The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-11-24
COMMISSION OF APPEALS.
synopsis of Opinions Of the Commission OF
Appeals, Tyler Term. 1889.


Appeals, Tyler Term. 1889.
Reagan w. Clark ct al; from Falls
county. A certificate being located on land
and returned with the field notes to the
land Office, the owner Withdrawing the
same does 50 at the risk OF having the lana
located on by another. Where party de-
string to locate the land located such GER
tifcate on the land and caused 1t to be sur
veyed and patented, in suit between the
parties brought by the owner of the elder
survey is not error for the court to refuse
TO charge that the party making the second
survey was bound TO require of the party
owning the first certificate II 1t was aban-
doued. Where in an action OF trespass To
try title the plaintiff RECEIVERS u part of the
land and the defendants recover the resi-
due, the plaintiff can sue Tor the part
not recovered in mis- second suit, but the
defendants cannot roconvene and set up
their right to the part recovered in the first
suit Affirmed. Walker, p.j
Green OF al. vs.. Raymond ct al. from
Travis county, A bond given to secure the
fnithiul administration Of an estate protects
creditors interested in such administration
and secures them, and they can maintain an
action thereon for waste or conversion OF
the property. The press, type, cases belong
ing 10 the deceased, who ran q newspaper
during his life, are exempt from forced SALE
and do not constitute any part Of the es.
tate, but belong to the surviving wife and
minor children. Mrs. Raymond had a
right to reserve q reasonable amount as an
equivalent for the one years provisions not
found in kind. The burden was upon her
10 show that the amount was reasonable.
IL she and her minor children had not sufli-
cient means OF support, they were entitled
10 the allowance; her ability to keep a
clearinghouse was not involved. Affirmed.
Watts, j.
Herren VS.. Dashell; from Brown county.
When a material allegation In the petition
IL admitted In the answer, 1T is not necessary
to adduce the evidence In support of such
allegation. A misdescription i'll deed in
order to constitute u variance, must b. such
as TO mislead or surprise the adverse party.
The appellant having admitted in his ar
swer the material part of appellee's basis
for this suit. and there being no contra
dictOry evidence, the court might have cor
rectly charged the jury TO find for appel
lees. Affirmed. Watts, ].
McLain VS.. Fort; from Ellis county. Fort
relying, as the has basis of his suit, upon Il
Judgment only giving him oneiourth OF the
cotton in controversy, cannot claim any
upon Forts statement that he, Fort, was
only to get one.fourth Of tho cotton, and
having made advances to b. and L.. upon
these statements of Is. and l. Fort is thereby
precluded from claiming as against McLain
any greater right than one-tourth. AT
iirmed. Watts, ].
League ct al. vs. Rogan; from San Saba
county. The only question is as to the ad-
instability in evidence of a copy of the
conveyance from Campbell to League. The
objection to admitting 1t being that it was
not recorded in the county where the land
is situated. Appellants claim that the
original was an archive in the land office,
and under the statute certified copy of it
would be admissible. Held the certified
copy would only BIO admissible under the
statute where the original would be. The
commissioner not having 0bcially acted
upon the headlight certificate given to
Campbell as the assignee of Morris, the
original is not admissible, and therefore
the copy was not. Affirmed. Watts, /.
Burgetrom VS.. the State of Texas from
Bexar county. Suit by appellee against
appellant as the surviving wife of the hus-
band who was security on the bond of an
administrator of an escheated estate who
had left the state. Held, in order that the
state may recover against appellant II is
essentially necessary that the Jury should
be satisfied that its conditions have been
broken. Proceedings of this character are
more in rem than IN personam and judg.
ment should not DO rendered against ap-
pellec in on individual capacity, but that
satisfaction be had out of the community
estate in the hands OF the surviving wife,
Reversed AMI remanded. Walker, y |.
Missouri Pacific railroad vs.. Harris; from
Tarrant county. If the provisions of tho
contract are not unreasonably against pub
lie policy, 1t is not material in what form OF
action the appellee might claim the dam
ages for delay. The provisions would be
available as defense, whether the suit be
upon the contract or for damages, tx dele.
tn, would be wholly immaterial. The claim
arises out of the shipment, concerning
which the contract was made, and that con.
tract could BIO assisted by either party
Rehearing refused. Watts, j.