The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1883-02-08

WHlhff county lnt fAfNunVH HHNlhN
boen reformed and filed IN the o1uh, tro
lao late. "A Tex JfSj. 4 damant cannot
assert the inyaidity ~ an execution which
IL AGAINST thlrd parry unless " IL yOidi
.22 Tex, 7U7, 10 .fex,, 90, n IuyD 5G. An
pxecuiiO. Issued on u dormant Judgment IL
not void, "but vOdnble onlY 90 loxp lbS;
" Tex, 1901. A fnOiion ~ quasi can only
reach such defects "a Me apparent on the
face NJ tho execution and record upon which
the questions therein contained arise
Where IL Ia matter OF law, w the absence
of n statement Of facts, no presumption IN
favor OF the judgment Will be presumed
The better practice In raising such ques-
tons IS by direct pleading, such as by eX-
ceptiors in the nature ola demurrer to
the sufIicioncy of the execution IT the de-
feet renders II void, or by making an issue
of fact as to the validity OF the execution
against third parties. The judgment ought
to he reversed and remanded. Walker, p. J.
Jones VS.. Watson; from Jefferson county
Appellant sued appellee in Jefferson coun-
~, alleging her residence in Grayson ocun,
ty. Citation issued to Grayson county and
executed on the - day of - by de-
liyering to the within named defendant,
-, true copy of this citation" Judg.
ment by default was rendered upon this
service, and 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 a service OF he citation
and copy of plaintiffs petition; III Tex,
$50; 10 Tex, 25G; 4 Tex, 3O9) 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 sherifi'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, 466')
The judgment onght to be reversed and re-
manded. Walker. p. j.
Half. Weis d Co. w. Welder; from Re-
fusio county. The same rule applies
where the Judge tries case without q 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 jury, it will not be reversed;
al Tex, 25S). 1t will not be disturbed
without man,festly wrong; (26 Tex, 1881
| is not sufficient that the evidence ,woulc
admit different conclusion from That ar
rived at by the court, nor that some OF the
courts reasons may not be tenable, in Or
der TO disturb the judgment or. the cues,
ton o, fraud. Held such frauds claimed
was not proven, and it cannot be presumed,
but'must ue clearly proven, and if the testi-
mony conflict, the finding Will not be dis
tnrbed; (2S Tex, $50; Ibid, 1872; % Tex,
S35). The judgment ought to be al
tirmed. Walker, p. j,
stone county. A single question is pre-
s;nted--does there appear such prlyity, OF
contract or estate as entities tue landlord 10
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.tenan5 on the portion OF
the premises rented by the tenant to him.
Held, no such privity appears between the
landlord and the sub.tenant, arising merely
from that relation as subjects the sub-ten-
ant to liability for the tenants debt to the
landlord, there being neither prlvity OF
contract nor estate between them ray
lor's Landlord aHd Tenant, (sec. 10; Al Tex,
4l5.) A lease which contains no covenant
or stipulation against sub-ietting the prem
ises does not prevent tenant from SUD-
letting them in whole or in part, Tor any
purpose not inconsistent with the original
lease, or he may assign the entire lease.
but the sub. tenant then becomes the ten
ant of his lessee and not of the original
landlord; Taylor, Landlord and Tenant, p.
113) The judgment ought to be affirmed.
Walker, 81.
Cheyeral VS., Mccormick from Harris
county. It. is not question here OF defect.
i've execution of q power, but an entire
want of author ty, as Brashear was attempt
ing to execute the deed of trust by virtue
of an instrument which did not invest him
with any authority whatever to make the
sale. The court did not err in excluding
Murphy's testimony tending to show with
out regard to the hour of writing, that he
intended to appoint Brashear substitute
trns,ree. The written instrument could
not be DESTROYED in that way by oral evil
dence. Appellee claimed by deed from
Michael Mccormick, his iather, Tor the
land herein, which was recorded the day
after the execution, and recited consider
alton OF SIS and general warranty. APP
pellant holds this should be construed as
gift. and the court should have admitted
evidence to show that Michael Mccormick
did in 1872 ratify the sale made by Brashear
in 1871. Held, AIichael McCormicA's inter
est in the land passed to and duly vested in
appellee by apparent owners title, and in
such case the grantor could not ratlfy the
subsequent illegal sale made by Brashear,
and defeat the conveyance to appellee.
Judgment should be affirmed. Watts, ].
Lsines eli al vs. Perryman; from Liberty
county. The certified copy OF the deed
from p. to Il. was never Acknowledged or
recorded, was therefore not OF record in the
clerks office, and copy under his hand
and seal would not be admissible, and was
properly excluded; Revised Statutes, 1852
and 2257). A defendant pleading mot
guilty" may put in evidence any lawful de.
tense to the action, except the statute OF
limitations; (Revised Statutes, article 1853,
and, under such plea, defendant is entitled
to show. il possible, title in himself; GIG
Tex. 33); and herein there is no distinc,
ton between legal and equitable titles; Is
Tex, GO; 9 Tex, 1881. The effect of the
in evidence of the judgment
the Perryman conveyance to
Richardson being the same as II the iudg.
ment itself was before the court, whether
appellant was party to it or not, the orisi-
nal being admissible, the copy was also.
There being no question as to the bona fide
original conveyance from Perryman TO
and that it was for valuable
the court did not err in re-
fusing 20 charge on the issue as to fraud in
substituting such judgment The Iudg-
ment ought to be affirmed. Watts, J.