Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-04-16
Supreme court.

Warren Garrett ct al. vs.. G. W.
Weaver, from Kinney county. Action by
appellee to recover l60 acres of land
embraced in tract Of $40 acres,
patented 10 appellants December 10,
1888. Appellee bought the land under
the provisions Of the act Of
July IA, 1879, General LAWS,
Special Session, page 48l The
evidence shows that the land in con-
troversy, at the date Ct the passage Of
the act referred to, was part Of .
seperate tract then unappropriated and
embracing several thousand acres,
which may have been appropriated
subsequently by land certificates
until not more than GAO acres
of the separate tract remained
unsppropriated. At the time the appellee
attempted TO purchase such state OF
facts would coGfer on him no rights to
purchase under the act. The sp-
pellee shows no facts authorizing him 70
recover the land. Reversed ana remand
ed. StaYton. c. j,
Bradley vs. DerOChe; appeal from PSr-
ker. Action by the appellee TO recover
100 acres OF land, she being the surviving
widow, snd the lar d being set apart to
her by the Probate court as
homestead. Dsfeu dant was in pos
session under lease from the
deceased husband; he resisted the plain
tiff's right to recover by denying that size
wss the widow, and alleging that she dId
not live with the deceased husband SIS
man and wife on the land at the lime of
his death; thst in 1875 she had abandoned
her husband in her own wrong and lived
apart from him until his death in 1884
To this defense the wife old not reply.
Held: That the petition having set out
in full the f4CIS constituting plaintiff
title, and the invasion by defendant OF
her rights, the defendant could not have
been misled as to the purpose of the suit,
Notwithstanding the petition was not in
dorsed as to try title. That with
out a reply to the special matter
of abandonment, the plaintiff WAS
entitled of right to introduce testimony
denying abandonment of her husband
and explaining her absence so as to con-
ment of her home. Affirmed. Walker,
justice.
Nye ct al. vs.. Gribbell; from Wichita.
1t is competent for the plaintiff in an &C
ton to try title, to frame his petition with
J title should prove to be only mortgage.
But such amendment must set out facts
ss q basis for foreclosure. In this case
the plsintif merely prayed for
foreclosure, If the court
a mortgsge. TLe1e WAS no allegation in
the pleading Of the amount of indebted
ness secured, and for that error the judg-
| ment is reversed and remanded. Walker,
justice.
Counts vs. Neer; from Parker county.
A party cannot reject the terms of con-
tinuance offered oy the court on his sp-
plication, and go to trial, and take the
chances Of verdict In his favor and then
ask revision OF the ruling Of the court
on the merits OF his violation for contin-
uance. Affirmed. Staytop, c. J
Eskln VS.. Scott ct al, from Concho.
Suit by appellee sgsinst the appellant,
who had entered into written agree
ment to buy cattle. The agreement,
among other things, contained this stipu-
lation: 1t is agreed by said parties that
the first note OF $4,000, due in sixty day
from the date hereof, is to act as for
feiture, and be forfeited by said Elkin in
the event he ebaudons the trade. TIE
trade was abandoned and the suit WAS to
recover ON the note mentioned, which it.
self contained clause identical with thal
of the written agreement, as to forfeiture
IN case of abandonment of thet trade
Held: That the sum Of money for which
the note WAS given was liquidsted dam
ages and not penalty, and that plaintiff
Wss entitled to recover the amount stipu
lated TO be paid. Affirmed. Gaines
Justice,