The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-01-27
Other Very Interesting Excerpts.
synopsis of Opinions of the Supreme Court,
Galveston Term, 1888.


synopsis oil Opinions of the Supreme Court,
Galveston Term, 1888.
Read VS.. Allan ct al; from Houston
county. Appellant sued appel!ees by tres
pass to try title to part of the land origi.
nally granted to John Welsh. The facts
necessary to an understanding of the case
are these Appellee sued several defend
ants in the Federal court to recover an nm.
divided half of tract of land originally
granted to John Welsh, and made one Hart
defendant. Appellant had leased the land
TO one Wallace, who, without appellants
knowledge or consent, sub-leased it to
Hart. No knowledge OF the SUIT or the
Judgment rendered therein is shown in APP
pellant. Judgment was rendered in the
Federal court in favor of appellees against
Hart and the other defendants. On the
Trial OF this cause, the judgment in the Fed
eral court was offered as evidence of
title IN appellee, and over objections
admitted. Held, judgment rem
dered against q tenant in suit
to which the landlord was not a party and
had no chance TO defend his claims, is not
admissible as evidence of title in the party
obtaining such judgment in suit by such
party again said landlord (J6 Tex 1870
But that judgment and the pleadings on
which it was rendered are admissible 70
show when the landlords possession
through such tenant ceased to be peaceabe
possession and FOR no other purpose. AID.
pellant held peaeeable possession for
more than five wears previous
to the Information by the institution of Inc
suit in the Federal court, claiming under
deed duly recorded and paying taxes there
on, and the Judgment will therefore be re-
yersed and here rendered i'll favor of appel-
liant Reversed and rendered Stayton, /.
H. q II; Blum VS.. Barclay; from Tyler
county, The existence of the execution end
the Judgment upon which it was issued and
the levy all being admitted in the pleadings
they were not in issue, and it was not nee
essary FOR the party claiming under the
Judgment to make formal proof of its rem
dltlon-ll Tex, GLAND these facts being
admitted by both parties the court should
not have Submitted them as issues TO be
passed upon by the jury; Is Tex. 2lO; II
Tex, $50; AZ Tex, las; % Tex, 223 J Under
the iacts OF this case a charge to the effect
that fraud could not be proven by circum.
stances should have been given. The OBJ.
lection that the execution was put in evil
dence without explanation of how it came
TO be issued so soon after rendition of iudg.
ment, is not tenable. The presumption, in
the absence of all positive proof to the con-
irary, IS thai the execution was lawfully is.
sued. Reversed and remanded West. /.
Mckelvaine vs. Allan ct al. from Hons.
ton county. Powells bought certain land
from appellant giving him their promis.
sorry notes In payment therefor Although
the deed was absolute upon its face yet in
the notes it was expressly agreed ,at n
vendors lien be retained. The deed, in
with i
an eXecutory contract by appellant 10 sell
to the Powells (l1 Tex, 500 20 Tex. 80
AZ lex, ia; 70 Tex, G29; 40 Tex, 1853 %
Tex, 26l.) Appellee sued appellant and
PowellS for the land in the United States
circuit court, and before Judgment dis.
missed the suit against appellant. Powells
answered denying any claim to the land
and expressing willingness to pay rent
therefor to whom the court should desig.
nate Judgment was obtained against the
PoWells, In this suit of trespass to try title
TO the land against appellant that iudg-
ment rendered against the Powells was in
troduced and admitted as evidence of title
in appellee. Held error. Reversed and
remanded. Stayton, i.
;, osten W. Hollingsworth ct al. from
Houston county. Mcllenry and wife sold
Hollingsworth certain land, Tor which he
paid by giving them five promssory notes
falling due at separate times. Each of these
notes called for the delivery of twenty bales
Of cotton. McHenry, owing appellant,
transferred the four promissory notes first
falling due to them, appellee Davis received
the other, The question presented to us is,
can appellants claim that their notes first
falling due should be first satisfied ont of
the proceeds Of the sale of the encountered
land simply because their notes were first
assigned u them before that of Davis was
assigned to him. Held, it has been de-
oldea TO the contrary; Q53 Tex, 243);
ana We see no reason to doubt the
correctness OF that decision; (see also
IL Sergt. h Rowle, 400; 8 Bsar, AIS; 81 Ma.
4S; COL, 47S). Even before this decision
the tendency of previous decisions was in
that direction Q52 Tex, icy. The assignor
might byexpress words, give the right OF
priority to his assignee, which would be
sood as against subsequent purchasers of
oother notes secured by a contemporaneous
lien on the same property, such Subsequent
purchasers having notice of such preference.
Inc Tact that case of express contract is
treated as an exception to the rule, goes Jar
10 sustain the correctness of the rule, CIV
ing no preference where none is expressed,
Affirmed, Willie, G. /.
stark vs.. Whitman; from Orange county.
The plea OF Whitman in the lower court be-.
ing one OF personal privilege and not antici.
patlng ana excluding all such supposable
matter as II alleged by the opposing party
would defeat the plea, In that it only al.
legged the residence OF Whitman in New,os
and not Orange county, The plea was i'm.
properly sustained; IA Tex, 302; 8 Tex,
2OO). AS to the other error assigned that
the Judge refused ~ recuse himself be.
cause OF his brothers Interest in the event
ora Judgment, that point is not properly
presented to us. Tho objection was made
anu rs II is state Was overruled without
hearing evidence. Held. this does not
necessarily mean that the judge refused To
near evidence; II may mean That none was
offered, and as no presumptions will be in.
lu,ged IN favor oil appellants, this must be
INDUCED adverse TO him, However, subSe-
luent proceedings fail to show u relative of
the Judge TO be interested In the suit. Re.
versed aud remanded. Willie, c. 4.
Nelly n Roberts VS.. Robb; from Trinity
county. Appellee brought suit by ibjunc-
Ton TO restrain appellants from cutting
,oak timber from appellee's land and for
manages. The petition shows that Robb
sold Kelly all the said timber on said
land; that by "said timber" was meant
pine timber, III for lumber manufacturing;
mat ueiendapts were cutting oak timber
from the land, which was not In the con.
uWe hooerts was evidently claiming
under the contract with Robp by Kelly, as
hooerts and Kelly were partners. ludg-
ment perpetuaiing the injunction and $3.50
Tor damages. Held, there Is no statement
OF iacts In the record neither this court nor
me lower court could judicially know what
said timber meant, and In the absence OF
statement Of facts We must presume they
had the meaning claimed for them In the
petition. The petition stating that Roberts
was guilty OF the same wrongful acts as
Nelly. and acting In connection with him,
stated good cause Of notion. Affirmed.
Siayton,j.