Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-14
THE HIGHER COURTS.
Synopses of Decisions Rendered at the Present
Tyler Sitting of the Higher Courts.
SUPREME COURT.


Van Zandt. Suit by appellant to estab-
fish the existence and contents of lost
deed. The petition alleged loss of deed,
that cloud was cast upon her title, that
defendants were setting claim to the
land and praying for q decree supplying
said deed, perpetuating the testimony Of
its contents, quieting her title against
defendants and vesting title thereto IN
herself. l. 1t would seem the better
practice to allow cross-eXaminatiOn upon
the capacity of impeaching witnesses be-
fore allowing them to testify to such
character. It was error TO admit the
evidence of an impeaching witness, he
knowing nothing of the reputation for
truth and veracity of the witness sought
TO be impeached, i'll the community or
neighbCrhood i'll which lie lived. >. 1t is
hot common to reverse Il case on the
ground of the admission of Illegal teSti-
mony, there being no jury, and the cause
having been tried by the court; but where
it is evident that the finding of the court
was based largely upon such
illegal evidence, the admission of
the same will be held reversible error.
3. There was no error in admitting in
evidence the records of the probate court
of NacOgdOches county, containing the
inventory of the estate of Mrs. Amanda
Johnson, filed and sworn to by Barrett
and wife, i'll which was included rs prop
erty of the estate, the tract of land, the
subject of this contention, and Two other
tracts of land in the state. Reversed
and remanded. Walker, J."
r. NJ. Weaver VS.. Emmett Nugent ct
al; appeal from Red River. TreSpaSs
to try title. /. That specific acts of
fraud are necessary when transaction
is attacked as fraudulent is well Tecog-
nized. 9 The tenders OF the purchase
money made i'll the pleadingS of defend
ants followed by the payment into court
of the money bid at the sale and paid by
the plaintiff was Insufficient rs tender.
3. When q homestead is left and an
other is acquired, the acquisition of the
new is an abandonment of the old. 4.
The burden OF proof as to fraud is upon
the party alleging it. 5. The failure of
aA.-csheriff to demand Il levy of Il
S5Ffendant i'll execution before pro-
ceeding to sell the land would not
necessarily render the sale void.
Mere irregularities of this sort do not af-
feet the title of the purchaser, who is not
connected with them. 6. Where there
sheriff s sale, if there are but slight il
Irregularities or other circumstances at
tending it, calculated to prevent the
property from bringing something like its
reasonable value, it is regarded as mcon-
scienti0us i'll the purchaser to hold the
property so purchased, and his deed Will
be cancelled. No material error. At
frmed. Walker, j.
COMMISSION OF APPEALS.
Knights of Honor VS. Fannie WickSer;
appeal from Lamar. Suit by appellee to
recover $1,000 insurance OH her husband s
life, the policy being held in the Knights
of Honor lodge. The rules and re%ula-
tons of the lodge to which the appellee's
husband belonged, required that on nom
payment of assessments, a member by
vote of the lodge should be suspended
certain length of time, to be determined
by the lodge. The rules of the lodge also
provided that member should receive
thirty days notice of all assessments.
1t appears that few days after deceased
was suspended for nOn-payment hesentIn
the money. There was no proof that lie
ever at any time received notice ofssthe'
assessment. He was suspended by O1Sfsr,
of the dictator. l. The dictator of thee
lodge had not the power of suspension,
without Il vote Of the members to that eff
feet. If ne had such power it is clear
that the time of suspension could only be
fixed by vote. 1t does not appear that any
time was fixed by vote or otherwise.
2. Notice to the deceased 5 son was not
notice to him, it appearing that he and
his son lived several miles distant from
each ether. 3. The record and min
utes of Il private corporation are admis-
sible to prove the acts of the corporation,
but they are not the only mode of proof;
they are prima facie admissible, but may
be rebutted by parol. There was no re-
versible error. Affirmed. Coliard, j.
i. Y. Brown VS.. Il c. Bedinger; ap-
peal from Johnson. Trespass to try
title. In this case the decisive question
is one of boundary. After careful in
Spection of the record the court is of the
opinion that the evidence does not sup
port the verdict for appellee. 1t being ap-
parent that the land in controversy be-
longs to appellant, the Judgment will be
reversed and rendered for him. Re
versed and rendered. Collard, j.
w. j. Hurley VS.. NJ. s. Lockett ct al;
appeal from johnson. Trespass to try
title. l. The declarations of a husband,
when he acts as agent of his wife, by
authority, either express or implied,
made within the scope of his agency, in
reference to her separate property, are
admissible in evidence against the wife.
2. Whatever title q wife might acquire in
land by virtue of the statute of lin
itation, would be necessarily in common
with her husband. 3. The court erred i'll
refusing to permit appellant to 1ntrodssee
proof to the effect that Nelson CfnderS
whom appellees claim) and he had theE
boundary lines between them SUI Teyed
and that Nelson admitted after saidssur4
vey had been made that the land in pon-
troyersy belonged to appellant. 4. ME
court also erred in failing to charge AA
jury fully and correctly with reference fd1
the question of peaceable and al
possession. The court erred i'll ChEginsN
the jury that the admissions ofEAEsSS
Lockett's husband with reference to the
ownership of the land, he acting as her
agent, was not admissible, unless she
knew of and subsequently ratified same.
Reversed and remanded. Hobby. J.
John D Miller VS.. Emma H. Miller;
appeal from Mccullough. Suit by ap-
pellee for divorce. l. Where there is
conflict in the testimony, evahoA gh
this court, if the facts adducS ws*faaH
to it, might not decide the cal aSfb waS
below, jury having passed uttn tkei
same, this court will not reversst ecag 81
.s6the conflict, there being eyi8ence III
Sustain the verdict. Affirmed Mobby 8.