The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-09
SUPREME COURT.
Synopsis of Opinions of the Supreme Court,
TYLER Term, 1882

Tyler Term, 1882.
Wright VS.. Heffner's executors; from Nor
ris county. The law in force at the dealt
of deceased QS71), regulating sales made by
an ordinary administrator does not ap ply
to executors acting under a will to the eX
tent that sales made by executors not in
strict conformity with the manner pre-.
scribed for administrators or executors sale
made under the order of court, especially
when such sale was fairly made for u valua.
BILE consideration, a fair price, and for the
purpose of partition among the legatees
under the will who acnuiesced therein for
more than ten years. The only party who
attacks the sale is the husband of one of
the legatees, to whom by his instructions
the purchased property was decided. When
suit is brought for purchase money of prop
erty sold, a plea setting up fraud to consti-
tute q good defense must aver
restriction or IN effort toward
such. He cannot retain it AID resist the
payment of his purchase money note, which
was the consideration, because of the want
of authority in the party making the sale;
(28 Texas, 221.) The court overrules Aubrey
Il Whitmore, 81 Texas, 627, in so far as it
besides that in sales M de by executors, adj
ministrators or guardians of law on credit,
no vendors lien can exist to secure payment
Of purchase money. Affirmed, Stayton J..
Miller ct al. VS.. Miller ct al; from -
county. Where lease has been tried since
the adoption of the amended rule 81, and
submitted to the judge on questions OF law
and fact ard he has failed to enter his writ
ten conclusions of both law and fact, and
thew are not contained in the transcript,
and there is no assignment of errors there
in, all errors will be considered waived, ex-
cept such as are fundamental and apparent
O record. There being none u appa-
rent the case is affirmed. Gould, C. j.
The rule above referred to as amended, is
as follows:
1T is ordered that rule q 0. this court
be amended so that from and after the LIST
day of January, 1882, the same shall read as
follows:
"Rule 81. In cases submitted to the judge
upon the law and facts the assignments OF
error shall be governed by the same rules
as IN other cases, and the party desiring to
appeal should, as a predicate for specific as
signments of error, request the judge TO
state in writing the conclusions of fact
found by him separately from the conclu-
sions Of law.
"And in an agreed case under the statute
the foregoing rules, as to assignments of
error, shall be complied with as far as
practicable"
Tierney VS.. Frazier ct al; from Caldwell
An officer is not bound to judge
of the fairness of a writ Of execution given
him to serve by any means within his
knowledge, but may safely rely upon its
fairness. The officer had been given the
wnt, had been notified OF no settlement Of
the Judgment upon which 1t had issued,
and therefore was not bound to investigate
the correctness Of any receipt shown him,
or take the assertions of any witness TO any
settlement. He holding a process from a
court of competent jurisdiction Is n sutii-
Gent justification for his levy. No action
for trespass can be maintained. Affirmed.
c. ].
Griffith and Wedge VS.. Morrison & Mat
thews; from Anderson county. A condi-
tional sale of chattels, conditioned that no
title shall pass until the performance OF the
condition. Precedent, i. e...that all the pur-
chase money shall be paid, amoun TO no
such apparent ownership as Will pass title
10 the second purchaser superior TO that OF
his vendor, although the second purchaser
may have no notice or want OF title. A
given upon property IN Hender-
son county, and duly recorded in that
although the property may be re-
moved TO Anderson county, n be sold
here and no mortgage r~ecordedin the latter
county within four months after its trans
vet the mortgagOr still residing in Hen
a mortgage duly recorded in that
Is constructive notice for all persons
One relying OF a pretended power TO sell
given in q letter containing recitals OF the
mortgage, etc, Is held bound in Law with
notice Of such other recital, their eN-
tent. the extent Of authority TO sell,
tic. Reversed and remanded Bonner, ].
Cove ct al. w. keOwn ct al; from Har-
ison county. This is a suit by the heirs Of
Rene Patterson. deceased. In 1867 ad-
illustrators we're appointed and then gave
bond. In 1867 the county court demanded
new bond from them, which they gave.
the time cerfhin securities came
INTO the hands Of the Administrations under
he hrst bond, which not being accounted
suit was brought against the admins
surviving, and the legal heirs Of
hose dead. and against the securities upon
both bonds. Upon exception 20 The petit
lion in the court below the suit was dis
because Of m~isjOinder Of parties In
the securities OF the first bond with
hose on the second. Held, in as far ~ the
proceeding partOok Of q discovery and ac-
for funds or securities winch cAme
INTO the hands Of the administration under
be first bond, as the papers were lost y
be facts were peculiarly within The knOEl-
Of appellees, Il psrtO0k Of such a
rust character as gave the cOur q jurisdic-
ion Of blended law and equity, anditerred
n dismissine the suit for misjoinder 81 par
les. Reversed and remanded. Bonner, J. /