The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-01-26
COURT DECISIONS.

Term, 1881.
Miller VS.. Marx Il Kempner; fro n Cald-
well county. When amutual mistake mas
been made in a written contract or agree
ment, upon proper pleading, parol evidence
will be admitted to show such mistake,
and, upon satisfactory proof, courts OF
equity will conform the writing TO the in
tention of the paroles, and make IL speak
that intention. The institution Oft ground
less'suit. though knowingly done and with
intent to harass, is not actionable Tor
damages The award of costs al
most is all that can be recovered. credi-
tor cannot, by wrongful act vary the sltua,,
ton, right or remedy Of the guarantor, ana
still hold him bound for the debt OF the
principal. But, to discharge the s9arantor,
the acts of the creditor must be such rs are
not sanctioned by law. Enforcing the BANK
rnptcy of the principal through proper
channels is not wrongful act, and ana not
release the guarmtor-appellant, Affirmed
III. T.C.R.R. Co. VS.. Shaw, ct all from
Collin county This was an action by MRS;
s. in her own behalf and as next irlend ana
natural guardian of her minor children,
Tor damages for negligent killing
of X. s., husband of Mrs D, anu
father of the minors Objection urged
that no special guardian was, appointed
for the minors. Held, that such sIiliaru '."i
was not necessary. The mother could pros,
ecute the litigation to their use ana
benefit. Rev. Stat, Arts. 1908, 2JWl. See,
also, Rev. Stats, Final Title, Secs. 0, =. a
defendant witness having testified that the
track was in good condition ut the Tune oil
the work, the court properly permitted the
plaintiff to ask him ii he, at certain tlne
and place, and in the presence OF certain
persons, had not made contradictory STATE
mcnts, as basis for impeachment IN
suit for actual damages the jury Is author
lied to give such damages as they may
think proportional to the injur sustained
Affirmed Watts,c
Bennett rs. Burris; from Bell county.
The controversy in this case was over the
true location Of the boundary lines OF 4 sur
vey of $40 acres the dispute mainly beng
as to what point on the line OF another sur
yey, If at any, Il prolonged line starting
rom given point would strike. The eyi-
dence was conflicting, and its bearing upon
the case was committed properly to the
jury. When the court has en- bodied IN the
main charge the substance OF charges
asked it is not error to refuse the latter
Affirmed Watts, c.
Cameron VS.. Thurmond; from Dallas
court on the law and facts, November 81
1870 Judgment was entered December -
1879, nuhc pro tune, as rendered December
G. 1879, the last day OF the term. This pro-
ceeding was in direct violation of District
Court rule No. IS, which provides in sub
stance, that cases so submitted shall be de-
termined at least two days before the end
ofthe term, if it has been tried aud submit
ted one day before that time, unless contin-
ued by the consent of parties, 1t was
averred in substance, that though 1t APP
pears from the date of the deeds and other
papers that the land was acquired during
the marriage of the father and mother of
plaintiff, 1t was in fact the separate property
of the father, acquired by his separate
means. This was sufficient to let in proof
that the land was acquired by the
father by exchange of his head-right
and other separate property. The deed OF
one tenant in common to specific portion
of the common property is not void, and
will not be supposed to prejudice the rights
of co-tenants, but will be respected as far as
il can consistently with the rights OF others.
When parties enter into compromise or
family agrecWNt to avoid litigating
whether one or the other of them is entitled
to certain property, such agreement will
not be set aside, though il eventually APP
entitled to nothing. But the parties agree
ing must act in good faith, without conceal.
ment, Misrepresentation or fraud. Re
vcrsed and remanded. Quinan, c.
Runge Il Co. VS.. Wid;lrom BeXar county.
II lisa general rule that voluntary convey
ancc OF lands connot be set aside except by
creditors who have reduced their debts to
Judgment, or who have acquired lien
upon the land. The issue was whether &,
IL Co. We're indebted to plaintiffs, and
whether the transfer of the lots to Mrs. W,
was voluntary conveyance to delraud
creditors, Until r. e Co. established the
debt of &. Il Co. to them, they could not
question the transfer, and the court erred
i'll permitting U severance of Mrs. W. and
Il. " Co., and allowing the case to proceed
against the former after 1t had
been continued ms to the lat
ter. All issues might be settled
in the same suit, but &, x Cos, indebted
ness should be established before deere,
against the land could he had. Mrs W
claiming that her husband had deserted hpl
and that his transfer to K. was in fraud, had
undoubted right TO intervene. The pur
chase OF property with aced IN name of the
wife is prima iaCie a purchase for the COM
munity, but ii may be shown that it wa,
intended rs o gift to the wife. That ia,
husband Is indebted will not preclude hin
from making Il gin to his wife, nor is suct
gift necessarily void as To the existing cred
itors, The rule Is, Inc must reserve ampl,
property to pay his debts. 4 yin ON th,
eve OF insolvency cannot be upheld Dis
positions taken without notice to ulvcrN
parties, are inadmissablc, Reversed an,
remanded, Quinan, G.
Williams n Go, vs.. Dennis ut al; from
Bell county. The right of intervention II
suit pending, is dependent upon lcay
given by the court, and notice to the par
ties. The mere filing OF u bond for the tria
of the right Of property, and affidavit, with
out an appearance did not constitute a
Intervention by d. in the pending litiga
ton. In order to give the County Cour
jurisdiction by appeal, motion far new triu
must be made In open court, at the teri
Of the Justices Court at which iudgmeu
was rendered, Motion for new trial Tile,
subsequent TO the adjournment ol the court
could not operate to make ID. ct AL parti,
To the original litigation Motion IN IA
County Court to dismiss Us. appeal Shout
have been sustained Reversed aud an
peal to the County Court dismissed. Quil
an, C.
d. &. i. J. umschcild vs.. Schucttc; lrot
Bcxal county. NJ, A, executed his note I
appellee Nov, /, 1873, due two wears nl ,
date M. a, died Dee r., iSs3, Willinr hi
property q NJ, his wife. \. A. admin
TRAITOR Joined by his wife executed a mo-
note iu place of the Old one. NJ. ALWAYS n
cogn1ed his claim as binding uvamst ia
estate, She died, making A. A. her exec,
tor under an independent will. which "A,