Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-06-06

vendee IS necessary party 10 suit 10
foreclose the lien for purchase money
Rehearng granted, and the cause re-
manded only for the purpose OF deter
mining as to the rental value and render
ing Judgment In compliance with the
statute. Opinion by Willie, CD.
State of Texas VS.. Stone Cattle and
Pasture Company, error from Archer.
The state brought this suit to recover
number of sections of land in Archer
county, alleged to be In the
possession OF defendant under
title fraudulently obtained under chapter
ss OF the acts of ss9, and in violation Of
section Of that chapter. On exception
the venue Of sustained and suit dis
missed. This was error; chapter 104,
acts OF 1883, has reference only to lands
fraudulently purchased under the acts OF
1879 and 1851, and section of that act sin
terms confined to suits authorized Ia that
act.
The act under which the suitw WAS brought
provides that "every attempt to evade
the limitation of this act as TO the amount
or class of land one may purchase by
any device whatever, shall be deemed
fraudulent, and the fraud may be shown
and the purchase Cancelled by the state
within one year from the date OF sale "
This suit was brought more than one
year after the sale was made. The limi-
taton Of one year set out above must re-
ceiye the same construction as that applied
to other statutes of limitations: that
| is, that fraud being alleged and fraudu-
lent coucealment of the fraud by the de-
| PENDANT, the time will not run until dis
covery. In this case ii was alleged in
the petition that the defendant in the in
struments by which it had acted in MAX
ing the fraudulent purchases, had fraudu-
lent!y concealed from the state
the fact that the purchases were
OF defendant until less than one year be
fore the suit was fled. The fraud was
effectually concealed by the use of other
names as purchasers, and was kept con-
cealed as long as the titles remained in
such names, and the fact that defendant
at once entered into possession is not of
itself notice OF the fraud. 1t was error
to hold that the action was barred. Re-
versed aud remanded Opinion by Rob
ertson, j,
| Sanger Bros. VS.. Trammel 6 Co., APP
peal from Howard. In making Il levy
upon real estate, the Endorsement upon
the execution or attachment must take
! placed before the levy is complete, and
from the time OF such Endorsement must
be dated the lien acquired by the plaintiff
in execution or attachment. Each Of
the parties claim the land
through sales under writs levied
! by them respectively. Upon the
face of the papers the levy of appellant
was first in time and his right superior.
But it was shown by witness that in
fact at the time of the Endorsement on
| appelee's writ, none had been made on
| appellants. This being true the levy of
appellee was first in point of time, his
! lien the elder, and the sheriff in afterwards
making Endorsement upon appellants
writ showing prior levy committed a
fraud. II Is objected that this evil
dence was inadmissable because it
was collateral attack on the
official act of the officer. The obiec-
ton is not well taken. The return of
an officer Is binding upon the parties to
the suit until set aside by direct proceed
ing but as to the rights of strangers,
they may attack it whenever it conflicts
with their rights. Affirmed. OPINION by
Willie, CD.
Charles Il. Decourt vs. Sproull ct al,
appeal from Maverick. One who seeks a
donation homestead under chap. Q, title
| SO, X. S, is prohibited by said law
I from settling upon any land titled, or
| equitably owned under color of title from
the state, evidence of the appropriation
| OF which is on the county records or in
the general land office, etc. Art. 1851
A patent TO the land issued in 1880, under
which defendants claim. The plaintiff
2Igss t4P Sai ihe ilTp9 patent was Outlined
grantor was not the head Of faroi lie
nor settler on the 10y
ana the aflldavits made as indncan,ar,, ~
lne grant were false, etc, and the Urant
Volu. Held, the commissioner everc;seS
sne jurisdiction conferred by law. and If
ne was imposed upon, the state, and not
the plaihtift, was detrauded. The grant
10 ho1 yoid-the land is not public do
n NAM Wthln the meaning of the statnte
oiteu IL Is "ttled," and plaintiff showed
no cause OF action. Affirmed. Onin;on
by Robertson, j. P''-'on
MOTION.
Appeal bond-After recitinp tho rore,o.
ana amount of the Judgment. etc tbs
oond is conditioned as follows. en- nv
therefore, we, Ii. Limerick as pr,ncinai
amu as sureties, Acknowledge
t u,ursvlves pound to pay the Concho NJ
t uonal oank the sum of $4,000, Conditioned |
Vn'' Tue SAID IL. limerick shall prosecute
a., appeal with effect, and in case
se Juusment of the appellate conrt
NC against them that - viii
p pra It's Judgment, sentence and de-
800 800, anu pay all such damages as sad
SouII may award against - y ~
u,auks LETT leave the obligation void far n
and the bond is insntticiaUt
10 confer Jurisdiction upon this conrt
Mo'ioh 10 aitrm on certificate denied .