The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1883-02-08
oonr Dfnr loss
aynopsis ~ opinlons 1T the supreme Oonri'
Galveston Teen, 1888.

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 uh-
divided halt OF tract OF land Originally
granted 10 John Welsh, and made one Hart
defendant Appellant had leased the lana
TO one Wallace, who, without appellant 3
knowledge or consent, su0-leased IL u
Hart. 40 knowledge OF the SUIT or the
Judgment rendered therein is shown IN APP
pellant. judgment was rendered IN the
Federal court in favor of appelees against
Hart and the other defendants. On the |
trial Of this cause, the judgment in the Fed.
eral court was offered rs evidence oil
title IN appellee, and over objections
admitted. Held, judgment rem |
to which the landlord was not party anu
had o chance to defend his claims, is not
admissible rs evidence OF title IN the party
obtaiuing such judgment in suit by such
party again tsaid landlord; (o6 Tex lSO'
But that judgment and the pleadlngs on
which it was rendered are admissible TO
show when the landlords possession
through such tenant ceased TO be peaceaoie
possession, and for no other purpose. Ap'
pellant held peaceable possession tor
more than five years previous
TO the information by the institution of the
suit in the Federal court, claiming under
deed duly recorded and paying taxes there
on. and the Judgment will therefore be re-
yerscd and here rendered in favor of appel
liant Reversed and rendered. Stayton, J.
l.. & H. Blum vs. Barclay; from Tyler
county. The existence of the execution ana
the judgment upon which 1t was issued ana
the levy all being admitted in the pleadlngs
they were not in issue, and it was not nee
essary for the party claiming under the
judgment to make formal proof OF It's rem
dition-ll Tex, Bland 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, ~ II
Tex, 636; AZ Tex las; Y Tex, 70 ubupr
the facts OF this case charge TO the ehect
that fraud could not be proven by circum-
stances should have been given. The OBJ.
lection that the execution was pat IN EVIL
dence without explanation OF how 1t came
to be issued 50 soon after rendition OF JuuE-
men, is not tenable. The presumption, IN
the alb sence of all positive proof to the con
trsry, is than the execution was lawfully. is
sued. Reversed and remanded. West, J.
McKelvaine VS.. Allan ct al, from Hous-
ton county. PoWells bought certain land
from appellant, giving him their promls'
sorry notes IN payment therefor. Although
the deed was absolute upon It's lace YET ID
the notes it was expressly agreed ttat
vendors lien be retained. the deed, III
connection with the notes, evidenced but
an executory contract by appellant 10 sell
to the Powells (ll Tex, $685. 20 Tex, SO
ag Tex, ia; 26 Tex, go 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 a willingness to pay rent
therefor TO whom the court should des!g-
nate. Judgment was obtained against the
Powells.g In this suit OF trespass to try. title
to the land against appellant that judg-
ment rendered against the Powells was in
troduced and admitted as evidence OF title
in appellee. Held, error. Reversed and
remanded. Stayton, ].
Wosten VS.. HollingsworLh ct al; from
Houston county. McHenry and wife sold
Hollingsworth certain land, Tor which he
paid by giving them five promissory 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 prOmlsSory notes nrsl
falling due to them, appellee Davis received
the other. The question presented to us Is,
can appellants claim that their notes Hrst
falling due should be first satisfied OUT OF
the proceeds of the sale Of the .encumbered
land simply because their notes were first
assigned to them before that Of Davis was
assigned to him. Held, it has been de-
cided to the contrary; Q53 Tex, 2i3);
and we see no reason 10 doubt the
of that decision; (see also
7SSergt,'N 2owle. 400; Biar, AIS; 81 Ma,
as; Col, 475). Even before this decision,
the tendency Of previous decisions was ii
that direction (l52 Tex, l2). The asslgnor
might by express words, give the riBnt oil |
priority TO his assignee, which would b.
good as against subsequent purchasers OF
other notes secured by contemporaneous
lien on the same property, such subsequent |
purchasers having notice OF such preference |
The fact that case of express contract is |
treated as an exception TO the RUE, goes Jar |
to sustain the correctness OF the rule, CIV |
ing no preference where none is expressed.
Affirmed. Willie, C. ].
Sark VS. Whitman; from Orange county.
The plea of Whitman in the lower court be-
ing one of personal privilege and not antici-
-DaIing ana excluding all such supposable
matter as il alleged by the opposing party
would defeat the plea, in that 1t only al
legged the residence OF Whitman in Newtos
and not Orange county. The plea was I'M
properly sustained; IA Tex, 3O2; Tex,
sO0j As to the other error assigned that
the Judge refused TO recuse himself be-
cause OF his brothers interest in the event
of judgment, that point is not properly
presented to US. The objection was made
and as IT is stated, was overrnied without a
necessarily mean that the judge refused TO
hear evidence; il may mean That none was
offered. and as no presumptions Will De IN
duiged IN favor OF appellants, TINS must Oe
INDUCED adverse 10 him, However, subse,
Quent proceedings fail TO show q relative OF
the Judge TO be interested Ia the suit. ke'
yersed and remanded. Willie, c. J.
Kelly e Roberts VS.. Robb; from Trinity
county. Appellee brought suit by inJunc-
ton % restrain appellants IRON cutting
"oak timber from appellee's land, and Tor
damages. The petition shows that RODE
sold Kelly all the said timber on salu
land. that by said timber was meant
pane timber, III for lumber manufacturing;
that defendants were cutting oak timber /
from the land, which was not 10 the CON /
tract. Roberts was evidently claiming I
under the contract with RobD by Kelly, as
Roberts and Kelly were partners. Judg- {
ment perpetuaiing the Injunction a.a SiS, {
of facts in the record; neither this court nor I
the lover court could judioially know what /
''eaid timber meant, and In uae absence OF !
a statement Of facts we must presume they :
had the meaning claimed for them IN the I
petitio-. The petition stating that kooefis /
was guilty Of the ZANE wrongful acts AZ :
Kelly and acting In connection with him, :
stated a good cause Of action. Affirmed. E
iTcGuiS vs.. Newhill: from Jefferson :
county. Syllabus.-L A statement Of :
facts made up and signed By the district \
Judge within ten days after ire adjourn
melt OF court, but not fled till three 1
mouths thereafter, viii, upon motion .of ap- ]
D-slae, be stricken from the transsript, 4
more especially where 20 order was en- :
.ered during term time allowing such state =
kentto be MADE up, signed or tied within d
.en days after sdlgarnnnen., Q
essentials 20 tbelegality Of such statements, n
! hich are that an order permitting 4 % b. n
m made must be entered during tern Il
Inc. and il must be made 40, signed and =
iled within tendays affer adjournment and =
IA !. -. - ., a-.fs ruef ~ strictly cnrn-