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

field. such cannot be- done, inc hlH'llp' /
ptoppf filed in this court contains VIC fer'
Vice NJ citation writ of efrof BOND shpWe'
mental assignments NJ error qul lho hFIoc
mani of eottnspl as above. Held, The 40.
IRENE court, Oi its own motion thOull
dismiss the appeal or writ Ot error, the ~
pr,I on lat to be dismissed. Walker, y. J,
Laughter Va. Secla; from Jackson county
A sheriiTs sale Ol the land ni minor, un-
der an execution issued under arllcle l?Oo
Revised statutes, 2l33, is void, conveying
no title 10 the purchaser and Is subject 10
collateral attack Were the above statute
otherwise construed, H. would practically
repeal the other important statutes, WIN
other provisions for the sale of the minors
nroperty for the payment of his just debts,
and for the protection OF his estate; (P's.
chnlps Digest, articles 3007-S-0. Revised
statutes, Al, chapters 1910, The judgment
ought 10 be affirmed. Deany,
Kennedy VS.. Baker; from Harris county. /,
The statue OF limitations may run against
plaintiff entitled to recovery against u
defendant chargeable rs trustee OF luhu
sufficient to constitute II constructive
trust, 2. But where the rule does not APP
nly reoIIjrir the trustee to openly repudi'
ate and bod adversely to the trust before
| the beginning of the running OF the stat
ntes against the cestui que trust. .; a
trust raised by implication OF law ~ wlthlh
| the operation OF the statute OF limitations
| In implied or constructive trusts, where IL
is sought, in order to maintain the remedy,
| to force upon defer dant that character OF
trust, equity courts Will apply me same
| limitation as provided Tor &C
lions at law. A. Where there is no allie.
CATION or proof OF fraud in the concealment
| from the party affected Of knowledge Oh
| the facts emitting him TO sue, the statute
| will not be suspended because oil Ignorance
on the part of plaintiff of the existence Of
| such facts in case OF cause OF actloh
against q instructive trustee; 70 hump.
| TENN 293) The mere failure on the part
of such constru tive trustee TO notiiy tne
| Cestui que trust as to facts open TO inquiry
| and entertainment by the use OF ordinary
diligence would not constitute fraud. D.
There must be prlvity between the parties
to be bound by the trust, where trustee
sells an estate to a purchaser WIN luii
notice of the trust, or if he transfer the es'
tate 10 volunteer without CONSIDERATION
the estate and the party to whom II comes
| la such mannerswill be bound by the trust
because there is both privity of estate and
person. The judgment ought to be ailirineu'
| WalEer, p. j.
The Hampstead r. L. B. & B. Association
vs.. Cochran; from Waller county Appel'
| lants rented stOre.house to one Ellison IN
| 1877. No specific term OF occupancy was
specified, and the rent was due monthly on
| on the first day oil each month. Wheh III
lisOn moved on the premises ne carried
with HIM mis- billiard tables. He stayed on
the premises, paid his rents as they fell due,
| until September, 1879, when he executed a
mortgage with power of sale, to other par
| ties on these tables. The mortgage, etc,
was recorded. Ellison occupied the premises
a year, paying his rent as II became due,
| but defaulted in his rent for Septem yer, "
tober and November, 1880. During the lat-
ter month the property was sold iinder the
mortgage and purchased by appellee. APP,
pelant sued out a distress warrant, ana
| levied it upon the tables. Held, as the ten
autcy was from one month to another, the
property was unincumbered at the time the
mortgage was given, aud the purchaser at
the mortgage sale had superior right 10 the
property, The Judgment ought to be al
frmed. Watts, O,
| Walker county, A plaintiff, with the bur-
| den of proof upon HIM, is entitled to open
and conclude. Should defendant take from
plaintiff by adm ssion this privilege, he
must admit plaintiffs whole case. Admls-
sion Of part of he case will not su1llce.
"When one sells property with warranty o.!
title, and suit is brought by stranger TO
eyict the vendee, if the latter would hold
his warrantor bound by the Judgment OF
l. eviction,
eouiyocal notice of the suit aud require
him TO come in aud delenu it. 1t is not
enough that the warrantOr may know OF
sne existence OF the suit. lie must De
called upon to defend it," "a Yendee
with warranty may himself undertake the
defense OF the suit, but if after the eviction
he brings suit upon the warranty, ne must
provethat he was evicted by superior
lille, which he could not resist" The
judgment ought TO be reversed anu re-
handed. Delany,j. m
Troy VS.. Ellis; from Bee county. Tne
rr4ntor of a certain tract of land conveyed
ID to A. A. conveyed it to H., and Is. con-
yeyed il to G. Each deed purported to
convey the entire survey, describing 1t by
me es and bounds, and by naming the
original grantees, and as containing SUI
acres more or less. U. conveyed an unnl-
yided Interest of $50 acres TO d., similar
int rest of 90 acres TO E., and similar in
ter, st of $50 acres to Il. c., p. and Il. con-
yeyed their respective interests 10 f. Ellis,
who took possession of the entire tract, U.
afterwards conveyed by quit-claim TO plain
tiff Troy all the formers interest in the sur
yey, being the excess over and above what
he had previously conveyed to D.,
II. and f. Plaintiff sues for the excess,
praving for survey and Partition
IL was in evidence that defendant, being In
possession, had prevented his making an
actual survey of the land; that surveyor,
taking the field notes, had made plat OF
the survey, and found 1t contained about
2OO acres in excess Of the 800 bought by hl-
is from d., Il. and f., the vendees OF Z.
Judgment was rendered tor defendant with
out an order of survey. Held, error that
d. e. and Il. took from @. and conveyed TO
Ellis only the specified 800 acres mentioned
in their deeds, and that, if there was any
excess over that amount, it passed to Troy
BY his purchase from q. The lndgment
ought to be reversed and remanded. De-
lany, ].
BIa1ton VS.. Mays; from Chambers
county. One Schulter made his VIII, be-
queathing his property 30 John howaru;
Galveston, aud to the survivor OF them,
'forcertain uses and purposes therein ex-
pressed. They were appointed executors
and the will provided that they should adj
minister the estate Independently OF the
courts. The will was probated IN 1870,
Davis and Frederick renouncing the trust,
Howard qualified, and sold the land TO
Mays. Howard afterwards dying, anpsl'
liant was appointed Administrative, with the
viii of Schulter's estate annexed. She
bfings suit as such TO recover the land.
Held. the trust was created upon the per
sonal confidence. reposed in Davis, Fred
ericx and Howard, and the only cOntin-
gency upon which less num-
her than the whole could act
was the death Of some Of them. Under the
Howard could not make the
sale. The case Of johnson vs.. B1wden, 43
Ter. 81. Is criticised and its correctness
Questioned. The trustees only had author
Nv 10 manage and control the property IN
order 10 secure an income 10 remain and
accumulate in Their hands until the time
4amrd for division OF the original property,
sith the income accumulated, fmong the
ernfees. The court erroneOusly charged
be jury that, II the sac sas mae ~ m
u,Irn9gs Of paving OF the debts Ut the
a-tste. or 10. secure an income from the
1r0perty. 20 find for Mayes, o. there ives no |
violence OF any debts against the estate
,ssides. the evidence shows that the land I
- aoid because IL I'D not bring in q rev /