The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-04-19
THE HIGHER COURTS.
lAusrIN TERM 1888.
Synopsis of Opinions Of the Supreme
REPORTED BY ED. j. HAMMER.

Synopsis of Opinions Of the Supreme
Court.
REPORTED BY ED. j. HAMMER.
Parties desiring information upon matters
concerning the higher courts will receive such
by writing our court reporter
Long VS.. Brenneman; appeal from
Lamar county.-The judgment by de-
fault reciting due service upon the
defendant, will be held conclusive
upon collateral attack. The record
being silent upon the question of no.
tice, the presumption is in favor of
the recital in the judgment of proper
service by publication, and in suit
to vacate such judgment parol testi-
mony is inadmissible to controvert
the recital of service therein. Affirm
ed.-Willie, G. j..
Morrill, VS.. Bartlett; from Red River
county.-In this case motion to set
aside the judgment IS filed, based on
the ground that the chief justice de-
livering the opinion of the court was
of counsel in case wherein the same
land was in dispute. Held, As the
facts show that the chief Justices
name was signed to the petition with
out his knowledge, and that he never
knew of the case until now. the
ground is untenable. However, for
the purpose of giving appellees a
chance for so amending the motion as
to set up any other grounds, upon
which the parties may rely, the mo-
ton is held up for twenty days.
Williamson ct al VS.. OConnor;
from Lamar county.-The evidence
sufficiently shows that w. and B., by
taking separate notes and mortgages
to secure to each ascertain portion of
the land, they intended to partition
the land heretofore held by them in
common. The evidence shows the
sale to have been eXecutory in char
acter, and therefore the deed from the
attorney in fact of NJ, and admins
traitor of b. to G. W. W., with the
decree of the district court upon GER
tiorari from the probate court con-
firming the sale was properly adj
mitted and conveyed good title. Az
ftrmed.-Stayton, j.
Somers VS.. Peterson; from Dallas
county.-Where the certificate of the
officer (under the law of 1846) showed
upon its face that the grantor in the
deed "was made known to him." the
fact that he failed to indorse on the
back of the deed the manner of it be-
ing made known is not valid objec-
ton, as it will be presumed that the
means of obtaining the knowledge
was proper and legal. The error of
the court in refusing to admit the
original deed after admitting GER
titled copy thereof was imma-
terial, as the court tried the case with
out a jury. The failure of the
subscribing witness to state that, he
signed at the request Of the grantor
was cured by his stating on oath the
same day before the proper officer
that the grantor did acknowledge on
that day in his presence that he did
execute the deed for the purposes and
considerations therein named. The
rule now is, as it was before the re-
Vised statutes, that Il tenant in COM
mon, can, without joining his coten-
ant, bring suit against a wrong-dOer.
Affirmed.-West,J j.
Settle VS.. feathers; from Montague
county.-The only question arising in
this case is as to the suf1iciency the
evidence to support the allegation of
failure of consideration of the notes
sued on. Without going into a dis
cusSion of the evidence, it is sufficient
to say that the evidence does not sup
port the verdict. Reversed and re-
manded.-Stayton, j.
Stephens VS.. Galloway; from Fan
min county.-The decree in the suit
between the widow and heirs of
Nolle in favor of Fuller, vested in
him as against their title to one-third
Of the land, the same which Nolle
would have been entitled to if he had
located the land, and such recovery
was a complete bar to any claim NOlle
or his heirs could set up for locating
the land us against Slaughter.
Slaughter, who alone could
urge any objection to the
substitution of Fuller by Nolle,
having by an agreement recognized
the fact that Fuller located the land
and was entitled to the third of the
land for his services and waived any
objection thereto, appellee claiming
under a quit claim deed made after
the ratification of which he had no.
tice, cannot object that Fuller and
not Nolle located the land. Reversed
and remanded.- Stayton, j.
Brownson VS.. Lloyd Seaman ct al;
llOli w anu OO1hOJ. l. OIL OAOo ColliiOO
claim the benefit of three-years' pos
session under title, or color Of title,
when one Of the deeds through which
they must trace title back to the
sovereignty of the soil, was executed
by party who had previously parted
with all his interest in the land by
deed to another, and that deed was
recorded at the time of his making
the second conveyance. Gong VS..
Brenneman, decided at this term
Skannel being inl condition to claim
title under five years limitation, as to
him the case is affirmed, but as to
Rainwater is reversed and remanded.
Willie, G. j.
Russell ct al vs.. Freedman & Co.; from
Navarro county. l. The question
as to removal having been decided in
Lewis VS.. Meisner Cat Galveston term),
reference to that case is made. 2. The
court having erred in instructing the
jury that If the assignee had no notice
of the fraudulent intent of the assign
or, the conveyance, though made with
the fraudulent intent on the part of
such assignor to hinder and delay
creditors would not be invalid and
void, the judgment is reversed and
the cause remanded. Reversed and
remanded.-Opinion of Walker, p. J.
A = Cd