The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-01-25
COURT DECISIONS.
Syllabus of the Decisions of the Supreme
Court, Tyler Term, 1881.


Brockenbrough and wife VS.. Melton; from
San Saba county. That the County CLERK
whQ recorded it was the attorney in fact
does not render illegal the registration OF {
power of attorney, an deed made under
it. In this State the Probat, Court has gen
eral jurisdiction over the estates OF deceased
persons, and the rule obtains that the find
ines of court OF general jurisdiction with
reference to juIisdictiohal facts upon which
q judgment is founded, are as conclusive ~
collateral proceedings rs any other adIudi
cation. One who derives title through al
administrators sale, ordered by court moi
having Jurisdiction, must be held TO con
structiye notice of MISREPRESENTATION of sucl
courts. Reversed and remanded. Bon
ner,
Timmons and wife VS.. Bonner ct al; from
Cherokee county. That the pages of an ap
peal bond were not tackled together in con
secutive order, Is not of itself sufficient
ground to warrant dismissal. This ap
peal was by plaintiffs below, who were moi
satisfied with their judgment for S747, anC
their bond was for $500, conditioned liter
ally rs required by statute, to suspend the
execution of Judgment" As the judg
nent was in their favor bond to suspend
was not necessary. But as such bond, undel
Article li04, it was Insufficient in amount
and wa, not properly conditioned for cost
bond under Article l4Ol. If this were case
of proper supervsiyc appeal bond, 10 cost
bond ndcr Article ll0l would be required
but il does not come within the Statute
The conditions of bonds to remove cases tC
this court must be strictly complied with
which is not the case here. Judgment was
for $7i7, with interest from October %
1879, and the bond fixes interest from Janu-
airy, 1880. This is paIpable distinction
Motion to dismiss is sustained, Gould, C. j,
Woodley VS.. Adams, from Harrison coun-
ty. The appellee sued for the recovery OF
one-haf Of Il tract of land, claiming by the
will of his father, who died in 1859 Appel
LAM claimed by virtue of purchase Mt exc
cuton sale, upon Judgment against the
executriX, on a community debt, the prop
erty also being community. The evidence
shows that the will of the appellee's father
appointed his WIFE appellee's mother, exec
utrix. The statute then in force Hart Dig.
1910 required mother action in the County
Court than PROBATE and registration of the
will and return of inventory Of estate,
which was done in 1859. In that year one
s. instituted suit against the eXecutriX and
recovered Judgment by consent for 800,
with stay of execution until January LIST
thereafter. Writ of error was sued
out to this court, and judgment affirmed in
1868 with 10 per cent damages for delay.
Execution was levied and the land sold to
the persons under whom appellant claims
by regular chain OF transfer. 1t is claimed
that the Judgment to ), was void, for the
reason that under Art. 1918 Hart. Dig. Il
creditor could not maintain II suit against
the cxecutriX, unless the heirs or persons
entitled to the estate had been cited to ap-
pear and give bond, and had done so, which
does not appear to have been done. But
held that by the return of the inventory,
under the act quoted, the eXeCutriX be-
came the legal representative of the com
munity estate for every purpose. The
judgment in favor of 5. was valid, and the
court erred in holding it void. Reversed
and remanded. Stayton,
Hunt VS.. Makcmson, from Williamson
county Where it appears that no effort
had been made TO take the dispositions of
witnesses outside the State, until after the
commencement OF the term, and the first
application for continuance had been re-
fused, and IL appears that the witness
living in the county had been subpUnaed
after the refusal of the first application, and
the substance and materiallty of his evil
hNhNN 10 Al'N oIDNIt Nulll VI ulllttliR Is
manifest, and the application insufficient.
While the note and mortgage of IL. il offered
solely to show an equitable interest in the
land III controversy, was inadmissiblc, it
was admissible If, as was the fact in this
case, IL was offered to show his interest as
mortgager in the land, and was material to
him as plaintiff or rs defendant TO the cross
action. Evidence that notice of the eXis-
tence OF the note and mortgage was given
at the sale, will not supply the place of the
excluded note and mortgage as evidence,
The rule which, in eases tried by the court
alone, presupposes the non-considcration
OF incompetent testimony given, does not
extend so far rs to excuse the rejection of
competent evidence. Reversed and re.
handed. Gould, c. /,
Campbell VS.. Cox; from Anderson
county. Objection that the amended nett.
ton was not endorsed as required by Stat.
ute In actions OF trespass to try title must
be interposed at the proper stage of the
proceedings or II will not be considered ON
appeal. See % Tex, $50. The record dis.
closes what pleading is purported to be
amended, and that the amendment was by
leave of court. The certified copies of the
recorded deeds were properly admitted i'm
this case. See y Tex, az Olallnld
vs.. Perry, which is conclusive
Of the question, Assignment that
the judgment is against the law and eyi.
dencc, Is too general Tor review. The nlinu
OF the original petition suspeuded Inc
running Of the Statute of Limitations. ma
" is held that neither the abandonment mi
the suit 10y some Of the original plaintiff,
ner the change In the ayormcnts deraigninr
title amounts 10 new cause of action
Affirmed Gould G. l.
Watson vs.. Aiken. from Red River
county. The Constitution of lS76 provide.
that all interest charged over H. Der cent
was usurious,and required the Lcgislaturrt,
provide penalties for cXaction an excess.
The penalty imposed hereunder wa,
forfeiture Of the entire interest, 4
usury be pleaded specifically under
aihdayit. This transaction involving an in.
tcrest oi IL per cent, was entered into sub
Sequcnt to the adoption of the Constitution
but prior To the act VI August ~, denounc
ing the penalty, But, held, that il properl,
pleaded, the penalty could he invoked. m,
defense OF usury can be pleaded against ;
new note given TO cover the principal DIN,
and the accrued usurious interest, an,
which palpably was designed to cover m,
usury; and sale of land under ,
trust TO secure the new not,
IL without authority II balnnc,
OF tae principal due Is rendered. This MA
an action of ircspass TO try title to the Ian,
sold under the trust IN secure payment "a
q the new hotc, and under his Plea of "no
guilty TO such action the defendant conl,
not recover by evidence OF usury I'm m,
original contract, The court did not err h
receiving evidence o. the usury, hut undo
the evidence did err in rVn,lgrin,s t,l,,,,..,.I