Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-19
THE HIGHER COURTS.
SynOpses of Decisions Rendered at the Present
Galveston Sitting of the
Higher Courts.
SUPREME COURT .


J. W. stayton, Chief Justice, presiding; R. R.
Gaines and j. l.. Henry, Associate Justices
Correspondence ofthe Gazette.
GALVESTON, Ten, Feb. 16.-John
Fl Hanna ct al. VS.. Fritz Londewick eft
al; appeal from Lavaca county.
Walter Binkley died testate III 1852 and
applicable to the two tracts of land in
controversy in this consolidated action
the will contains the following provisions:
cit is my last will that my wife Eliza
beth be my executor of this my last will
and testament and of all codicilS thereto,
and that as such she have, hold and en-
joy during her full and entire life all my
property, real and personal, now owned
or hereafter acquired, etc. and that she
sell and convey or will and bequeath the
same according to her pleasure. The
will further stated though not in deroga-
ton of what proceeded that upon her
failure to make full disposition of said
property, all the rights, ETC., shall
descend to the four children of his wife,
Mary LOUISA Hanna, John Warren
Hanna and Silas H Hanna, and Emily
Baylor and to their heirs forever The
wife made a conveyance to her son
of a certain league of land
for valuable consideration. This passed
valid title being in accordance with the
power vested in her under the will and
passed valid title. The case of Barnet
VS.. Beturk is quoted: In that case a
father by will gave land to his son
Stephen, conditioned that if he died
without issue then the land should vest
in his other three sons, ''prOvided he
should not sell the aforesaid property,
which he may grant and assign as he
likes. 1t was held that the conveyance
which Stephen made to one Daniels
under the power given to Stephens, cut
off all right of the other brothers under
the will, that the fact of recOnveyance to
Stephen was unimportant, and that both
conveyances were voluntary was matter
of no consequence. IDS Pa. st. 80.
Held: The viii of Mrs Binkley, who
became Mrs. McElvay, would have been
a complete execution of the power con-
ferred upon her by the will of Walter
Binkley. The plaintiffs showing no title
in themselves it is unnecessary to consider
further. Affirmed. Opinion by Stay
ton, c. j.
W. B. Hance vs.. J G. Burke; appeal
from Galveston Forcible entry and de-
tainer. The evidence conduces to show
that plaintiff was in possession of n farm
belonging to Hance, and that Hance in
February, 1886, in the absence of plain
tiff, took forcible and unlawful possession
of the farm and house in which plaintiff
was living with his family and in which
the effects sued for were situated. The
court below charged in substance:
l. That Hance, being the owner of the
farm, was entitled to its possession, and
had the right to its possession if ne
could do SO without committing
breach of the peace.
2. That if Hance got possession
by intimidation, it was his duty to send
Burke goods to him, but if he got such
possession peaceably and without intimi-
dation, it was Burke duty to go for his
goods. 8. That If Hance took possession
Of the house by intimidation and de-
tanned any of Burke IS goods and they
were damaged by sven detention, he
would be liable for such damage; but
if he took possession of the house with
out intimidation and properly stored the
goods and they by time became damaged
before he delivered them to Burke, then
he would not be liable for such damage
as they sustained by reason of the
lapse of time. 4 That if
Hance did not return all
of Burke s goods, he was liable for the
value of such as he did not return. The
errors assigned relate principally to the
charges of the court and complain that
the cause of action was reached as a tres
pass when in fact il was in the nature of
detainer. Held: The charge of the court
was correct. Affirmed. Opinion by
Henry, a J.
Robert Mayes VS.. John Manning ct al;
appeal from Freestone county. Trespass
TO try title Plaintiff, Robert Mayes,
was the only SON of T. G. MaJes and
Catherine Boyd, married in 1912. t. G..
Mayes purchased the land in question,
paying for it with his wife S money
After the death of the first wife in 1858
he married again aud resided continu-
ously on the land until his death in 1886
Plaintiff knew how the land was pur-
chased and paid for as early as
1874 ana in that year was threat
ening to sue his father for if
The court reviewing the record say: The
plaintiff having alleged title and estab-
lished it by proof Of resulting trust
defendants were properly entitled to the
application of the doctrine of state de-
mand under their plea of not guilty
The plaintiff had the same right to sue
before as after the death of his father,
and having neglected TO do so ut the
proper time the statute of limitation has
barred his claim. The doctrine is Nell