The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-20


o receive submis on Of the case,
nd il upon IN examination
4 the record, no error fundamental in its
haracter is perceived, to affirm the judg-
nent without further inquiry into the
merits OF the appeal. In all cases submit
ed to the judge on the law and the facts,
he party desiring TO appeal in case the de-
'ision should be against him, should IN
,very instance, as a predicate Tor SPECIFIC
of error, formally in writing,
before the Judgment of the court is an
request the Judge to state in
writing. and file in the cause. the con-
illusions OF fact, found by him, separately
from the conclusions OF law. Rule q as
Affirmed.
Shearn and wife VS.. Davis; from Coryell
county. Opinion by Walker, p, j., adopted.
Suit tor damages for breach OF general war.
ranty OF title on certain tract OF land
sold to appellee as the separate property Of
the wife; that he was sued for and evicted
from S5i acres of the same; that he paid in
said suit 500 attorneys fees and S73 costs
otsuit. Judgment was rendered for the
value of the land with interest f1om the
date OF sale and purchase, and for attorneys
fees and costs as sued for. Held: The
measure of damages upon a broken cove
nant OF warranty OF title to land
after an eviction Of the vendee by
superior title maintained against the vendee
is the purchase money with interest. The
extension of this rule to include such at
torneys fees was expressly denied bv our
supreme court in Turner VS.. Miller az Tex
4lS). The right to recover the costs of the
suit to evict the vendee stands upon the
same reason rs does that to recover reason
able attorneys fees and 1t must be held
that neither of them are recoverable. The
court did not err in rendering judgment
for plaintiff as assigned because the petit
tiOn alleged the fraud complained Of, for
the purpose of c)nferring jurisdiction on
the district court of Coryell county, and
fraud, The plea of defendant was not
sworn to and might have been properly
treated as a nullity, Taylor VS.. Hall, 20
Tex. 2l5). Judgment reversed and rendered
for appellees for S449. 40 with legal interest
from September Sth 1877. Reversed AMI
rendered.
Muller VS.. REVERE from McLennan coun-
ty. Opinion by Walker p. j. adopted.
Clinnt by appellant against appellee for
$3.50 monies collected on two lie insurance
policies upon appellants deceased husband
In favor OF appellant. The collection OF the
money was admitted, appellee however
plead that at the death OF appellants hus.
band he was indebted to appellee in the
sum of $l7SiS3 for merchandise sold him.
That appellee had started him in business
furnishing him drugs, etc, on which he
took deed of trust. Upon her husband
death appellant desiring to continue his
business on the same terms, undertook and
promised appellee in consideration of tu-
ture sales to her own credit, to pay her de-
ceased husbands debt, out of the proceeds
Of the life insurance polio es, which was
accepted by appellee. That continued sales
were made by appellants until all the sum
run out and appellant owed appellee bal.
anCe. Judgment for appellee tor such bal
ance. Held. Appellants promised in the
transaction and contracts between them
embraced q sufficient consideration to sup
port her verbal promise to pay her deceased
husbands debt, and that 1t was not there.
fore within the statute of frauds. This
case comes within the rule laid down in
Roberts on the Statute of Frauds $50. A
parol promise to pay the debt of another
which still subsist in iull force against him,
in favor of another, may be binding upon
such promise. Affirmed.
tlWilson w. Helms ct al. from Collin
county. Opinion by Stayton, /.
1. Because advancements may have been
made TO each of the children, during the
life Of the mother, out of community prom.
erty, does not confer upon the father any
interest in the share of the comm unity es.
tate vesting in the children on their moth.
er's death.
2. In 80 far as the father gave of his own
estate in community property, the children
cannot be called upon to compensate him
therefor by surrendering to him that which
they inherited from their mother, upon
her death, as in so far as the property
which may have been advanced was Of the
community estate Of the mother, her chill
dren take that purely as an advancement
without liability to account, except as be-
tween themselves,
3. The father can have children account
to him in partition for community property
conveyed to them after the death of theiI
mother, unless by sale upon consideration
thus protecting purchasers from him, and
himself against claims which children
might set up on account of community
property disposed of by him. The cour,
therefore did not err in sustaining
exceptions to the answer in SC
far as the same sought to sci
US advancements made to the
children, during the life OF the wife, out o
the community property. 4. Where tb,
evidence shows that the land in controvers,
was community properly of James Wilson
father Of appellees, and their deceased
mother, whose interest they seek to re
cover; that at the mothers death there wa,
an outstanding note, in favor of one Bell
tor $1,000 for which the community wa,
liable; that this Indebtedness arose by not,
fW: b. Wilson, one OF the appellees upor
which James Wilson, his father, WIS surety
that large part of The money which va,
paid to the father for the land in con,ro
yersy was used to make u pay ment on ,hs
note; that there was some community in
debtedness; that there was OF her Ii nd be
longing to the community which has no
been sold. Held, /: Heirs take communi,,
property charged with the debts against II
and II 1t be sold by the survivor to pay com
munity debts against 1t, or so reimputs,
the survivor for separate means used /,
discharge OF such debts, then the pnrchsso
will be prot ,ct d in his purchase. (Bm
son VS.. Burleson, 2S Texas, 1888; johnson "a
Harrison, As Texas, 257; Wenar w, Sientye
As Texas, 1884; Jones Va. Jone.
10 Texas, l43). |. A stat
Of facts existed authorizing jaime
Wilson to sell community property, and
purchaser who In good faith buys. unde
such circumstances shall be protected i,
his mn rchns % IN st claims NJ Tho ha;.. 90,