The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-01-25

and wife; from Harris county.-This
Is an appeal from judgment render
ed upon the following verdict: I'VE
the jury, find for plaintiffs in accord
ance with the deed of land by Bur.
nett, and that it embraces the triangu-
lar tract, as shown on the plat, and
that it is not part of the homestead y
Upon this verdict general judgment
was rendered for plaintiffs. Held, This
cause will be reversed because the
| Judgment is not supported by the YER
dict. Plaintiffs sought one of two
things: That the injunction sued
out be perpetuated and that the
land defendants are attempting
to occupy be declared a street
or if not declared street petitioners
pray for the land in their own right.
Held, further: The finding of the
| jury was not general finding for
plaintiffs. and if at all the judgment
must be founded upon the second
ground as prayed for, the boundaries
of the land as set forth in the petition
are irreconcilably conflicting, and as
the judgment should be confined to
the description of the premises as
given in the petition the judgment
cannot be rendered upon the verdict
found, and the judgment is reversed
and remanded.-Walker, p. j.
Gavey & McRea VS.. McWilliams;
from Polk county.-This suit was
brought by appellee against one Hun
ter as principal and appellants as
SuretieS upon certain contract exc
cuted by them with the United States
attorney general for the transporta-
ton of mail. Appellee bases her suit
upon breach of that contract, alleg-
ing that one of the mail carriers EN-
ployed by said Hunter had in Polk
county broken into and robbed the
mail of certain registered letter con-
tanning $500 which belonged to ap-
pellee. All the parties belong in Mont
gOmery county, and while no opinion
is directly expressed, the court hest
tate to say that the Polk county dis
trict court had jurisdiction of the
subject matter, and inasmuch as the
sureties alone appeal they pass that
question. Held, further, The ques-
ton for our determination is
this: Can this suit be main
tanned as against the Sureties? The
suit is evidently based on the contract
or else they have no rights at all, then,
us to the contract. The principal may
be liable to the appellee on considera-
tons of policy outside and beyond the
contract. The SuretieS' obligation ex-
tends to the contract strictiSSimi juTis,
and their obligation cannot be extend
ed zone jot" nor little beyond what is
nominated in the bond" 1t has been
strenuously denied that a mail con-
tractor is liable to private parties for
default of mail carrier, Ii Ohio, 1913;
2 Fosters rep, 252, Ebut the first of
these cases is questioned in LIST Amer
lean Leading Cases, p. 621. Both are
strongly disproved in IL Grattan, 230.
But us to the sureties, they are alone
liable to the parties with whom they
contract, and as TO them the judgment
ought to be reversed and the cause
remanded.
Warren VS.. Gray and wife; appeal
from Navarro county.-Where the
land in controversy can be identified
and definitely be ascertained if the
facts as stated in the petition are true,
a general demurrer does not lie and
it is sufficient that such identification
be made by reference to other surveys
and the map of the county. Partition
may be joined in the same proceeding
with trespass to try title in order to
determine the boundary between
the parties. A demurrer should not
be sustained to the petition which
is sufficient to establish the
boundary line between the parties.
A petition which AYERS a purchase
and conveyance from the owner of
the land, the recording of the deed
and the continued occupancy of the
land us homestead, is not obnoxious
to the exception that it shows that
plaintiff deraigns title from the sover-
eighty of the soil, and fails to connect
Herewith. The record shows no er-
ror; the evidence amply supports the
verdict. and the charge of the court is
not obnoxious. Affirmed.-Walker
Z. j.
Trinity county VS.. Polk county;
from Polk county.-By act of March
4, 1875, the legislature took from Trim
ity county and attached to Polk county
certain land; this suit was to recover
the pro rata of the Indebtedness of
appellant claimed to be due by the cit
liens Of the portion of land so at
tached, on the ground that Polk
same and refused to levy tax and
people therein to pay said amount, and
in the alternative appellant sued to
recover the territory and the taxes col
lected on the same, Held, Section No. l
of the act did not constitute condi-
ton precedent to the effect of the act.
| Upon the approval of the act the ter
| ritOry became part of Polk county
and there was no obligation on Polk
| county to pay said pro rata, and the
county court had no authority to levy
q tax to pay same. There was no ne
ceSsity shown for running an | max
ing the lines, but the court erred in
rendering judgment that execu ion
issue against Trinity county. ,'e-
formed.-Watts, J.
Lichenstein Bros. 81 Co., VS.. Lowen
TEN IL Elias; from Galveston coun-
| ty.-This is suit upon four prommisory
notes alleged to be due and an attach
ment was lived upon property alleged
to have been fraudulently conveyed
to Houston. Appellers claim that
they had compromised with appellants
and showed their receipt in full. APP
pellants claim that the receipt in full
was given by them through fraud up
on the part OF appellees. The only is
sue raised was as to fraudulent repre-.
sensations or not made by appellees
This question was fairly and properly
submitted to the jury by the charge OF
the court; they passed upon the evil
dence, which was conflicting. There
does not appear to be any error in
their finding and under repeated deci-
sions where their verdict is not clear
ly wrong it ought to be affirmed. Aft
grmed. Walker, p. j.
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