Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-03-08


PENDANTS and hy them concea,ed
y Is not alleged that the deiendants
did anything 10 Induce the attorney ~
violate his Instructions. and ihe jnsiruc.
lions 70 him 70 resist The report or decree
were such as defendants were NOT hanna
10 regard.
II title 70 any Of the tracts set apart to
plaintiffs fails by reason OF facts existing
=, tne time OF partition, they VIII be ca.
stied 70 the same relief as though eae1 II
uelenuants had conveyed to her BY deed
win general wairantyi or may recover
LOT expenses as may be expended 70 re.
move incumornnces. This relief Is not
prayed Tor, and the court did not efrindts-
missing toe suit. Affirmed. Opinion by
Stayton, j.
DE Volt ct al vs. w. II Benson, appeal
from ft. Bend. Suit on an account due
benson from the estate OF Thomas DE
Nolt deceased, brought against the exec
utor. The executor having died, II was
suggested 10 the court that Daniel Dc
Won, SON OF deceased, had taken charge
OF his estate and was managing ii Cor
himself and younger brother. who was
a minor, and that these two were tue only
heirs, and asked that Daniel he cited pnd
made a party TO tide suit. Subsequently,
Daniel appeared and answered and there
was trial and Judgment against Daniel
and Thomas Do Volt, the two brothers.
Held, the Judgment is clearly erroneous
Thomas had never been made party de-
iendant, nor had he been served with ci-
tatoni nor appeared and pleaded, and the
reversal OF the Judgment as to one
heir or legatee held Jointly liable
with another on contract Of their ances.
tor or tcstatOr necessarily rcyorsce as 10
both. While vs. Thomas, % Tex. l55
Reversed and remandcd Opinion by
Willie, O. J.
Parker etal VS., Baines Ct al, appeal
from Fort Bend In case OF conflict OF
surveys tits the rule that from and after
the time whcn the owner OF the elder
grant enters into actual possession Of his
land, the adverse holding Of those claim.
Ing any portion Of II under Junior title
Is limited TO their actual possession, Inn
prOyements or Enclosures. Gi Tex, 81 /.
q Tex 2s9; ~ otto, 338 The elder tl-
tie draws 20 It the seizln OF the entire
tract covered by IT, 10 Tex, 8ss; Angel
on Lin, 400. Upon entry by one clam.
Ing under . different title, the owner of
tile elder grant Is diSsclled 20 the full ex
tent of the boundaries called for in the title
of the dissczer. Buff such owner him.
self take actual possession OF his land,
the sei2in OF the trespasscr is then linn.
tied TO his actual nclosure and improve.
ments from the date Of the true own
er's entry. Reversed and rendered.
opinion by Willie, G. j
Il, w. Corl VS.. Mayor and CITY of
Houston, appeal from Harris. when a
statute does not provide a remedy for the
collection OF taxes, which Is made cxclu.
sive, theylmay he collected oreniorced bv
suit; Desty Taxation FOG.
The statute does not require the inser.
ton In citation Of the words 'neNt reg
ular term OF the court Ii Is sufficient
II the time and place OF holding the term
Is stated. r. s. l2l5.
The aycrments OF the petition showed
that the taxes were assessed against
three-fourth~ only of block IN the city,
while the Judgment lorecloses u lien upon
the entire block and directs its sale.
Held, that the judgment is erroneous.
There was also error In rendering
Judgment for interest ON the taxes due
prior 10 the passage OF an ordinance by
the city authorizing the collection of In.
terest on such unpaid taxes Interest on
taxes rs not recoverable unless expressly
provided by statute. 50 Tex $40 Re
rersed and remanded Opinion by Willie
| CD.
Hoffman et al. vs.. Schmidt ct. al e.,
appeal from Harris. After the lapse
OF twelve months the heir OF the
deceased partner may have him distrlb
ute the estate under the supervision OF
the probate court or creditor may re-
quire the community survivor TO file al
account after one year. II he is not thus
brought into the probate court, he Is In
dependent Of the orders and not subject
to the control of such court. When his
bond, inventory and appraisement have
been tlled and approved, the law vests
him with the power to manage aud con
troll the community property, pay the
! debts and distribute the estate, aud dis.
misses him with only the admonitlon tC
keep correct account. His discretion
alone directs him, and his fidelity Is Sc
cured alone by his bond, He is trustee
and not an administrator. Pending
his truSteeship he is not the agen
or hand Of the probate cour
and therefore suit will lie against hin
on his bond In the district court fo
waste, conversion or for making false in
yentory. Reversed and remanded
Opinion by Robertson, j,
! II. Kempner W.. j. Heidinhelmer, ap
peal from Galveston. The measure o
damages for breach of contract of sale 81
| land by the purchaser is the difference
! between the contract price and the sla
! bic value. This value may be fixed llyt
/ fair resale after notice to the party to b'
bound by the price as the value, within 4
reasonable time after the breach. VIVA
! IS n reasonable time is question OF fact
varied by the circumstances Of c0ci
case. The lapse OF such perlot
as would give room for fluctuations In the
market In the usual order OF 'hlugs, or o
such as would authorize the inference
! that the vendor had elected not TO adop
4 this means OF liking the measure Of la
binty would be unreasonable. TO b'
! hound by the price, the defendant shoul'
7 have notice OF the sale. The sale Is, II
some sense, a sale Of his property TO pay
his debt, and 10 protect his Interest he Il
| entitled 30 notice.
In this sale the resale was made with
out notice TO defendant, privately, sever
months after the breach, and the conr
did not err in holding that the deiendan
was not bound by that rule. Aniflhed
! Opinion by Robertson, j.
/ II C. Burlington vs.. l.. II. Freedman, ep
/ .,tsl Yam, sTba dpfanfanf bping kpCre