The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-01
THE HIGHER COURTS.
SUPREME COURT.


ions by the death Of the husband or ?
husband or wife, If there be no children .
of the marriage the survivor inherits a
he community estate. The words child +
or Chill iren as used In Art 1853, Rev. h
Stats, do not mean any but descent |
ants and do not include grandchild-
en-. Reversed and rendered. q
j. G. Terrell VS.. Sidney Martin, frOw I
Tarrant county; Stayton ]. In the as {
sence Of proof of facts which conferred I
on the administrator the power to sell, :
the deed IS not evidence OF title. THE
effect of deed as prima facie evidence is /,
restricted by Art,-2l92, Rev. Stats. to- The
act of making the sale, time, place, Ilnan
ner cad notice being included, but Il is
not prima fscte evidence that every act
has been done which is by law eCCired
to be done TO make the sale valid
Where oeed iseXecuted by deputy
acting for the sioriff, the deputy is the
proper person to acknowledge same.
Reversed and rSmanaed.
y. X. Stein VS., Freiberg, Kleiz IL Co.
ct al from Uvalde county. %illie {. |
. DistrlCC courts nave the pcwer To |
issue wrrts of injunction ia cases in |
which court OF chancery, under tbs |
settled r'lles of equity, would have
power to issue them, and Vhis without
reference to the amount in controversy.
writ Of injunction to prevent a sale OF
property under execution, which the
law had specially exempted from torT ed
sale, regardless Of the agnount In con
troversy.
When tho dist riot court hen once ac-
quired iurisdicti or by reason of tho in
junction prayeCl for aud issued, it should
retain cOntrOi i the case unSil the relief
to which plain iff IA entitled, is CREATED.
4TeXas Law Review. 2g00 R9Varsou
and remGnded
Thomes II. ! 'loyd VS.. j. G. McCcmos,
from Cellaha Is county. Willie, c. j..
Suit by appe lice against appellant 20
recover amo ant due on promm. ssory
note and to toreGlose vendors Zen on
land in partI &yment OF purchase money
of which the uote was given. TIE peJi
ton COntai ned tho usual accounts,
charging I'M ier ALA, "that e. lien was re-
served upon same property to sec are the
payment said note az will more fully
appear by reference to attacked note
mace part OF this penti9n." Tho note
rec'tes I'll at it is given cs part
purchase money on properly sod
to Floyd, elm Bell Elains, Ivy dee1
dated the i2Ca day OF April, 1872, and
recorded -inDouded TO he reC0rded--iu
the book OF records 81 said Callahan
county, I Iexsss" " is dated MG7 %. 1852
ub Nbbu W tt4B ltuds tt]NH Wnltu Lht
lien was clGimed bore date April 2,
1882; wa dle2 for record May %, 1892
and reCC rded three days thereafter. This
deed acl Sn9wledges tho receipt of the
purohas o money, and says nothing
about q 10 reservation of lien TO secure
the pay ment OF any portion o, same.
When his deed was offered in evidence
defend ant objected to IL because of 4 va.
rance between it and that described in
the pet itOl. Hold; Tho petition sYers
that lien was reserved in tho note. not
In the deed, and the note being mRdo q
part OF the petition, there could DO nc
variance. The reoitalG IN tho deed that
the purchase money has besn paid may
always be contradictsd In suit fer the
purchase money between tho parties u
tho deed Affirmed.
@. Serrsn 81 al. VS.. M. i, Merri5k OF
al; from Be1ar county, Watts, j
Adopted. Upon the cancel alton OF a
patent all the land eHa braced with IN It's
calls, and not otherwise appropriated
Immediately vests In the stSte as unap
propriateG public domain. 1t appears
from the record that tho land in con.
trovorsy n part OF tho public domain OF
the state Of Texas and, therefore eppel
lee has no title which would support
recovery. Reversed and rendered
J, I. Breckenridge Us. Mary A.E-Owtl
OF al, from 8exar county. Wctts, ]
Adopted. When patent IL cancelled
gesurvey made and another patent is
sued, the parties might have new par
tition made. But this ohGlgo would
net necessarily work g resCisiCn OF
revocation Of @ partition Volnrtar
made by too parties, by their Join
deed then Of record, Of the land covered
by the first patent. And this, though
one may have lost more Of the land nj
lotted TO him JhEn did the other. w hat
Mt nd 90, tlsrl,I
have been made good by voluntary OF
forced contribution without interfering
with the dlVidiCn line established bS
their parties in their Geed. When q
years have elapsed since tho record %
the deed and the 4n3titutton OF suit, anC
the second patent has been issued NOR,
than Is years before any right IL assert
ed Inconsistent wish the deed of part
ton and there is no ciscUmstanc,
showing the consrary, IL will DO IRE
sumed that the original parties entered
into come arrangement about tie def
cit which was entirely satisfactory 3,
them. and subsegusnt purchasers o
claimants under the original parties gr,
estOppod frOm asserting any right in
consistent with tho deed. Reversed
and r6manded.
IL Is en- appeal 60 tao court 20 vRGstC
the sales upon equitable considerations
and tho rule is that che party seelsinl
tho remedy must act promptly, for 9th
erwise he viii DO held 80 have &C
quiesced m and waived the Irregular
ties. Hancock vs.. Mot;, 10 Texas. gOj
Na1dorguo vs.. Nandergue, 10 N. j.. Eq.
w; Crawford VS.. GinO, 30 Iowa, 80
What would be The rocult If tie sale,
under which appellant claims SHOULD
now be yaCgted2 Doubt ess the iudF
meut has hc.o ONE dormant, and II no
the lien has lapsed and " o land wuulJ
be discharged Of tho debt Obviously
the result otGuch action would not be .
resale OF the land under the Judgment
but 20 vest the title In the appellee free
from sny iEGumbrance by .eason of Tho
judgment. IN short, Il wovld result IN
robbing appellant that bounty NIGH
be bestowed upon appellee, all OF whicl
would be oCcasiCned solelybv appelleei,
delay IN insututng proceedings to va
cate the sales. No court oil equity
should eyer ole, such tempting re
ward for teaches. This long acuuies
cence and delay places Il beyond th,
power of the court 10 restore tie partie,
to their original rights, and while an
police seoku equity he studiously avoid,
any semblance Of a willingness 10 d,
equity. The relief ought by him coulc
only be awarded at the utter sacrlfic,
oil al right 70 which appellant might b,
entitled, Therefore, upon a considers
ton OF the case, as presented by the In
convention, IL clearly appears that thu
Judgment OF the court below has II,
foundation in right and Justice. Ro
Yerscd and rem2ndod.
J. d. Mckinn0n W.. W. G. McGoWan
from Montague county. Watts, /
Adopted. In tho absence OF state
ment " facts only such errors "a az
soown by the record which 10 20 Oh,
foundation of the action or merits Of
the cause can DO considered Morris, b
Files, 40 Toxas, S7s). Appellee, by hi,
intervention, soudht TO have the sher.
ih's sales made In 1875 vacated and set
aside upon the ground of gross made,
9uScy o. price, irregularities and fraud
In the sele. dis tirst appearance I'm the
case was juune 6, 1881, some six wears