The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-11-21
THE HIGHER COURTS.
FINAL RESORT OF THE LITleANr
Deci Tons Rendered and the Synopses
Thereof, IN tho Supreme and APP
peilatc Courts of Texas, Re-
ported Tor the Herald.
surREME COURT.

upon the question rs to whether or not
the Agricultural ard Mechanical col
4 lege Of Texas is corporation capable of
suing and being sued in the courts OF
the country, The supreme court agrees
with the commissioners in holding that
said 60 lege IL no1 Il corporation, but not
for the rcaSuu~ given by the latter. 1t
CLEARLY appears that the | nd upon
4 which the college was situated, was a
\ donation 10 tho state in trust, to secure
a the location Of he college at Bryan, and
x the county of Hgazos has no right, title
or claim whatever to the land. In =
suit by the stG'e to reform the deed and
~ vest utle ont a the college and vest it
q in the state, ne party who executed the
decd Is a necessary party. Reversed and
demanded
Is Berry etai, VS., Boy en-; from McLen-
nan cuuutY Opinion by Watts, j.
Adop,rd Plaintiffs in error claim that
long before defendant in error executed
the deed 90 tae land in question they
had purl ha-ed the lot and paid tho de-
PENDANT IN error therefor ) 80, and that
she had placed them in possession, and
that then had made valuable improve
ments thereon, and We're occupyingit as
a homestead; that Sarah Berry did not
consent tn the pay ment of IS per month,
alleged tO have been a consideration 10
be paid by plaintiffs in error, and a
reservation OF a lien in tho deed to So
& cure the same, and a. the same was not
part Of the purchase money the court
erred in decreeing q foreclosure of the
alleged lien, fhe finding of the court,
Il To the effect that portion
y only Of the $50 was p id by plaintiffs
WAS K conflict Of evidence and il COnclu-
siye. The evidence showing that plain
TIL IN error went into possession of the
land upon the understanding that which
oi the two d mghters who first paid de-
feudaut u error $3.50 should have the lot
IN controversy; they had no title upon
which Ia Indicate Il homestead claim
against defendant IN error. 1t WIS,
therefore, connecticut for defendant in
error O. require the payment of the 50
per month, "lIh reservation of u lien
upon the property in the execution OF
the deed that is, tho title vested by the
convey ance was burdeued with the lien.
Whether called a contract or vendors
lion IL Is inimaterial, rs it is reserved in
the conveyance its effect would be the
same, Affirmed.
tt Andrews ct Al. w. Andrews; from Ellis
county. Opirinn by Watts, j, Adopted.
Parol eNiuouce is admissible TO estab-
iisn resuitins trust in bond without
regard 20 the form or date of the con
yeyance. Hitnuut considering in de-
tai the rJuy obi ,ctiuus raised TO the
judgment, The ruUrt holds that the find
lng> OF the court ARE sustained by the eV-
ldence, mat the resulting trust il shown
with sufficient ertaluty and clearness;
and that j. NJ. Andrews did conceal
from appellee bis interest in tho land sc
that the action would not be defeated
either by limitation or the statuess OF
the demand. A trustee of resulting
trust caunot 80 acquire homestead
upon The land az to defeat the trust
Allirmed.
Texas II Pacific Railway company VS..
scout rom Dallas county. Opinion hy
Watts, J. adapted. Although the lower
court erred IN not sustaining the excep
ton Ia chat part OF the petition which al.
leges thar appellee had wife and ION
children, yel as there was no evidence
admitted or offered on that issue, under
the charge % the court, the error ia not
materlu on p. Ry.Vs. Lyde, II Texas
5l0D The court did not err in not sus
tanning the special exception to tn It psrl
OF the petition which alleged that after
suit for wrongtuly dvertiug water
course whereby his land was damaged
appellant wrougluly diverted the water
OF another branch from its natural chan,
mel and threw II upon appellants land
thereby causing other aud additional
injury to same. THIS set up no new,
distinct or independent cause of action
but set up additional damage to his land
Tor which 'hGfarter Of damages the orig.
tnal suit was brought. Affirmed.
The Jus"pn Peters Furniture company
W. hickey, ,rom Wise county. OpmioT
by Delaney j. Adopted. The question
presented d this case is, can a suhse.
queni attaching creditor intervene in
hA lIUI al. q.
against ho same defendant, aud i'm.
peach tho validity of the previous at
tarhmeut uu the ground of fraud? Held,
lie cHnutt inv rvpUe and avail himself
VI mere ire gularities ia the proceed.
tngs. But hon an attachment is based
on irBduie' demand. or one which
has In fact no existence, the case Is other
wise. The court therefore erred in sus-
tanning d"murrnrs and exceptions of an.
pell9e u1 lho lhlel Ventiou of appellant
Reversed Guu romandod.
Supr me Numman0ry Knights ol
Golden Rule vs.. Rose ct al; fro IA Kauf.
man county. Opinion by Willie, q, /.
The ONLY assignment Of error presented
in this ca-c rs thar the court erred I'm re-
fusing TO state in writing its conclusions
or facts separately from it4 conclusions
OF law, n~ requested by appellant. The
JranScr pl contains mo ION hlpd hy nu-
pellnul, WINCH amounts 10 such a re-
quest, but there isuothiug to show that
~ was ever brought to the courts atteu-
lion, or insisted urOu hy appellgut.
Held; First, alhpu h W. are rsked In
infer thii II was refused, because there
IL no statement In % Q record of the
Judges conclusions OF law or fact, vet
we are not authorized to nuke such in
ference Second, evnry railing OF the
court made q ground OF error should
plainly ep ear ~ the transcript.
Npthing should be left to inference.
mHnnn Ike The present comes within
tho general rule (rulo 55) and not within
my exc" iloh' (Nules sup. O., &c. 81.
Third This court will not presume tbnt
demurrer was acted up6n wben tbc
record dueS nat snow that fact. The nra-
sumption IA that 10 was waived CNlnya
vs.. Rice, g PnNts, 81; Rhwlott Va. as q.
TON, Tex g., IaN; Chambers vs.. MiUar O
Texas, @'6 } Fourth, This court viii MOI
revise q railing refusing a continuance
although Their cord plainly shows spch
riHNi', unless a dill t executions is tR-
Ken to the court action. co Texas. l0I .
- TeNas, 81; ~ Texas, 03.) Fifth, Where
we rullhg oi the court upon the motion
ls not maize lp appear ailirmatiVcly, wa
must presume that the motion was nor
insisted upon, OF brought to the courts
attention Affirmed.
Grant VS.. Siupson; from Robertson
county Opinion by Walker, u. i,
Adopted. SUIT iOr n tract OF lonH
claimed by appellant under patent il.
sued Ju V D, 1872, by virtue of a survey
made Dec. mber 5, 1876, undor a land
certificate issued 20 Jesse Wallmg, as
Slgnee of V, Mundez Simpson blend
tha Fyner deual, not guilty, and spec.
laliy inst he acquired title 10 the land
as q pre-emptor April 20, 1876; setting
up the lnNaliditv of Grants patent be-
utuse TIE survey on which il WAS issued
wHs ul9ue without any land certificate
or legu authority THIS survey WINS tbe
lirst hutl" by Grant in 1874 Novenbpr
. 1910 Grant Ob aned from the general
i0au Ollico certificate tor his intete-t
IN thu MnIIny nnrliRnnln - "