Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-04-28

SUPREME COURT.
Bombarger VS.. Morrow. from F.,
min county. BIS deed to his wife and
children, reciting consideration IF
love and affection, contained the fol.
lowing: Hereby expressly reserylpr
to myself the right to manage and
control said land and premises and
have, enjoy and dispose OF the occu.
pancy, rents and profits OF said land
and premises for and during nv nat.
ural lite.o The land convened Inv ,ba
deed embraced the tract In c5ntra.
versy as well as other tracts ,rha
reservation in the deed preserved 10
the grantee life estate, and
conveyed an estate In re-
mainder TO the grantees named
70 take effect ON his death. The cues.
tlon is, can q remainder man prescribe
under our live years limitation by rea-
son OF the. possession of the particular
estate, who does not himself claim
under recorded deed ? In this case
the land Is claimed under Limitation
by parties holding the re-
u"iuucI uuuer deed, the
particular estate being held without
any conveyance whatever. Under our
statute possession must be claimed and
held under deed duly recorded. III.
looking to the terms of the deed alone.
no right of possession can be claimed
under 1t by grantee, then 1t cannot
set the statute of five years limitation
IN motion for his benefit. In holding
that the deed was not such as would
satisfy the statute of limitation, the
court did not error. Nor was there error
In refusing to admit evidence that the
reservation in the deed was intended
to apply to another, and not to the
tract of land in litigation. Affirmed.
Willie, G. j.
Freiberg, Klein & Cows. Lowe, from
Clay county. A charge of the court not
glaringly erroneous under an y state OF
facts that can arise under the plead
ings will not be revised without a
statement of facts. Such is not the
condition of the charge in this case.
That the record does not show aifirma-
lively that the jury was sworn is an
objection not revisable, since it was
not saved by bill of exception nor
made an assignment of error. AZ.
hrmed. Willie, j.
Brown & Co. VS.. Chancellor & Co.,
from Ellis county. Garnishment
can only issue when the debt
sued for Is due, unless in
a case in which an original
attachment has been issued. This
suit being brought and the garnish-
ment issued on the day that the note
was executed, the question whether
the suit was prematurely brought is
dependent upon whether or not note
payable on demand ia entitled to two
days of grace. After careful and
elaborate discussion OF Authorities bear
ing upon the subject, the court con-
cludes that 1t was not intended
by the act OF January
II, 1862, to give grace
to paper other than such as was enti-
tied thereto under the law mer-
chant, and that this suit was not
brought before the maturity of the pa
per sued on; from which 1t follows
that the court erred in setting aside
the writ and other proceedings in gar
nishment on the ground that the debt
was not due. A general authority to
one partner, on dissolution, to settle
the business OF the firm, does not au-
thOrize him to give note in the firm
name TO settle firm debt, or to renew
one given before dissolution. Re-
versed and remanded. Stayton, j.
Morrill, VS.. Stell, administrator, from
Lamar county. The one question in
volyed in this controversy W rs whether
or not the letters of S. and Morgan
to appellant, which We're read in evi.
dence, together with other evidence on
the trial, constituted a contract in
writing for the sale of the land. That
question turns upon whether or not
appellant accepted appellee's propo.
sition to convey to him the land ia
the event appellant succeeding in re-
versing the Judgment lin a certain
| case then on appeal. The lind
ing of the judge was that there was nc
such acceptance on the part of appel
liant. 1t was a question of fact, and
having ample evidence to support the
finding of the judge is as conclusive as
the verdict of jury. Affirmed on re
pOr' of Walker, commissioner.
Strong VS.. Curtis, from Clay county
Where mistake has occurred in re-
| ducing an agreement to writing, in
which the intention of the parties, by
reason of The mistake, is not truly ex
pressed, such writing may be cor
rected by proper report TO court OF
equity, so as to disclose the true inten
ton. AS condition precedent the
mistake must be clearly shown, and
generally, that it was mutual. Te
effect this purpose parol evidence Is
admissible. An issuable fact in this cast
was whether or not the intention wa
to incorporate in bill of sale of stock
the words. "except the beef cattle,
and that the mistake was II
their omission. Parol evidence To
show such intention and mistake
was admissible. That one of the par
ties testified that he did not intens
, that the words should form part of thu
contract was not conclusive of the
question. While in the issue as to tb'
real facts attending the execution
the instrument, the burden is on TN
party seeking relief, to clearly estab
Iish the mistake, the mere fact or
conflict of evidence does not preclud
him from complying with this req uire
ment. The credibility OF the evidenc
, is determinable by the jury. Partner
/. shin books are admissible In evldehc'
in suit by one partner agains
another. but 1t must iifst up
near that the partner sueet
had access to the BOOK
or in some way authorized the entire
8 charging him. and that the book
8 ware fairly kept. AS to these condi
: lions which are preliminary, they arr
] addressed TO the discretion of the court
ITndar the evidence In this case Their