Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-10-19
COMMISSION OF APPEALS.
synCpses CT DGcshous Rendered at III,
PrcEent Tyler eitiiog
of the Gszette.

synCpses CT Decsnions Rendered At the
Present Tyler sitting.
Correspondence of the Gazette.
TYLER, TEX, Oct. II "A. J. Morris We.
T. H. Ctburn; appeal from Bosque.
L. When suit is brought for specific
property, the Judgment should be for the
recovery OF the property, sud IN me sitter
native for It's value. 2 Where a sues B
for the recovery OF COW, or her value,
and during the pending Of the suit said
COW has csf, the calf would belong to
A, he having recovered s. judgment fer the
COW or her value. 8. When specific CHAT.
tells sre sued tor, the value at the time Of
the verdict, or where there is g witt CT
restitution, st the time OF refusal TO COM
ply with the writ would be the correct
measure Of damages. AM med. COL
lMd,J.
McIihenny Co. vs.. G W. Todd; ap-
peal from Mason. The petition in this
ciss prayed for the removal OF Henry 81
Tod, Louis BTeam snd D. Doole, Sc
assignees Ct G. ". Todd who had made
IN assignment for the benea. of his
creditors. Il prsys for their removal snd
the appointment Of Others to execute the
trust; for the cancellation OF deed to G..
W. Todd, which it Is alleged hsd been
illegally executed By the assignees con-
veying to ssid Todd trGc: Of lsnd; that
the property be sold and the creditors
claims paid, and in the event it appeared
that the s-slgnees had illegslly disposed of
property, for Judgment sgsinst them and
their Dondsmen fer $1,000, attorneys fee
to De taxed as cost, and in event the
right relief was not prayed for, such relief
IS Gpp sllsnt was entitled 20 WAS prayed
for. Appellees answered by general ae.
murrer, special exceptions setting up
Limitation and wan! of jurisdiction, all of
which was sustained By the court and the
petition dismissed. The amount assignor
WAS due appellants amounted to the sum
Of S20S so, c part having been psid by as
sigaees. Held: /. Under prayer like
this in appellants petition, the court
could have granted such relief as the
csse made By the allegations of the petit
ton demanded, and refused TO grant so
much of the relief prayed for as was not
prayed for in the petition. :. An assig-
nee can not divest himself OF his fducisry
capacity, nor relieve himself Of IesponsI-
bili.y as assignee by abandoning the
trust estate, nor by conveying 1t to
s5other. The only way this can be &C
court. 8. The District court has piRg
to remove an assignee and appoint anot&
er to execute the trust. We are unsb&
to discover any rsEson for rule ofSaIw
to the effect that the amount due ~ par 4
ty complaining OF the assignee a8oyeIRR
the jurisdiction of the G&s6
in suit TO ramave the assignee
The court had Jurisdiction CT the suit.
4. The statute OF limitssions was not avail
able. The court erred In dismi"siag the
petition. Reversed and rcmEnded. Ac
ker, P. j.
NJ W.Garrer ct al. vg. NJ. Llzker etaI. !;
appeal from Burnet. Trespsks to Try
title. When parties claim under com
men source it shsll not be necessary to
trsce title beyond this: from which they
both clsim and proof may be made by
showing . claim OF title to defendant
emarstirg from and under such common
source. 2. A void tsx snd puvporting to
divest the common source of title and
which constitutes the basis Of DEFENDANTS
claim would be sn effsctusl mode OF es.
tablshing the DEFENDANTS elalm ensnsted
from such common source without giving
evidence Of actual title in defendant. J. a
defendant is not precIuded from showing
that he does not claim title from q com
mon source, but the fact t1at defendant
does not admit or sllege that he claim J
under such source will not de-
p:ive plaintiff Of the right to
make such proof ugdsr the law.
4. In mos. cases when deed would be
evidence IS an ancient instrument with
out proof Of its execution, the form
under which II purports to have been ex-
ecuted will be presumed. Reversed and
remanded. Hobby J..
P. j. Peters Ssddlery and Harness Co.
vs.. Schoelkopf & Co.; appeal from Hill.
Trial TO the right Of property to 8 stock
OF merchandise levied upon BY appellant
1. The proper practice where @ claimant
makes bond, and there ere two or more
plaintiffs. is to make the bond payable to
sll the plaintiffs. 2. The true test in de-
| termining IS to whether an instrument is
s mortgage CT bill OF ssle is, WAS the old
debt at the time Of the conveyance csn-
celled and absolutely psid? Is the rels-
ton OF debtor and creditor urqualifiedly
terminated? II SC, i. is NOT mortgage.
II from the instrument or from the sur
rounding circumstances it appears to
have been given as security for 8 debt,
il will be considered mortgage. 3. The
! possession Of the seller is only
prima fscis evidence Of fraud,
and no. fraud per &c, and
it may be rebutted BY evidence explana-
tory OF the possession and showing II Is
consisten: with fair transaction. 4. The
law makes some allowance for homes.
mistakes as to the value Of the properly
conveyed, and will not avoid tie con-
veysut for slight differences, unless
brought about by the fraud OF the parties
Affirmed. Hobby, J.