The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-05-26


petition. Excuses for falling 10 make a re.
port In due time cannot avail defendant
The statute 10 percmptory, and nothing but
a compliance with It's terms cln relieve tne
company from liability. Affirmed.
Ehingtr Va. Gates; from Barnet county.
Opinion By Delaney, J. Adopted This is
a suit OF tresp4ss 10 try title 10 certain
properly originally belonging 10 nppsilan'
but sold under execution and bought by
appellees. Tbs validity OF the Judgment
ana the regularity OF the sale Is hot anes.
toned, but appelan claim, tho property
as his homestead. Tho proof shows that
appellant married In 1872 or 1873. and soon
afterwards purchased the property. The
property was never enclosed or improved in
any way whatever. Plainiif owned and
occupied Other. property. He insists. how
homestead. The only uss when
he made OF the lots wss that he
occ asionAlly siaked his horse there when
he could not fad better grass elsewhere.
His wife also had COW and calf, and the
latter was occasionally staked on the prop
erty. Held: The homestead clLim Is OF no
avail. Affirmed.
Myers and Eakls VS.. MARI G. Heath; from
TArrant county. Opinion by Watts, |.
Adopted When appellee Instituted suit
fer the recovery ot certain el.ims alleged to
or due her In her separate right, and alter
ward amended her petition and set up the
death OF her husband and her own queliti.
cation ne surv wing widow, and claimed q
recovery OF ths claims as the community
property OF herself and husband. Held:
BY the amendment wherein appellee
changed the capacity from that In which
she had brought the suit. a new cause OF
action was asserted which would be subject
to The defense OF Limitation; (NcIlhenny We.
Lee, AZ Texas, 2lo). Excluding from COM
putation the time which elapsed between
the death OF her husband and the quslifi.
cettous OF appellee rs survivor In commu.
nifty, the entire claim appears to have beer
barred by limitation when the amended
petition was filed. Appellants special OK
ceptions on that ground should have been
sustained. Reversed and remanded
Nix & SIo,y vs. Oardwell ct al; from
Caldwell caun'y. Opinion by Watts. J.
Adopted. In suits for the foreclosure vi
encum brances, OF whose claims not ce is
giver before the tiliog ol the suit, either by
possession, or registration, must be made
par:ies, otherwise they wil not 10 affected
In any manner by such foreclosure.
10 this state mortgage isso far c,nsid-
cred an Incident to the debt which IL was
given to secure, that II the debt is barred
by the statute Of limitstior, the crsdt'or Is
lett wiihon! remedy up m the mortgage
Limitation does not extineuish the debt
and the debtor may ordinarily waive the
bar. II he fails to assert IL as u defense
either Dy special exception, or plee, he will
be considered ns having waived i,s benefit.
TIE defense, or Plea, OF the statute Of
Limitation is personal privilege OF the
debtor, which he may assert or waive ut his
election. However, II he has parted with
bis interest ia property which might be ~
fected bv the defense Of limitation, either
by absolute conyeya zee, or mortgage, the
person standing In the place ri the Geb's,
with rcisr-nca 10 the particular property
may avail hims,li OF that deiensr 30 pro-
tect his right TO the samo. Alter the exc
cution OF "a subsequant mt gage, the mort
eager could not rlnsw the suoseq2en!
barred debt 50 Ss 10 affect toe suose1uent
mortgages right 70, or interest IN the
properly. Affirmed
Loeb "a. l. &c II. Blum from Limestone
county. Opininn by Delaney / Adopted.
where levied writ OF u.tscnHent upon
B's goods, and Is filed bis affidavit and
bono 10 try the night OF property, aud alter
wards q seized the goods, sold the NJ under
execution against B anu appropriated the
proceeds, and Is alleged TIE tact in his petit.
ton as grount OF his claim Tor damages
against q. He'd; The court properly sus.
tained special exceptions to the part OF the
petition setting up these fscts, whether the
goods were in custodis legis, or not.
Where the court, In framing q arge, sp'
pears 10 have held that since the act Of No.
VEN Der 8. 1879, an inso.vent debtor cannot
make valid transfer of his property TO one
creditor In pay ment OF debt, to the OK.
clusion OF other creditors, though 1t be
done in entire good faith. Held: The 70
verfe OF this charge 10 the correct law. Re-
versed and remsnded.
Meyers ct al. vs.. Heath; from TGrant
county. Opinion BY Watts, J. Adopted
In ntk in fnp - oh ho n 4.
ing am ong the partners OF o dissolved hrui
esch Of the co.partners 10 individually liable
to the others for Whatever amount 10 found
to be owing by him, unless IL has other
wise been aRyeed among them.
When 1t wss found that Doth N. & b
were both indebted 10 the firm, but there
was no finding Of the relative amounts
the port OF N. and B. 10 alleged. Held: A
judgment decreeing Joint liability was err
roneous.
Where tho proof sho we'd that the money
invested In the partnership was the pro-
ceeds OF properly inherited by the wife
from her grandparents while sbe lived In
another st'te, there Is neither allegations
or proof % 10 the law In the state. Held;
In such cases tie presumption Will be IT.
dulRed but the same rules Of law prevail In
such states ss bave, as the rights OF the
parties m act DO determined BY the laws oil
this state. reversed and remanded.
Montgomery vs.. Etheridee ct AL; from
Williamson county. This csuse comes be-
fore the court 1pon motion 10 affirm on
certificate and the same having been ex.
amined and fonnd containing the necessary
captior, final judgment, motion for new
trial, notice OF appeal bond, bill OF COTS
aud certificate, all Ia due aud proper form,
as required by law, the motion is granted
and the case affirmed without reference to
the merits. Affirmed.
Todd et oil. vs.. Mssterson ct al; from
Burnett county. Opinion by 6lavton ].
The land in controversy was granted 10
" iIlism @. NJ. B,ker, who, as citizsn sol
der, fell ct the Alamo. Is was issued IN
der the act OF December q, 1887; (P. D.,
art. 4059,) and the sale question passed
upoa IL, vas the land granted by this CO..
titicate subject to be palced In the admini,-
traitors hands Tor the payment OF debts
due by the estate Of the tes.stor, or was II
suoh a. vested 1T once In the heirs upon the
death OF tho receiver. HELD II was ntt
subject to the debts OF the testator. Al
| frmed.
Mote. The opinion In the above case II
very lengthy and exhaustive, and . more
lengthy syllabus than the judges conclu
sions could not we'll be given without con
| Su~ I'd