The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-13
SYNOPSIS
or decisions Of the supreme Court,
Galveston Term, 1850,


peal from Galveston, Opinion by Gould
j. The defendants could waIyo their lmmu'
nlty under the statute Of frauds, and unless
Inc defense was In some way sol up or called
10 rs attention. the court wRs not required b
interpose II. Browne on Stat. Frauds, soc
sos and references Dan Oh. Pr (ith Amer
od), p. Ga6-7i Burke VI. Haley, 2 Gilmag
my, 0lii Gillespie vs.. Battle, 10, Ala, 27B
Colznu VI, Graham, 2 Paige. 1915 Crutch-
leld vs. Donathan, 40 Tex, 600, The record
fails to show TINT the statute OF frauds was
invoked us defense on tho trial either BY
blending II, by obleotlng to tho admislbllily
of evidence, by asking instructions or other
wl,o. In this staIo Of tho record tho defend
ants eannot complain TINT tho court did not
dive them tho benefit ofan immunity which
they do not appear 10 have claimed Ia time,
If the court of IN own motion gave an erro-
neous charge basod on the statute, the do
lendants were not injured thereby aud can
moi complain. Having denied tho contract
,ued on Ihe defendants might have objected
10 rs establishment by evidence insufficient
under tho statute, but rs II does not appear
that the objection was In any way made until
nftor tic trial, II must be presumed, In sup
mort of the Judgment, that ho right under the
statute was asserted, Affirmed.
Douglas Harris, administrator, vs.. j. II.
Catn. Opinion by Gould, j, The supeH.
or title 10 the land sued for remained In the
heirs and representatives Of the estate of
Whitfield, and their petition showing that
nct was sufficient TO support IN action for
tho recovery of the land, unless II also dis
closed some legal or equitable defense. Tho
legal title Of the estate carried with II legal
right TO the land and in asking the enforco-
ment of that right appellants sought no
equitable relief. The 0yermenis Of the petit
ton show thatthe recovery Of the land Is
sought for, not for the purpose OF resembling
the contract and enforcing n forfeiture Of pay
ments made, but for the purpose Of compcll-
ING either the performance Of the contract
by tho payment of the balance of the pur-
chase money, or the return Of tho land, What
ever may have been the laches OF the repre-
sentatiyes of the estate of Whitfield In entorc-
ING lien on the land, IL was inequtable in
the purchaser or any one standing in her
stead 10 retain the land without making full
payment. If tho defendant relies on the
partial payments and the election and efforts
10 collect the balance as emitting him to the
privilege OF paying the balance and holding
The land, tho petition proilers him that privi-
lege. Those facts, or the aches Of plaintiffs
give him no right, legal or equitable, to re-
tain the land discharged from all demands
of Whiteneld's estate, 1t mas be that the
partial payments in connection with facts
eycusing the failure to make further pay
ments might entitle defendants 10 some
equitable relief sought by him and accompa-
MED by proiltr on his part to do equity TO
plaintiffs. In order to entitle himself to
equitable relief, defendant must himself do
equity. The case now before the court DIFF
fers from the case of Harris Vs. Catlin (37
Texas), and from the case Of Thomas VI.
Beaton (25 Texas sup }, in that in both Of
those cpses the appellants had soasht equi-
table relief, and could only obtain it on the
terms of dom. equity. II differs also from
Roeder vs. Robson GO Texas, 75iJ,
and from Estel VS.. -, recently decided
Mt TYLER term. In each Of those cases the
vendor claimed forfeiture of payment
made. Here the plaintiffs seek only to en-
force only the original contract by n legal
remedy, and the facts stated in the petition
MS amended show no valid reason in law or
eouit, for denying the estate the benefit OF
that remedy, Browning vs.. Estes y Tex.
l63, Estes VS.. Browning II Tex. 237, Landen
VS.. Rousonville T. Tex. 1858, Hill VS.. Still
70 Tex. So, BakerVs Rorney q Tex. 50,
jackson ct al VS. Farmer ct al, decided at
present term, In many of its features the
present case resembles the one last cited.
Under the averments Of the petition held
only such title as Mrs. Kirby acquired and
held the land subject to the superior title OF
Whitfelds estate. If there was any weight
in the objection that the administrator, under
the statute in force at the time suit was
brought, should have obtained an order OF
the probate court before instllutlng an aeuon
of trespass TO try title, that statute had been
repealed, and afforded no grounds for sus'
tanning the exceptions. Because the court
erred in sustaining exceptions to tho petition
the Judgment is reversed and the cause re-
handed.
A. p. Mccormick, administrator, VS.. Il. A.
NcNeel. Appeal f,on Brazoria. OPINION
by Bonner, }. Although the contract OF the
wife in restraint of her right TO the home
sead made either in contemplation OF mar
rage or after marriage, should be closely
scrutinized, yet MS the wife in this case IS the
only one who can complain, it is not believed
that. under the circumstances, the court
should interfere in her behalf Wnen, WIN u
full knowledge of all the facts and after the
disability of coveture is removed, she volun-
tarilv elects TO take the provision made Tor
her In lieu of the homestead and not the
homestead itself AT the time OF the mar
rage settlement both the husband, }. u. Nc
Neel. SEN, and his intended wife, Laura '.
McNeel, the appellee, were competent to
contract in regard to the homestead, and as
they composed the only constituents OF the
family then and at his death. others, not IN,
terested in the homestead e. caption, should
not be heard to complain. We do not ad-
nit that the husband, being the sole CON
stituent of tho family could not as against
himself have encountered the homestead oy
mortgage without power or sale; IL 49,
however, marriage being a valuable consia'
Grafton, his note therefor was valid in law.
The legal effect of his will made this note a
charge upon his homestead after bis death
and consequently after it bad ceased TO nave
been his homestead. Although this could
not ordinarily have been done in favor or u
third party to the prejudice of the wife, yet
in this case, she is the only party interested,
and being the beneficiary under the VIII, she
could elect either to accept ITS provisions or
retain the homestead privilege That she IN
her petition, set out the facts OF the case ana
prayed Judgment for the note and interest
and sale of thu property charged by the
will with its payment, to satisfy the same OF
in the alternative for the homestead ltseli'
should not prejudice her claim. she e, was en-