Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-21
COMMISSION OF APPEALS.
Present Tyler Sitting-Important North
Texas Cases Passed Upon.
Correspondence of the Gazette.

Correspondence of the Gazette.
TYLER, TEX. Dec. &c. F. Collins
VS.. David Ballow ct al; appeal from
Wichita. Trespass to try title. l. In
trespass to try title, as in common law,
action of eiectment, plaintiff must rely
for recovery upon the title he had at the
institution of the suit. If he had 10 title
\ then, be must fail in his suit, though he
HAY have acquired after suit was brought
and before trial a perfect title.
r. Tex. IS. As Tex. 509.l ?.
The evidence is insufficient to
support appellees title to the land in con-
troversy. 3. So lon" as the trial court
commits errors in its rulings upon the
trial, or i'll giving the law to the jury, or
the jury disregaTds the law when cor
rectly given. and the trial court on pro-
per motion refuses TO grant a new trial,
the injured party has right to appeal
to this court Tor redress, and if it appears
that errors have been committed by the
court or the jury prejudicial to the rights
of appellant, new trial viii be granted,
Notwithstanding two new trials have been
granted to the complaining party i'll the
court below. Reversed and remanded.
Acker, p. J.
b. II. McAnnelly VS.. Word Bros;
error from San Saba. Appellant signed
q written acceptance of service and
waiver of issuance and service of process,
endorsed upon petition which had been
prepared to be filed in Il suit against lhim
by apDellees on two promissory notes.
When the case was called for trial appel
liant made a motion to quash the accep-
lance and waiver OF service, upon the
ground that it was made before suit was
filed, stating in mis- motion that appear
motion. Motion Overruled. Held: /.
: The court erred in oyerruling the motion.
The statute provides that acceptance of
= service and waiver of issuance and service
of process, made prior to the institution
of the suit will not',suppOrt a Judgment
by default. Reversed and remanded.
Acker, p. j.
John r. Jones s. Go. vs.. John o. X.
White; appeal from Tom Green. One
Broome contracted to build u house, fur
nishing labor, materials, etc, for APP
pellee. Appellants furnished BrOome
with lumber, building materials, etc,
which was used by Brown in the con-
strucfion of the house. Broome gave APP
pellants two drafts on appellee aggrega-
ting $1,000, on the back Of each of which
was the following language: ''This pay
ment is to be paid out of the $1,000 cash
payment due me when the J %. X White
brick building is completed according to
contract. - Each also recited that ii was
given for building material, etc.
These drafts were accepted
by appellee. Appellants filed
and had recorded itemized and verified
bills of particulars of the material fur
nished, and delivered to the appellee a
ropy of same. Appellee and Broome
afterwards entered into written con-
of nu ia
in which appellee agreed TO pay appel
lants the sum of $1,000, and received
credit from Broome for that amount.
This suit was brought to recover $1,000
and to foreclose the material man s lien.
Judgment for Sl2g0 against appellee, but
the court refused to foTeclose the lien.
Held: The court erred in not foreclosing
the lien. The Judgment is here reversed
and reformed, foreclosing appellants
lien. Reversed and reformed. Acker,
= P, j. =
Barbeth Eberiing, administrative, VS..
Deutscher Verein; error from Tarrant.
/. In an acton to rescind an executory
contract for the sale of land, after the
yendee had gone into possession and
made valuable improvements, it is well
settled that the right of the venQee to re-
cover the value of Improvements is not
dependent on the statutes regulating the
action of tresspass to try title, but on the
principles of equity. y Tex. 25G. >.
A bond for title executed by the
husband alone to convey the home
stead of himself and wife ar n
future day, is not void: Such bond
could not bind fine wife if executed by
her, and her signature would add nothing
TO its Strength, . If the wife should join
the husband in the execution of the deed,
the conditions of the bond would be COM
piled with, and the Obligee i'll such Il bond
might confidently expect that the wife
would do so. If the homestead should be
abandoned, or the wife should die, after
the execution of the bond by the hus-
band, specific performance of the con-
tract could be enforced against the hus-
band. No error. Affirmed. Acker,
z.
J. o. Johnson ct al. VS. Marie Schu-
macher ct al. ;appeal from San Saba Tres
pass to try title. /. 1t is a question of
fact for the jury to determine whether
improvements are made i'll good faith,
and the court should instruct as TO the
meaning of good faith. .. The poss-
essor must not only believe that he has
the superior title, but there must be rea-
sOnable grounds for the belief to amount
to good faith i'll the cause ii which the
term is used i'll the statute. 3. There was
no evidence 10 support the nnulng OF the
jury awarding the damages in four equal
portions, to Johnson ,McGill, Parrish and
Williams. 4. One tenant in COM
mon can maintain the action
of trespass to- try title and recover against
a trespasser or a wrong doer. His right
is not affected by the Revised Statutes.
8. When the statutes begins to run it is
not stopped by subsequent disabilities, or
of disabilities of Il person into whose
hands the title may fall. 6. Upon the |
filing of a disclaimer by Katy Williams |
the court should have given judgment in
favor of plaintiff against her for the land |
and unless she was shown TO have been i'll /
possession ut the time the suit WASH
brought she should have had iudg-st
ment for her costs. 1t does not |
appear that Katy Williams wfE
in possession of the land sued for, ara
Judgment viii be here rendered in faJSr |
of plaintiff for the land and i'll faEaf. or
Katy Williams for her costs and Msts ofd
appeal. As to the other defendisAs thetSS
judgment is reversed and reHfah6ssfs.e
Collard, J.
International and Great Norshern Rail