Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-02

tween the parties to the deed. AT
Serran We. Merrick, from Bexar
county. When n patent has been lie.
oallv cancelled all Of the land emf
braced within it's calls and not other
wise appropriated Immediately vests
in the state as unsppropriated public
domain. 1t appears from the proceed
inVs in>this case that the land In CEN
trnyersy is 8 part of the public domain
of the state OF Texas, and, therefore,
the appellees have no title which
would support a recovery. Reversed
and remanded.
Breckenridge VS.. Hawth ct al, from
BeKar county. The cancellation of n
patent, the resuryey of the land
and the issuance OF another pat
ent might entille parties In inter
est to smother partition, but
the change would not necessarily work
revision or revocation of partition
voluntarily made by the parties, by
their Joint act, then OF record, of the
land covered by the first patents and
this, though one may have lost more
than the other of the land allotted to
him. Whatever the deficit amounted
to might have been made good by vol
untary or forced contribution, without
interfering with the division line es-
tablished by the parties in the deed.
When thirty-six years have elapsed
since the record of the deed and the
institution of the suit, and the second
patent has been issued more than
twenty-five years before any right is
asserted inconsistent with the deed OF
partition, and there Is no circumstance
L. xnttIl haa
sumed that the original parties entered
into some arrangement about the de-
iicIt which was satisfactory to them,
and subsequent purchasers or claim
ants under the original parties are
estopped from asserting any right in
consistent with the deed. Reversed
and remanded.
McKennon va. McGowan, from
Montague county. In default OF
statement Of facts only suche errors as
are apparent OF record and which go to
the foundation OF the suit can be con-
sidered on appeal (A0 Tex, 374). Ap.
pellee interviewed in this case, seeking
to have the aheritf's sales made in
1876 vacatedupon the ground OF gross
inadequacy of price, Irregularities and
fraud in the sale. His first appear
Rnce was in June 1881, six years after
the sales were made, and no excuse Is
given for this long delay. This suit
has been pending four years and there
is no pretense that appellee was not
fully informed from the first of all the
Supposed facts asserted by him as
grounds for vacating the sales. The
appellee failed to proceed by motion
ia the original cause to Qussh the writ
upon its return TO that court, and this
proceeding inaugurated by his inter-
vention is lin effect, bill in equity, by
which 1t is sought to vacate the sale
on the grounds stated. 1t is an appeal
to the court to vacate
the sales upon equitable grounds,
and the rule is that the party seeking
the remedy must act promptly, for
otherwise he will be held to have
acquiesced in and waived the irregu-
lsrities Us Tex 205). The judgment
of the court below has no foundation
in right and justice. Reversed and
remanded,
The Houston & Texas Central Rail-
way VS.. Maddox, from Grayson coun-
ty. The judgment awarded plaintiff
damages FOR injuries inflicted by APP.
pellant's train. The injury was in
tlicted after the train arrived at ID.
Plaintiff, who was q brakeman in de-
fendants employ, was ordered to
couple certain Cars on the side.track
to be attached to and carried on by the
train. The injury occurred from an
attempt to use the links which he
found in the drawheads OF said cars,
Upon the question of negligence and
contributory negligence the court
charged as follows: "rhe law imposes
hr Iaf n sf,,t ~
nishing to it's employees machinery
and appliances of all kinds, including
links and pins, reasonably suitable
and proper to enable such employees to
perform the duties required OF them,
and also to use reasonable diligence to
keep such machinery and appliances
in such reas onably proper condition
after they are furnished, and IL plain
tiff WAS Injured by reason of a failure
of defendant in this respect, he would
be entitled to recover, unless you be-
lieve from the evidence that 1t WAS
part of the plaintiffs duty as brake
man to examine the Ink before under
taking to use it, Held, correct. AS
to the measure Of damages this case
comes under the rule laid down in
Sutherland on Dam, SO. Affirmed.
Leach ct al. VS.. Dodson from Cooke
county. Evidence aliunde lie admissi-
BILE to identify the grantee when his
Christian name is left blank In n deed,
but 1t must be sufficient to snow identi-
ty. 1t was proper to permit the pre-
siding officer OF a lodge, in the absence
OF the acting secretary, who was sick
there being no secretary, TO produce
the minutes OF the lodge TO show that
a deed executed by one of the officers
of the lodge was recorded in the min
utes of the lodge, which were APP
proved by that body. Questions which
are leading, should be made before
the trial. Reversed and remanded.
James vs. Adams a. Wickes, from
Bexar county. When land, owned by
parties in common, has been parti-
toned between them, whether volun-
tarily or by decree of court, the law of
this state will ordinarily imply COW
enant of warranty Of title TO the re-
spective allotments. Covenants of
warranty will ordinarily be implied In
voluntary partitions of land; neverthe-
less, II limited warranty Is clearly
ex pressed in the deed, it will generally
have the effect of displacisg the Inn
raoiWtpfkna. ~