The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-25
r1n Of law and will not be enforced,
| D.s,a3G Reversed and remanded. '
synop.is Of Opinions OF tho supreme Court,
Austin, Term 1889.

Austin, Term 1889
g. DculsCh & Co., vs.. l.. W. Walton;appcnI
rOm Baxar county. When tho wife, with.
out being ioncd by thc husband, had exc.
ruful a deed rCcdyirg therefor consider
uon deemed valuable In law, il il he adfpit'
ted that such a deed was not sufficient to-
uass titlc, IL does not follow that the h1''
band could not recognize the consideration
paid to the wife ~ u sGlliG'ent and valuable
one for his subsequent conveyance IN lirh
OF the wite's prior one. Affirmed. Bon
ner, J.
II. Green; appeal from BeXar county. NJ
the original grantee, conveyed tract Of
land by deed absolute upon It's face TO IL,
reCiting payment of $4,000, rs the purchase
money. Il. subsequently, by deed, absolute
upon the face for 81 900 recited as pail, con-
yeyed to the grantee, under whom the APP
pellee held. The appellants claim, under
conveyance from N. made twenty year,
subsequent TO his deed 70 r who r"G'te'
the consideration as Of $1,000, as
named. This deed reCited the sale
by n. to r., and from II, TO appellee 5
grantor, and that X. had executed his notes
to n. for the purchase money; but held the
same until he sold and conveyed the same
| land to g., the g-antor of appellee, for an
\ additional consideration over the SAID sum
of the notes, and delivered the said notes to
! u with the deed of conveyance, that the
! said G. might know that n. held lien on
| the land. This deed from n. to appellants
also recited that the notes executed to n by
| Il. had never been paid and transferred
| the same, with all the rights that n. had
| therein, to appellants, who went into pos
session of the land. Snit brought by APP
pelees to recover the land against the APP
pelants, who pleaded not guilty. Appel
| tants proposed to prove by n. the consider
alton for which the notes FROM Il. to N.
we're executed, that they had never been
| paid and that appe.lee's grantor had notice
Of such facts at the time he purchased from
which was excluded. Held that the court
did not err in excluding this evidence
but if appellants desired to enforce
any supposed right they might
have had under liens covered IN the notes,
they should have set up their liens ior I'M
paid purchase money. They were not en-
titled to enforce any sucn claim under
plea of not guilty on a suit OF trespasss to
try title. The title conveyed by N. to r.,
and under which appellees held, Invested
him OF all possessory right Whatever, and
the notes in the hands OF appellants was no
defense to the action brought by appeliees.
Affirmed. Stayton, j.
A. A. Kilso VS.. p 4. Adams; from Uvalde
Suit filed August s. 1874; cause continued
FOR service January s, 1879 May II, 1879,
cause continued by consent; September -,
1873, cause continued upon an agreement
to submit to arbitration the matter Ill con-
troyeray, which agreement was signed by
Kiso as plaintiff and Adams as deiendant.
January II, 1876, defendant filed plea to
the jurisdiction, because not living in the
cOuHty when suit was brought. Held, APP
h. b,p lIrlu nrDrpss
and we think that his consent to general
continuance, and expressly his agreement
TO arbi ration was q submission to the
jurisdiction ofthe court. When the parties
to a suit consent 10 Il continuance they Dy
that act agree to try the cause before that
court, but not at that time. Reversed and
remanded. Delaney, c. Adopted by
supreme court.
Sicliles ct al. VS., J. Il. Largent; from Col.
lin county. fla suit is brought in which
the executrix, as such, becomes party,
and the suit 80 brought was so fatallydefect
i've as to parties that no cause OF eccon We
therein presented, it would certainly folio"
that the former Judgment rendered against
hese plaintiffs in the same capacity would
| in no way affect the right of the eXecutriX
| 10 maintain suit for the land. Such Il
iudgment would not, if that doctrine was
true. be res adjudlcNta az to the eXecutrlX,
ibsence of contrary proof the property sued
for must be considered as community,
which the wife was entitled TO one-hall,
subject to payment OF community dents.
Reversed and remanded. Watts, C.
Adopted by supreme court.
w. f. Edmondson VS.. James Conner and
wife; error from Dallas county. Under the
act of February IA, 1860, entitled, To
prevent Judgments from becoming dor
'uaut ana to create and preserve payment
| liens" Judgment rendered on the 23d OF
February 1860, did not operate AS a lien
wi bout registration. Affirmed. Delaney
8. Adopted by supreme court.
Bladder ct al. VS.. Jose ct al. from Lamar
| county. 1t does not rest upon the eIecu-
tive creditor TO establish that the husband
wns insolyent in order 10 entitle him to
sue the interest of the community in tn ,
land in satisfaction of bis debt, and IN
husband, to the prejudice of creditor, e
could not have given Jnucvmiuuulty money
which went TO pay for the land to his wife.
As no lien attached TO the land until the
levy of the execution, the property then be
ing registered rs her separate property, he
would not have been precluded from show
my tnat her husband gave to her the com.
munity monec, il such was the fact, ana
mat at the time Of such gift the husband
mad let in his hands ample properly SUD
iect to execution TO pay all his debts. Al
firmed. Stayton, a.
ihurber Il Co. VS.. James Connor; from
rarrant county, a term of years has sucn
an estate IN lands as would sustain the
common law action of eiectment,
and, in fact, the fictitious cause OF
action which was the foundation
OF that proceeding was substantially what
the present one is in reality. Under our
statute Of iorcible entry and detainer the
right of possession is the only matter 10
issue, and the plaintiff cannot recover rents
even, which was one Of the grounds in this
case, but which under Cur statutes can be
recovered in trespass TO true title: Plaintiff
sued for possession and rents, and the dis
trict court, therefore, had jurisdiction. Re
yersed and remanded. Bonner, a. !.
DIVER VS.. Continental Insurance com.
pany; from Washington county. Dryer
sued appellee m the court below on a
pohcy assigned to him. Appellee
offered as defense fraudulent burning
on the part Of appellant. The
court charged the jury that the burden. Of
proof was upon appellee, 20 show the exist
enco aud contents Of the policy; the value
Of the goods lost; that the loss was not the
fault OF the insured, nor the result OF dis
honesty on his part, or the part OF the
assignee or agency. Held, the charge, as
given, was on instruction, in effect, for the
Jury 90 ind for the defense. unless the evil
lence showed no intentional burning on
the part Of the insurer, his assignee or
agency, which efiectually instructed pre-
sumption which the law, as a matter Of fact,
docs not inlglge. Reversed and remsnded.
Stayton, q.
Brooke W. Clarke; from Grayspn county.
Clarkes by next friend, sued Brooke Tor
damage, through malpractice in delivery at
birth. Brooke was an accoucheur, and,
ov reason Of unskillful practice, In
iured plaintiffs geuerative organs for
lie. Plaintiff recovered damages. Motion
% abafe suit because Of death Of appellant
9verrul-d. Appeal dismissed because
suit was brought BY next friend and not by
edara an. Rshesring granted. Heid, the
iIiurias inflicted being snch as siil pro
que mental and physical pain throughout
bis entire life, the court cannot hold the
amount awarded $3.50 excessive a.
actual damages An objection 70 a charge