The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-02-28
SYNOPSIS
-
OF Decisions OF the commissioners of
APPEALS, Galveston Term, 1850.
SYNOPSIS
Galveston Newa,

Lewis Clements OF al, plaintiff. In error,
Va. Rachel Rogers, defendant in error From
Gonzales. Opinion by Il, s. Walker, z. j.
|. The statutory law In force during tho year
1919 contained no requirements, in order To
ylndicate probate sales, that they should ro-
ceive tho confirmation and approval of the
Probate court. 2, Tho common law was
then In force, which together with tho act of
February A, 1871, prescribing shat all sales,
whether by order, judgment or decree of any
Probate court or Court OF ChAncery,
shall DO regulated and governed by the laws
governing sales under execution; and all laws
which relate TO sales under execution, shall bo
applicable TO the sales Osaboyc stated" and tho
statutes regulating executions, furnished the
rules of law applicable to the validity of such
sales, and by which their regularity and sui.
llcency aro TO be tested, 3. Other contem-
poraneous legislation relating 10 tho subject
Of probate sales arc consistent with, and sup
ply analogiOs which corr, spond 10 the con.
struction We have given TO the probate sys-
tenn of that period, rs for instance, tho act of
January II, 1913, which provided for the par
ticipation by tho heirs or legaiees of IN es-
tate, in person or by attorney, in the appoint
meDt of appraisers where sales Of estate pro-
perty was to DO made. 4. The sys-
TENS Of probate Jurisdiction existing since
tho year lSi0, on the other hand, recognize
no other Observation-Disclosures for supervision or
direction Of, or interference with, proceed
ings OF sale than the exercise of the respect
i've powers and duties of the administrator
and the probate Judge; and under them they
contemplate u report of sale by the former,
and investigation of fairness by the latter,
followed by approval and confirmation, or
by disapproval and rejection. s. Doctrine
of prosumptions after great lapse of time in
support of titles acquired under probate
sales, discussed; tho determination of this
case, whilst, perhaps, tho rights claimed
under the administrators deed might be
maintained under the salutary doctrines of
presumptions applicable TO such state of
facts ~ arc presented here, is not, however
placed upon that ground, but it is held by
us that the sale was valid and did not require
confirmation by the Probate court to give it
effect.
Thomas Longbotham VS.. B. A. Phlpot
Appeal from Freestone. Opinion by A. S.
Walker, j. Philpot loaned five hundred dol.
lars to Davie, who executed his note, with
Longbotham rs surety therefor. The note
was left ut tho bank of Oliver 81 Griggs,
without any instructions. After the maturity
of the note, PLilpot wrote to Dave, request
ing payment and saying that if the amount
was settled with Mrs. W., the mother-in-law
of Davie, il would DO satisfactory. The let
ter Dave took to Mrs W., and represented
to her that the balance due on the note
was twenty-dolars, and obtained her sigma
ture to an order written by himself, adj
dressed to the bank, for the note, she sgnin
1t on tn belief that she was assuming $40,
which sum her son was owing Davie, and
she was willing to pay. Dave wrote To the
bank, and his letter accompanied Philpots
letter to Mrs. W. and her order for the note,
stating that he had settled the note in accord
ance with Philpots request, The not re-
manned at tho bank, and Griggs enc of the
bankers, informed the surety that the note
was setteled, and tore Off the name of the
surety from the note. Longbotham, on the
belief that the note was settled, took no steps
to secure himself, and securities at the bank
belonging to Dayie were withdrawn.
Davie left the State, and is solvent Mrs. w.
refused to recognize her order stating the
fraud. Philpot sued Davio and Longbatham.
Held, |. That petition in the form of an
action on apromlssory note, with the addi-
ton of the above facts, was good on demur-
rer as against the surety, 3. That Mrs. w.
was competent witness to the transaction
had between her and Davie, and to his acts
and declarations in perpetrating the fraud.
3. Philpot was not required to make Mrs
w. aparty to suit to recover the amount
due on the note. 4. Under the circumstan-
ces set out, Griggs, in making the statement
to Longbotham, was not acting rs
agent of Philpot. 2. That Davie sent money
to the bank with directions to pay it
to Philpot when called for, but be-
fore being called for, Phillpot, having been
notified, Davie Withdrew it and applied it TO
no other purposes, does not entitlc the surety
to credit for the money so sent A motion
for new trial supported by affidavit on ac-
count of alleged physical disability of one
Of the jury trying the case is addressed pc
culiarly to the Judge trying the case and
his action will not ordinarily be overruled.
4. A trial was had, resulting in verdict
and Judgment against both defendants. Mo-
ton for new trial was allowed as to surety.
At subsequent term u trial was had
against the surety. Held, that a verdict in
form against both defendants was not
invalid, and that Judgment was properly
rendered against the surety with Judgment
against the principle in favor of the
surety.
Wake Up.