The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-12-08

IN The hllatnft N M Hlalnnutnt M effIfl
this tnnn viii not examine The record w
nscenAln whether Tie fptlfl hollow may lihYe
committed M alleged fundamental error
nhon q question N feet. Unless, perhaps, v
might IN case wlieso there Wa ~ testl'
npiiY NJ all IN support ~ the lasuc upon
which judpment was rendered. The SIRE.
Ties upon The Injunction bond IN this case
do not complain and 0s Harvey lgt IN any
event, bound for the amount Of The iu1R.
ment rendered, he cannot complain. Al.
iirmed. bonner,
l,alney and wife W.. Chambers, guardian,
etc from Red Bver county. The home
stead of an insoyent, who, upon his death,
leaves no constituent Of his family suryiy'
ing save his widow, vests In her,
and her subsequent deed thereto passes
title. The deed from the widow in this
case was an executed contract, and recited
a consideration fully paid, and the further
consideration of love and affection. IL was
commended, however, that the real consider.
alton was not paid, and failure cancelled
the deed. Held, that such doctrine does
not prevail. That it, as claimed, the con-
sideration was annual payment OF an
was valid contract which might be en-
forced against the estate of the grantee
after his death, and was lien on the land.
Affirmed. Stayton, judge.
McMoy ct al VS.. May and wife; from
Rusk county. There is no rule of law
which precludes one whose last sickness
and death was produced by his own act
from disposing of his property at will. The
statute in prohibiting nuncupative Will to
be probated after six months by testimony
not reduced to writing within six days at
ter the making of the will, has in view an
original probate in the County Court, and
has no application to case removed by
certiorari to the District Court, when the
will stands again for probate. The County
Court must be presumed to have considered
and determined the sufficiency OF citation
and publication, and in this proceeding in
view, having jurisdiction Of the subject
Gus, still its action based thereon would not
be void. Free. on Judg., secs. 126 and sos.
Affirmed. Gould, chiefjustice.
L. & III. Blum ct al. VS.. Wettermark ct ell;
from Rusk county. Creditors of an in
solvent who has assigned his property
under the statute for. their benefit, are
authorized at any time after the assignee
has qualified, to interfere for the protection
| of their inter ests, if the assignee has imper-
lied or misapplied the assets of the insol.
vent estate. Whether scheduled or not, all
property belonging to the insolvent estate,
| except that exempt, passes to the assignee
| to be applied to the benefit of the creditors;
! and this is true under both the LIST and Sd
sections of the act. Section does not APP
ply to the facts in this case, and this suit
was properly brought by some for all OF the
creditors BY the act under which this as
signment was made, all consenting credi-
| tors are not required to file their claims
with the assignee within six months from
the. publication of appointment, but
such as have no knowledge OF
the assignment may file any. time
before distribution and participate
therein. Petition that shows with reason
able certainty that creditors will suffer loss
| by misapplication of certain property is
| this case was for a smaller amount than the
value of the property alleged to have been
misapplied, and it was not necessary for pc
| tition to allege insolvency of the assignee
and his sureties The removal Of the as
signee being relief incidental to other re.
| lief sought here, is within the general
equity powers of the District Court. The
court erred in sustaining the demurrer. Re-
versed and remanded. Stayton, judge.
Syllabus of Opinions of the Commissioners
of Appeals.
Wright VS.. Watson; from Ellis county.
When it appears that prior contract has
been expressly annulled by agreement of
the parties, and another substituted, evil
dence of what was done under the annulled
contract is properly excluded. The suit
being to enforce the subsequent contract as
substitute for all prior agreements,
to put it in evidence, and it was a written
contract, it could only prove itself Having
thrice amended his petition, and after an
nouncement of ready, suffered to file a trial
amendment, the court did not err in refus-
ing non-suit. Affirmed. Quinan, commits
sioner.
Loving VS.. Dixon from Cooke county
The signature OF one party to a joint obi
CATION uDon the condition that another
would also sign it, otherwise it should be
null and void, does not bind
him thereon, until the other has
signed. A promise to pay, made
subsequent to the execution of the note, the
other party not having signed, would be but
the promise to pay the debt of another, and
in order to bind upon the new promise
some consideration must be shown. And
to institute a recovery upon the new prom
ise, such promise must be set up in the
pleadings. Reversed and remanded. Watts,
commissioner.
Galveston, Harrisburg & San Antonio
Railroad Company VS.. Pieuffer q Ireland;
from Guadalupe county. Amended petit
ton that set up the fact that an absolute
deed was made upon certain conditions, is a
proposition to vary written con-
tract, and motion to strike out was
improperly overruled. [Whart., sec. 1Q50.l
While parol evidence may be received to
prove an oral agreement precedent to the
attaching of any obligation on any con-
tract, condition subsequent cannot be
proved by parol. The release of the right
of-way by /. was release to the extent of
his interest, and could not affect P.'s right
to compensation to the extent of his inter-
est. Damage to land made in the prelim-
mary survey is recoverable by the then
owner, but not by a subsequent purchaser.
Reversed and remanded. Quinan, COM
missioner.