The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-19

syncpsss OF Opinions Of commission
g seI1S pp'"'' Adopted BY supreme


Hunton Of al We Nichols OF al: appeal
from Travis.
l. There is notin the twenty two sections
OF the act February 8, 1910 entitled
"An ACT regulating the duties Of the probate
courts and the settlements of succession,
q line or syllable from which csn,be de luced
any power or authority in the chi,f justice
to make partition Of estates or decree the
sale of lands in vacation. Hsrtley's dig
arts. 2i5; 252; 253; 1919; 1881; 1886 &e.
Judgments or DEGREES ren5erei out OF term
time ara simply void-they are utter utilities.
1t would be quite too gresta ntesscn to
presume tina. judge of the probate court
was ignorant OF the meaning Of the term
vacation" and that in Using il he meant to
express the idea that ne was then
setting in open court at regu.
lar or special term OF tho court.
2 Tho 18th section Of ian act TO adopt the
common law of England, 10 repeal cerlsin
Mexican laws and to regulate the marital
rights of parties had no application to the
sale or transfer of the property of the wifi
by strangers. The fair construction is tina,
il was Intended to apply to illegal sales by
the husband, and that only.
3. Ii adverse possession of the property
WIS taken previous to the death of the
mother the defense of minority or coyerture
against the bar of the statute will not avail
the plaintiffs. Their minority cannot be
tackled to her coverture The saving Of the
stature is DOLLY to these to whom the right
frs, accrues. Reversed and remanded.
Quinan, Com.
Bracket, Adm. VS. Hinsdale ct al; appeal
from Grayson, This is suit against the sher-
1T and the securities on his official bond for
tho wrongful seizure and sale of certain cattle
and hogs, claimed in the petition to be the
property Of appelees. |. Lyon had ac-
quired substantial right to tho property,
and it is Il familiar rule IN the juris pru fence
Of this state that all persons having mate.
rial interest in the subject matter of the sui,
ought TO be made parties. 81 Tex. 425; 6
Tex. 446; q Tex. 453. 2. Tho court did
not err in excluding tina admissions aud de-
clsIsions OF Lyons, as he WAS not party to
the suit 8. Any charge of the court di
recty or indirectly indicating the necessity Of
greater degree of certainty 10 cases invol-
wing fraud than in otbor civil causes would
be error Affirmed. Watts, Commissioner
Sacra vs., Sempe ct al; appeal from Gray
500. Salt WAS brought by appellees against
appellan. for tho recovery of tho valus of
threshing machine sold to one Enfield
with the express agreement, made aacondi-
ton OF the sale, that the title of the machine
was not to vest until it was fully paid for. Peti
ton alleged that Sacra, having full notice of
the conditions OF the sale, rights of plain.
titfs, otc., took possession of the machine.
converted it to his own use, etc. Sacra
purchased the machine ut U. s. msrshals
sale, under protest of plaintiffs, who III en- and
there gave notice of their claim and exhibited
the written contract with Eofed. Cause
was submitted to court without Jury and
judgment rendered against S,cra for $500
and costs. Held. that the contract between
plaintiff and Enfield unmstakably consti-
tuted conditional SALE See Story on sales.
Secs. l, 800; Parsons on contracts 5 Ell
5SS; IL Humpb. so; 80 Me. %; I Ark. 253:
Fl Barb. $50; - Barb. $685. Affirmed.
Walker, Commissioner.
Bevins and wife VS. Cameron ct al; sp-
peal from Grsyson. Suit was brought by
appellees against appellants for lumber,
etc, furnished for Improvements on lots
which were the separate property of the
wife, though unknown to plaintiffs at the
time of the verbal contract made with her
husband FIR said material; that plaintiffs
fixed their lien within the time and mode
prescribed by law, etc. Verdict for plain
titfs fading toe property subj CT to plaintiffs
lien. Held, that the wife's estate cannot be
made liable for improvements thereon not
authorized by her To make the wifs's sen.
arste property liable for debt, it must be
contracted by the wife herself. Al Texas,
245; % Texas, 1870; 20 Texas, S76; 80 Texas,
l49. To effect her homest I'D rights it would
be necessary that her consent must be evI-
denoed in the mode prescribed by law for the
allsnation of her separate property. 33 Texas,
754; so rexas. SIG. Reversed and remand
cd. Walker, Com.
Hunter VS.. Nichols; error from Limestone.
There being no service of the citation 10
error upon one of the defendants, the court
Of APP eals has acquired no jurisdiction. 16
Tex. 143; 20 Tex. 663, art. OSi Rev. Stat.
The husband was, of course, necessary
party to this writ of error, and no was 50
treated by plaintiff 10 error in his petition
for wri. Of error. Tex. 1874; Tex. 37S.
Dismissed. Walker Commissioners
Randall Va. Thompson Bros appeal from
Dsllas. II is now settled that the statute OF
frauds throws no obstacle in the way of q
parol or lease, or of an agreement for a let
ting for a year to commence in future, and
there is nothing in the common laws to pre-
vent it. Selden, 1856; Il d. Smith, 100 ;
20 Iowa, los 2, For another reason, ii we
had any doubt Of our conclusions upon this
point, we might also maintain the validity of
this parol lease, and that is tho fact that the
defendant went into possession under it and
psid rent. Here wa, such part performance
as has been held sufficient to take such leases
out of the operations of the statutes. Ohio
statute records. Reversed and remanded.
Quinan, Commissioner.
Kelly We. Belchsr; appeal from Coryell
Kelly enjoined Bscher, sheriff, from pro-
cSeding to collect certain taxes for payment
OF school teachers. After the parties had
gone to trial, the fact was discovered that
there was ID order for the levy of the tax on
the minute book Of the county court, where.
upon the court allowed defendant to with
draw the Gaze from the jury and continue IT,
Meantime, before final trial, the commits
sioners' court entered the order nunc pro
tunc. The case was submitted to the Judge,
who dissolved the injunction and gave iudg-
ment against plaintiff for costs. Held,
!. That the withdrawal of tho case from
tho jury and the granting Of the continuance,
was matter within the discretion of tho
Judge, aud is not the subject Of revision.
2 The entry Of the order nunc pro tune.
did not relate back 80 as to make legal the