The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-07

would nave exempted Ln6 property.
which was seized and sold from forced
sale for debt. Judgment affirmed and
adopted.-Opinion by Winkler, j.
E. and A.Zipps VS.. Kerr, Machon
IL Co.; from McLennan county-Suit
on a note given for lumber and ma
terial to improve and repair home
stead, and acknowledging the sum of
$129.S6 as a lien on the property.
Judgment by default was taken
against defendant. Held: A fatal OBJ
| lection to the petition is that it does
not allege that the contract was re-
| corded. Judgment reversed and cause
remanded.-OpiHion by Delaney, j.
Eliza E. Smith, plaintiff, VS.. w. E.
IL S. E. Duke. Held: AS the note was
the basis of the suit and copied into
the petition there is no objectition to
its admission in evidence. There is
no variance between the description
of the land as given in the note and
that given in the petition, as either
description will apply with equal GER
tainty to the same tract Of land. The
decree merely ascertained and de-
clared the amount of the debt, and
subjects the land to it's payment.
Plaintiff was necessary part to the
proceeding, otherwise her interest on
the land could not have been diverted.
Judgment affirmed-Opinion by
Watts, j.
-, ID. Wadley VS.. II. G. johnson;
from Hood county. - Wadley was
sued as maker and McCamant aS en-
dorser on a note. Judgment was
against Wadley and foreclosure on
land decreed, but the judgment failed
to dispose of McCamant, who had ac-
cepted service. The citation was is
sued to Wadley, directed "to the sher-
if or any constable of Hood county,"
and was served by the sheriff of Hill
county. McCamant's name was not
mentioned in the writ. Held, The
judgment, to be final, must dispose of
the whole matter in controversy as to
ali the parties, and that Il citation
that does not state the names of all
the defendants to the suit will not
support Il judgment by default when
tested on appeal or writ of error.
Writ of error is dismissed. Adopted.
Opinion by Watts, j.
Dougherty ct al VS.. Nincuheller;
from Eastland county. Judgment
atfirmed.-Opinions by Watts, j..
! Abbacock VS.. St.!Louis Type Foun-
dry; from Bexar county. Judgment
atfirmed.-Opinion by Walker, j.
Saml. Doughty VS.. H. Ii. Hall ct al;
from Coryell county.-Held, There
being neither an appeal bond, nor the
affidavit Of inability to give it, the
appeal was in no sense consummated.
Judgment atlirmed.-Opinion by
Walker, j.
Saml. Doughty VS.. Eliza Hall ct al;
from Coryel county.-Held, eagle,
in selling his interest in the pre-
emption to Shackelford and removing
to Arkansas, thereby abandoned all
right and claim to the same; and us
Shaekelford then owned and occupied
another homestead he acquired no
right to the pre-emptiOn. Upon his
pretended purchase and the removal
OF eagle from the state, the pre-
emption right was forfeited, and the
land became umappropriated public
domain, subject to settlement, To-
cation and survey. The patent to
appelleeS hay ing been issued on an
abandoned pre-emption and without
authority OF law, is invalid. The
Judgment is reversed and this court
DEGREES that the patent to appellee be
cancelled and held for nought; that
appellant have possession of the
land, that Il writ of restitution issue
in his behalf, and that he be confirmed
in possession. Adopted.-Opinion
by Watts, j.
Tilman Weaver VS.. a. j. Miner
ct al from LampaSas county-Ac-
ton of trespass to try title against
Miner, to recover two lots in Lam
pas;ts. Answer Of general denial and
three years limitation. Judgment
was for appellees. The court con-
cludeS that the finding of the court
below is against and not supported
by the evidence, and that the judg-
ment ought to be reversed but us it
appears the full merits OF the case
are not shown by the record, and per-
haps were not submitted to the court |
below the cause should be remanded.
Adopted. Opinion by Watts, j.
Mrs. M. ID. Thompson VS. &. e. Hines
ct al from McLennan county. Suit
by defendants in error Hines ct al to
recover 480 acres of land patented to
Abraham Blunt. Held !: Unless |
facts or circumstances exist which
tend to rebut the inference that a
written contract or obligation was de-
livered to the obligee, its possession
by the latter, or by one claiming
through or under prima facie. inn
plies a delivery OF it by
the obligator or grantor; and posses
sion OF it by the obligee or grantee,
or their assigns, is prima facie evil
dence of ownership. Judgment af-
firmed. Adopted. By Walker, j.
o. S. Eahols ct. al VS.. B. d. Nc
Kie ct. al, from Navarro county. Ap-
pellees brought this action of treSpass
to try title against appellants to re-
cover land claimed under the Rachel
Seach grant. Appellants claimed un-
der the Elliott grant. In their trial
amendment appellants denied that
the land described in appellee's petit
ton was embraced in the Seach lea
que, under which appellees claimed.
Held: AS plea Of estopel, appel
lants answer. and trial was fatally
defective. Burden of proof is on
plaintiff to establish title to the par
ticular land sued for. There is no
privity shown to constitute an es-
topel of record Judgment reversed
and cause remanded. Adopted. OPP
inion by Watts, j.
Houston and Texas Central railroad
VS.. c. S. Watson & Bro, from Lime
stone county. Submitted on briefs
of both parties.