Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-04-15
THE HIGHER COURTS.
Synopses of Decisions Rendered at thu
Austin Sitting of the Higher
Courts of Texas.
supreme Court and COURT of Appeals Bull
ings-Eruln vs.. The State, from rarrans
county, Reversed and demanded.
SUPREME COURT.
Correspondence of the Gazette.

SUPREME COURT.
Correspondence of the Gazette.
AUSTIN, TEX, April 1O.-A. B. Hardin,
guardian, vs.. W. J. Sparks ct al, from
Montague county; action Of trespass to
try title A deed was offered in evidence
conveying the land in controversy to Mrs.
J. Mcmillan, who WAS the wife Of Neil
Mcmillan; dated August Is, 1868
Neil Mcmillan, the husband, was 8 wit
ness to the deed and proved it up for
record. 1t was objected that the deed
was improperly authenticated for record.
Held: That prior to the passage OF the
act May 10, 1871, as the husband
was incompetent to testify, with respect
to the interests of his wife, and the deed
to his wife being practically one to him
self; that the deed was not properly
proven for record. A party who seeks to
raise the question OF the competency OF q
witness to testify as an expert, should
show in bill of exceptions or in some
proper manner what examination, or that
no examination, WAS made TO test the
qualification of such witness. Other
wise this court will presume thst
the court below, ascertsined by proper
inquiry, IS to the competency OF the wit
uess to testify. Affirmed. Filed April
10, 1888. Staytop, Chief Justice.
Houston and Texas Central Railway
Company VS.. G. B. Hestee ct al; from
Grayson county. In this case, being one
for damages occssioned by the loss OF
stock, the verdict WAS generally for dam
ages, without specifying any amount
for the different causes Of damages
alleged. Held: That the verdict
being general, and from it this court can
not know on what facts the Jury based it,;
snd there being no complaint OF the
charge of the court, the presumption
must be INDUCED that the jury in arriving
at the verdict considered in estimating
damages only such facts ss under the
charge would FIX liabilities on the appell-
ant. Alfirmsd. Filed April 10, 1883.
Stavton, G. j.
,Ulman, Lewis & Co. vs.. A. ]. Jasper ct
al. question is raised in the record of
this case, that is one Of first impression.
1t seems that the index of the records of
Judgment liens WAS objected to because
the names of each plaintiff AID Of each
defendant in the Judgment did not appesr
on the index es required in liking Jucg-
ment liens Rev. Statutes 3l5S- 1851 r.
This is not necessary to be passed on IL
this case, but it is remarked that
where rule Is given by
set of the legislature, courts are not st
liberty to disregard 1t, or to attempt to
avoid its effect when applied to a state
Of fectS contemplated by il. The case Is
reversed on error in the charge, in SUB
hitting to the jury the legal effect of coz
comitant facts on conviction with q desd
having the operation OF Q mortgage OF the
homestead. Reversed. Filed April 10,
1885. Walker, Justice.
give ct al vs.. James S. Moody, from
wichita; action Of trespass to try title;
sale of property under execution on 8
lien acquired by fling So abstract Of the
payment. The abst.act OF the payment
had not been indexed. Held: Judgment
liens are regulated by statute. AS the
lien is the creature of the statute, 1t fol-
lows that until the conditions to the lien
fixed by the statute have been complied
The indeXing so carefully described and
provided for cannot be dispensed with by
the court. The terms used in the statute
are simple snd clear. The meaning and
intent ere expressed. 1t is not for courts
to question the policy Of the law they
can only apply it to stste OF facts ascer-
tanned when rights are litigated and the
jurisdiction of the courts invoked. AT
frmed. Filed April 10, 1888. Walker,
Justice.
The Franco Texan Laud Company vs..
A. r. B4urselet; from Parker. On the
face Of the certificates OF stock Of The ap-
pellsnt company. is stipulated "This
certificate is receivable at the flee OF the
company in Texas, in payment for the
compsDy's lands st prices fixed SO IS to
secure 6 pro rata division OF the
lands or of their value among the
stockholders" Lands were acquired by
the company, schedules If the
land and OF rates were made and kept
in the offlce. A holder Of such stock GER
tifcates on presenting such certificates
at the Office Of the company and designG-
ting from the public schedule Of the COM
pany of the lands desired in exchange for
his stock at the rates specified, is entitled
to receive such lands and have title there
to made to him. A refusal by the officers
of the company to receive surrender OF
the stock, the holder has right of
action for specific performs ce.
Such suit is not one for PARTITION, and it
is not necessary to allege or to prove that
such public schedules were so adjusted
IS to lesve with the company sn equal
pro rata of lands for the remsining Stock
holders. Affirmed. Filed April 10, 1883.
Walker, Justice.
Fortram ct 81. v5. killebreW; from
Falls. The question in this case is. can
the executor under the ficts alleged, be
permitted to hold the land, purchased
by him at sale Of the came to satisfy
claims of the creditors of which he WAS
the Independent executor.) The execu-
tor was g trustee bound to exercise good
faith and fsir dealing snd 10 preserve to
the devisees so far rs this could De done
without injury to the creditors, that part
of the estate most beneficial to them.
Cases msy arise in which an executor,
who is surety for his testor might be per-
mitted to buy property Of
the estate when sold to psy
the debt for which he WAS surety,
but the facts alleged in this petition do
not present case in which any court
would be authorized to grant such per-
mission. The demurrers to the petition
(the case in the lower court went Of on
demurrer cannot be sustained on any
conceivable plausible grounds. Reversed
and remsnded. S:syton, Chief Justice.
Filed April 10, 1888.