Tobin of all such interest to be held by him to his own use.


text:
    In the Matter of the Estate of James Taggart, Deceased.

      (Surrogate’s Court, Orange County,

      Filed September 11, 1891.)
    1. Executors and administrators—Administration.
    Administration cannot be granted where the deceased left a document purporting to be a will until the question of the validity of the will has been -disposed of, notwithstanding the declared purpose of the next of kin not to offer it for probate.
    2. Same—Proof of will to avoid administration.
    No obligation rests on the next of kin to bring the will to probate in order to avoid administration being taken, but a creditor of deceased who seeks letters of administration may, if he so desires, bring proceedings for probate to determine the validity of such will.
    Application for letters of administration by a creditor of deceased, who died November 29., 1890. From statement of counsel it appears that on the 31st day of August, 1883, the deceased executed a will, but subsequently transferred all his property, so that, apparently, no property remains to pass by the will. The petitioner, desiring to attach the transfer, asks for the appointment -of a representative of tire estate, so that he may bring suit for that purpose.
    E. A. Brewster, for James Wrigley, creditor; W. D. Dickey, for next of kin.
   Coleman, S.

Petitioner in this casé applies for letters by administration as a creditor of the deceased, to which application the next of kin object, alleging that the deceased did not die intestate, and produce and file with their answer a document purporting to be the last will and testament of the deceased, and ask that these proceedings be dismissed.

The petitioner, however, urges that the proceedings should not be dismissed until it is made to appear that a will has been admitted to probate, and that only an adjournment can be properly applied for by the next of kin, to give them time in which to prove the will, and that failing to so apply, and having stated in open court that they do not intend to offer the will for probate, letters should now be granted as prayed for.

After reflection, I conclude that, it having been shown to this court that the deceased left a document purporting to be a will, administration cannot be granted until the question of the validity of the will has been disposed of, notwithstanding the declared purpose not to offer it for probate.

That no obligation rests upon the next of kin to bring the will to probate in order to avoid administration being taken upon the estate.

• That the will cannot properly be probated in these proceedings.

And that the petitioner may, if he so desires, bring proceedings for the probate of the will, sec. 2614, Code of Civ. Pro., and an adjournment, if it is desired, will be made of these proceedings for that purpose; otherwise these proceedings will be dismissed, with twenty-five dollars costs and disbursements, to be taxed, to be paid to the petitioner from the estate by any executor or administrator hereafter appointed.