The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-05-19
THE COURTS.
Synopsis OF Opinions OF Com issiOn.
ers of Appeals adopted by Supreme


ers of Appeals adopted by supreme
Court
Hueske, Admr., VS. Broussard s. Go. appeal
from Washington county. Wilman 81 Co.
were indebted to Brousssrd & Co. evidenced
by certain promissory notes which were subs
sequeLtly endorsed as follows: accepted
payable ninety days from January ID, 1870,
with interest from this date at ten per cent
per annum, signed John Sbackey." Suit
YVES instituted against John Shsckey, alleged
to be firm composed of appellants
intesta!e, and the said Shackey, Wilman &
Go. having been released. The court below
overrued the defendants exceptions, because
the undertaking ofthe firm of John Sheckey
WAS an original one, and not that Of indorsed
surety or guaranty. Verdict and Judgment
for plaintiff: motion for new trial ,uyerruled,
and Hueske's administrator appeals, the
principal assignment Of error being The rul-
ing of the court holding the petition sufficient
is original or collateral may
of construction be Il question tor the court,
and then it is for the court, but il is often a
question Of fact, and then it is for the jury,
2 Parsons Oh Cont. cd. p II. The endorse
ment which was made by the defendants,
appearing to be doubtful, and requiring, in
order to arrive at the true meaning, further
evidence, parol evidence was clearly admissi-
bic to ascertain the intention of the parties.
Affirmed. Walker, Com.
Spoir Va. Purcell et al; appeal from Bas.
trop. Appellant instituted this suit in 1873
against appellees as the minor children Of
Jsmei B. Purcell decessed, for certain lands,
allep;-r ths: he esme though decided to
said ucaased Pure II, we're purchased with
MOI paid by appellant to-wi;: $l,25o,
with the u. Outstanding and agreement be.
tween him and said Purcell that the land WAS
!, 10 property of appellant, and to be
a,rd rust by said Purcell for him until
the tchase money, with interest thereon,
was pald to him by said Purcell; also prayed
in alternative for judgment for ST, $50 and
interest. Upon trial there was verdict and
Judgment for plaintiff for ST $50 and interest,
from which, alter motion for new trial was
overruled. the plaintiff appealed. Counsel
ia their brief only insist that error was com
mitted in charge given, and those asked and
refused. 1t has been held that although
reduced 10 writing, verbal trust may
be shown TO have been annexed to
the contract, but to be enforced
must be established with clearness and
certsintv. 81 Texas 2l9. These trusts are
uftnu kids, such as arise from verbal
sgrrenA.,, and such as one implied or result
fr "A 10 nature OF the transaction. The case
made by appellants petition is that of a
trust created by verbal agreement and The
court in its charge correctly confined the
appellants right TO recover 10 the allegations
contai1e ed in bis petition. A charge which
ught TO prevent an issue OF the existence of
an implied or resulting trust was properly
refused because not made by the pleadings.
IL g in tfah Ia
ceeainps is left TO the discretion of the cour.
z Tex. 207. Affirmed. Watts, Commis-
sioner.
Pelcher Va Kirk ct al; appeal from Ersth.
Appellant brought this suit Of trespass to
try title to third Of league of land pat
ented TO John Gsylor, sgsinst appellees,
alleging that said Gsylor oied in l84S in
Liberty county, and that she Is the only SUI =
wing legsl heir, and that sppelees com.
mitted tao trespass and made the illegal
entry In August, 1873. The defence was
mot guilty." assertion Of title in themselves,
valuable improvements, innocent purchasers
for value ni without notice of any adverse
claim, &c. The trial resulted in verdict and
judgment 10 favor Of sppellees. The evil
dence ndduced tended 10 show there were
living other heirs Of Gaylor. The court 10
eject charged the Jury that II the, believed
there were then living other heirs Of Gaylor
besides appellant then 10 fBd sgainti
her. Appellant asked counter charge
10 the Eject that a BoB-joiuder Of parties
plaiatid must be plead, &c md as there was
no such plea in this case. If tbey believed
from The evidence thai Gsylor. the grantee II
the lard, was deed. ard that appellant wsE
bis heir II Law. &C., then 10 find for appellant.
THIS ~as refused. The charge a. given snd
the charge refused Are assigned as error. We
conclDds tbst under The obligations Of sole
heirship, provided this csss was Otberwise
established BY the evidence that the plaintiff
would hsvs been entitled N recover, not
withstsnding the evi3ence might bare shown
that there were other living heirs, not parties
10 the suit provided as 10 Der, the oefeDdsu's
occupied with reference 10 The sttitu5e q
Strangers, trsspsssers or vr0Dgdrer- A
tenant m common msy nisinisin trrsps-s 70
try tile sgsi1st strangrr. SEC 10 Te1
$50. IS Ter 81; ~ Tex 765; "a Tex. 2Ol; 2.
Ten 554; 46 Ten ala. 80 Ter T25; 50 Tea
sse TIE court erred IN both The chsrge
given snd refusing The ctsrKe asked Re
versed and rsnandsd Watt. G.