The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-15
SUPREME COURT,

SUPREME COURT.
In the supreme court yesterday the
following cases were decided:
E. j. PEREGo VS.. G. G. WHITE EFT AL,
from Clay county. Opinion by
Gaines.
Case of trespass to try title. Plain
tiff below held through convey ance
from Cherokee county and defendant
proved that he settled upon the land
and established a residence upon it
with view to purchasing it before
the county made sale. Defendant
went to trial upon plea of not guilty
and claim for improvements in good
faith and claimed 100 acres, disclaim-
ing as to balance. Court instructed
for plaintiff; verdict and judgment
accordingly. Held: A purchaser of
school lands from a county upon
which an actual settler is residing who
has not been afforded an opportunity
to buy, takes it subject to the priv
ilege of presumption, and that the
settler upon a tender, ETC., may de-
mand a conveyance OF 100 or less as
he may elect. Baker VS.. Demming,
decided present term; II Texas, 1907
The settlers right to buy is superior
to that of purchaser and he is entitled
to same terms as to price and time
that purchaser has obtained. The
defendant here had no title by which
he could defend upon plea of not
guilty. Under his pleadings the judg-
ment below is correct.
Affirmed.
WESTERN UNION TELEGRAPH COM
PANY VS.. BELLA MURRY, from Dallas
county. Opinion by Henry.
Suit to recover damages for failure
to deliver a message. The con-
tract required notice to company of
any claim for damages within 60 days
after message was sent. Plaintiff pre-
sented within the stipulated time
claim for $50 actual and $500 exem-
plary damages, but by an amended
petition prayed for $4,000 actual and
$4,000 exemplary damages. The court
charged upon actual damage alone and
the verdict was for $500, but appel
liant contends plaintiff could only re-
ceive the amount of actual damages
set out in claim presented, towit $50.
Held, plaintiff ought not to be preju-
diced by his classification of the dam
age as actual and exemplary. The
claim of $4,000 in aggregate gave de-
fap1 ont =, otioo ran,1iroJ
Affirmed.
JONES VS.. PRATT EFT AL, from Clay
county. Opinion by Henry.
Suit to vacate an execution sale on
account of Irregularities and mad
equacy of price for which it was sold.
Land levied on was worth about
$1,000, and was sold for about $500
The inadequacy of price is not by itself
sufficient to require the sale to be set
aside. When execution sales are author.
zed and properly conducted made.
quacy of price alone will not be held
cause for vacating them, neither
should Irregularities be sought after
and created by the court, in such
cases, to avoid the sale. Confidence in
such sales must be preserved.
Affirmed.
BERRY BROS. VS.. NELSON DAVIS, & Co.,
from Travis county. Opinion by |
Stayton.
Appellees owed appellants $266.S0,
due December 8, 1888. Heidenheimer |
& Co., October 13, 1888, sued appel
ANTS for $16S.65, and garnished
appellees. Appellants are resident
citizens of Virginia and in the Held
enheimer suit were cited by publica-
lion. Appellees paid Heidenheimer
& Co. April 5, 1889, $210.70, which in
,ludes the judgment in the garnish-
nent case, interest and costs. APP
oellants sued appellees for said debt
If $26S.S0 and interest, and appellees
set up these facts as defense to amount
paid and rendered $64.45 as amount
lue to appellants. Held, the pro-
in punishment was in the
nature of proceeding in rem, which
gave the court jurisdiction to render
Judgment against appellants and
he punishment binding the firm
n the hands of the latter, although
appellants were residents of another
tate and were cited by publication.
% Tex, LA, and many other cases.)
Because of error in amount Of judg-
nent below which will not be correct
d from record cause was reversed and
emanded.