The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-02-02
COURT DECISIONS.
synopsis of Opinions of the Commission oil
Appeals, Galveston Term, 1883.

| county. One Schulter made ms wli' pe'
queathing his property TO John Howard
Bever K. Davis and Julius Frederick, o.
G. siveston, and to the survivor of them
"for certain uses and purposes therein ex
pressed. They were appointed executors
and the will provided that they should ad
minister the estate Independently of the
courts. The will was probated in 1875
Davis and Frederick renouncing the trust
Howard qualified, and sold the land to
Mays. Howard afterwards dying, appel
liant was appointed administrative, with tht
| viii OF Schulter's estate annexed. She
bnngs suit as such to recover the land
Held, the trust was created upon the per
sonal confidence reposed in Davis, Fred
erick and Howard, and the only contin
gency upon which ls& mum
Der than the wh0o could act
was the death OF some Otithem. Under the
circumstances, Howard could not make the
sale. The case of johnson VS.. Bowden, A.
Tex, gu, is criticised and its correctness
questioned. The trustees only had author
| ity to manage and control the property 10
order to secure an income to remain and
accumulate in their hands until the time
named for division of the original property,
with the income accumulated, emong the
legatees. The court enormously charged
the jury that, il the sale was made for the
purpose of paying Off the debts OF the
estate, or TO secure an income from the
property, TO find for Mayes, rs there was no
evidence of any debts against the estate )
besides, the evidence shows that the land
was sold because il did not bring in a rev.
enue. Held further, there was no authority
conferred empowering the trustee to sell any
of the property OF the estate. The 1udg-
ment ought to be reversed and remanded.
Watts, j.
Watson VS.. Houston e. Texas Central
railway; from Harris county. Appellant
while brakeman on'appellee's road, lost his
two fingers while coupling cars, on account
OF an alleged defective draw head Appel
lee plead contrlbutory negligence, etc.
Herein are given only the abstract holdings
necessary TO an underst inuinE OF the opin.
ion. l. II the usage of the company when
Il car was disabled WAS to chalk it 'out OF
repair" and side.traCk it TO be removed to
the repair shops, and when thus chalked
and side-tracked, it was the brakeman
duty to couple them for removal, emf
ployes accepting employment do SO subject
to such usage, unless IL was concealed from
him. 2. Inc burden of establishing such
usage is upon the company, and when eS-
tablished, the burden is upon the employe
to show conceament. 8. Ii the usage Of
the company in giving notice to employees
when cars were disabled consisted in mark
ing such cars tout of repair" and side-track-
ing them for removal, appellant having en-
gagged in the service, is subject to these reg
ulations. 4. Appellant cannot be held 10
notice il the car was Chalked "out of repair
and side-tracked when the accident oc
CURED. The Judgment ought TO be re
yersed and remanded. Watts, Vi.
The Meader Co., VS.. Arringdale; from
Walker county. The execution having
been returned and filed in the court, the
motion to auash, filed afterwards, came
too late; Il Tex, 50S) A claimant cannot
| assert the invalidity of an execution which
is against third party unless it is void
| (22 Tex, 707; Is Tex, 2O5; n Tex. SOY. AL
execution issued on a dormant Judgment /.
not void but voidable only; (40 Tex, 15S
| 50 Tex, 1907. a motion to quash can only
| reach such defects as are apparent on th,
| face of tho execution and record upon which
| the questions therein contained arise
| Where it is matter of law, in the absence
| of a statement of facts, no presumption IN
| favor of the Judgment will be presumed
| 'rhe better practice in raising such ques
tions is by direct pleading, such as by ex
| ceptiors in the nature OF demurrer to
| the suflicicncy of the execution il the de-
feet repders it void, or by making an issue
of fact MS to the validity OF the execution
against third parties. The judgment ought
to be reversed and rem9 lii WSixor, p J.
pppe liant sued appellee in Jefferson couiii.
ty, alleging her residence in Grayson coun-
ty. Citation issued to Grayson county and
was returned as follows; . "and
executed on the - day of - by de.
livering to the within named defendant,
-, true copy of this citation" Judg-
ment by default was rendered upon this
service, aud Jones brings it up by writ of
error. Held, the law being substantially
the same, the former decisions control this
case, and the delivery to defendant of a
copy of the citation is not sufficient where
the law requires q service of the citation
and a copy of plaintiffs petition; Ql Tex,
256; 10 Tex, 256; 4 Tex, 309) The service
appearing from the record to be defective,
defendant need not necessarily appear in
the lower court, but can bring
it up by writ of error. The citation
and the shcriff's return being before the
court for the better reason the mere con-
struction in law as to the validity of the SER
vice cannot be regarded; as Tex, 486
The Judgment onght to be reversed and re.
manded. Walker. p. ].
Halt, Weis u Co. vs. Welder; from Re-
fusio county. The same rule applies
where the Judge tries case without a Jury
as to its finding as to the verdict of Jury,
and unless the finding of the court Is with
out sufficient evidence to support verdict,
if found by q jury, 1t will not be reversed;
al Tex, 2S3). IL will not be disturbed
without manfestlv wrong (26 Tex, 4SS).
1t is not sufficient that the evidence would
admit different conclusion from that ar
rived at by the court, nor that some of the
court $ reasons NAV not be tenable in or
der to disturb the Judgment on the ques-
ton oil fraud. Held such frauds claimed
was not proven, and it cannot be presumed,
but must ne clearly proven and if the testi.
mony conflict, the finding will not be dis
turbed; US Tex, $50; Ibid, 732; % Tex,
$685. The Judgment ought to be af-
Gibson Adams VS.. Mullican; from Free.
stone county. A single question is pre-
scnted-does there appear such privity 0;
contract or estate 10 entities the landlord to
distress warrant for debt due by the
tenant against the property of the sub-ten.
ant on the premises, consisting in produce
| raised by the sub.tenant on the portion of
the premises rented by the tenant to him.
Held, no such privity appears between the
landlord and the subtenant, arising merely
from That relation as subjects the sub-ten-
! ant to liability for the tenants debt to the
landlord, there being neither privity of
contract nor estate between them: [ray-
ior's Landlord and Tenant, (sec. 16; A Tex,
49, A lease which contains no covenant
or stipulation against suo.letting the prem.
| Uses does not prevent tenant from sub
letting them, in whole or in part, for any
purpose not inconsistent with the original
lease, or he may assign the entire lease.
| but the sub.tenant then becomes the ten.