The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-05-25
THE AIGaAR ooUA4s.
rHE srpREME nnuRr.

by appellants against appellees in Wise
county. The petition alleged that n.
Younger and Q. Younger composed ihe
firm OF Younger Bros, and that the for
mer resided in Wise, and the latter in
Montague county. Appellees pleaded
to the jurisdiction of the court because
OF The residence of both defendants IL
Montague county. The evidence show
cd that the defendant had two mel can.
tile establishments, one at Denver, in
Montague county, and the otber al sun
set, IN Wise county, some seven lnjies
south of Denver Ceph. Younger was
married man and lived near Inc store
AT Denver; Nat. Younger was uumar.
ried and divided his time between tba
two stores, the witness varying as 10
the proportion OF time by him 81 ent ~
the respective stores. While az Denver
he slept in the store and took mis- meals
al Ueph Younger's; while at Sunset he
slept in the store and took his meals at
restaurant, his acquaintanees varying
in their respective opinions as to his
sesidence at DenYer, many of them 81 AT
ing mat he spent as much time AZ Sun
set as at Denver. He ordered goods TO?
both establishments from Sunset. The
goods were shipped to and received by
the house at Sunset, and such as were
needed at Denver were taken from The
Sunset house and sent to Denver.
The TWO brothers first owned Il store al
Denver, in Montague county. They
then established branch house al Sun.
set, which was on The railroad and sup.
posed to DO in Wise county, and placed
anoCher brother (Pearce) IN charge OF it,
The two stores were seven miles apart,
ana N. Younger was there very often,
frequently spending several days at
time But be appears to have voted in
Montague county and to have claimed
Denver as his home. Held: The only
question in this case is one of jurlsdiG.
ZION and that depends upon tho resi-.
dence Of n. Younger. II his residence
was in Wise county the court had juris-
diction of the case, other
wise ii had not. (Rev. Stats, Art.
49S, sec. u. In Brown va. Bouldin
Us Texas, 43i), it Ia said that ii defend
ants affairs are in such state "that il
cannot be certainly known in which
county his residence in fact il, we think
it may be held, consistently with the
legislative intention, that SUIT NAV bs
brought in either county" The rea-
sOning of tho court i'm that case would
probably not apply with It's full force 10
a case like the present. Here there
were two partners. There was no doub
about the residence Of one Of them
hence there was no doubt that the suit
might DO maintained in MONTAGUE
county. The appellants, therefore, need
not have been mlsled by. the seemingly
doubtful residence Of the other partner.
And as the prepouderauce of evidence
seems to he in favor of the finding OF the
court, the Judgment is affirmed
Kaufman IL Ruugo VS., M. l.. Shell
worth eJ al, from Taylor county: Slav
ton, j. Both parties claim tho properly
in controversy through j. G. Camp. An.
pellants claim through Judgment rea.
dered In their favor against d ARIA OF
winch Camp was q member. In the
cause in which that Judgment was rem !
dered an attachment was levied on the
property, January 4, 1888, which was
subsequently 1OreclOaed and the prot
erty bought by appellants at sale reg. |
ulariy made under the Judgment. 40
pplleeS claim through the following
deeds; /. From Camp to Sowell, dated
September %, 1852, and recorded Jauu-
AIRY o, 1883. 2 From Sowell to Chatham
dated January l, lSS3,and recorded j an.
uary 6, 1883. 3. Deed from Chatham To
Carpenter, dated January rs, 1883. and
filed for record same day. 4. Deed
from Carpenter 20 appellees.
da.ed September q, 1883, and |
filed for record September 2S, 1888. Ap-
pellees offered in evidence all tho origi- |
nal deeds except that from Carpenter TO |
himself aud OF this certified copy was
offered, which was objected to because
the non production OF tho original was
not sufficiently accounted for by the af |
hdavlt. The affidavit made by appel |
lees attorney after describing the deed, |
recltes: THAT he cannot procure tho
original, and that he has tried and done
all he could TO produce it, and said deed
decribes the land sued for in this caseu
Held: This affidavit was manifestly in |
SUFFICIENT. (Butler VS.. Demagon, ID
Texas, 556) During tho progress of "A
civil hotoh II IL becomes necessary to |
make an affidavit, II made by "A party. |
his agent or attorney, but in matters OF |
this Kind, the affidavit, If made by any |
person other than party to the suit. |
should exclude the superstition that tie |
party has II in his power TO procure the |
original, which this affidavit does not, |
The Judge trying the cause found that
when the attachment under which an. |
pellants claim was levied. Chatham |
was In possession, claiming the prom |
erty under the deed TO him from So.
we'll The evidence justified this find |
ing, and the fact existing was notice TO |
ms Title TO the property when the at |
tachment was levied. There was then |
through whom appellees claim the prop. |
erty, OF which appellants had notice |
wnen the attachment was levied. This |
constitutes q complete defense TO an. |
poilant9's ACTION whether appelles have |
acquired that title or not, hence the or |
roneOus ruling of the court upOu the |
admisslbillty Of the certified COPY of Inc |
decd IN of no importance. The result of /
the suit 10 appellants must have ueen .
the same had the court excluded the |
certified copy. Affirmed.
q Edward Millican, Adams vs.. IL. w. |
Ervlngi nom COryell county. Stayton,
j. Ordinarily a vendor who has made .
an eNocutory contract TO convey land
may roscind the contract # the Verdict
tails 10 pay the purchase money, but
this right does not exist in All
cases. tor II there be facts which
make IL inequitGble for vendor to OK
ercise this night, court of equity viii
not enforce IL but will leave a pertv 10
his action for the purchase money.
where one OF tho parties is dead and.
therefore, the mouth of the other h
closed, whereby II cannot be known
whether, as claimed by defendant, tho
payment ofthe money contemplated as
scash payment was made, and the ven
doe has assumed tho payment OF two
party as n part ot the consideration Tor
the land and neither NJ these Two notes
were produced ON the trial, nor was IL
SHOWN mat they mad not been 30 trans
ierred to third person as to mako him
an innocent holder aud TO cut OF equit-
able deiences, the court did not err i'm
not rendering Judgment for the land.
Affirmed.
John Vance VS.. Q. Epson OF al; from
BeAar county. Stayton, !. The power to
probate wills IL conferred upon county
courts by the constitution, and district
courts have appellate jurisdiction i'm
probate matters OF which county courts
are given original jurisdiction. Causes
appealed from county 70 district courts
must be tried anow az If orig.
innlly brought ia tho latter
court hence, ON appeal district ,
courts may do IN the given case what.
ever the county court would have done,
That the county court had previously
admitted 10 probate, az the win OF the Z
same testatOr another paper executes
II.