Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-20

minutes after the wreck a. to the state
of bis feelings with reference to his in
juries were admissible. 2. On the trial
a witness for appellee testified that
| Grant, general manager for appellant
railway, on the day of the wreck, IN his
hearing, reprimanded the section boss
for not going over the track the morning
of the accident. Grant left the state be-
fore the suit was instituted and did not
return until after trial. On motion for
a new trial appellant set up the fact
that it was surprised by the evidence as
| to Grants declarations, and attached
| thereto the affidavit OF Grant denying
that he ever gave utterauce TO any such
language. This evidence was material,
and under the facts the court erred in
not granting a new trial. Reversed and
remanded. Stsyton, G. j.
| Benjamin Murrell ct al. vs.. George A.
Wright; from Henderson. Trespass ab4ASI,
title. /. The court did not err, W46sSS-
ruling the plea of privilege Of he de-
PENDANTS to be sued in Limesto5 Scounty,
their place of residence, the lu9d in con-
troversy being in Henderson co Aiy. and
| this, even though the cause Of ac1 AEas
based on parol contract to convtyeAQ
appellee a part of the land. 2. B069
before and since the adoption OF the re-
vised statutes 1t has been held by tn =
court that a plaintiff who alleged thatsSY
was the sole owner of the land sued S@,
could recover on undivided interest,
46 Tex, 4l4; SO Tex. 22l; "A Tex $50,
| and many other authorities. The
| controversy growing out Of samSG
| transaction, aud depending on liakAf4g
evidence, two epara;e aud distinctfrarts
| of land can be sued for In one suit of
trespass 10 try title. Affirmed. Henry,
J.
W. W. Thompson vs.. Oscar Anderson;
from Delta. Motion to affirm on certifi-
ficate. l. the motion is In regular form,
but we find the case was refurnable to
the last Tyler term of this court, and for
this cause the motion can not be enter
tanned. Motion dismissed. Per Curtain.
r. II. Kirby ct al. vs.. c. F. Estell ct
al. from Tarrsut. This is second ap-
peal. See Is Tex. 4Si, per frat appeal ]
On the first appeal the cause was re-
versed. the opinion holding it proper for
the court below TO instruct the jury to-
fnd for appellants, plaintiffs belowyss
l. While land certificate owned by1
more than one person may be separately
located by each particular owner for mis-
individual benefit. it may also be located
for the joint benefit of all the owners, SO
located. as tenants in common.
2. In order to make location
inure TO the separate benefit OF
one Of the joint owners, so as 10 make
him the sole owner of the land located,
the facts must show that at the time OF
the location. it was intended to b. for
the benefit OF some particular owner.
and it must be designated, with GER
tainty, which one 1t was. and the act OF
such location must be consistent with the
rights of such owner in the certificate.
3. III the absence of evidence sufficient
to identify any particular location of q
certificate, Us being for the exclusive
benefit of some particular joint owner, it
must be treated as well for the
benefit of eli, rs tenants in COM
mon. 4. When the facts attending To-
cation or the want of evidence to the con-
trary, are such as to make the location
tnure to the benefit of all of the owners
of the certificate and constitute them
tenants in common of the land; that re-
lation cannot subsequently be abandoned |
by one of the parties without the consent
of his co-tenauts. At least 1t cannot be |
done without an abandonment Of that |
location. Verdict should have been tor |
appeilents. Reversed and remnnded. |
Henry, j.
East and West Texas Lumber Co. vs.. |
War; ell s. Son; from Cpshur. Motion for |
reheariug. The motion has been maturely |
considered, and there is no merit in the |
motion. Motion refused. Per Curtain. |
James Walsh IS. a. c. BraXton; from
Ell Paso. Motion for rehearng. L. |
We find no reason for departing from
our opinion of former day of this term.
Motion overruled. Per Curtain.
COMMISSION OF APPEALS.
Isham B. Ammons VS.. A. NJ. Dwyer,
ExrX; from Live Oak. Trespnss TO try |
title. /. The court correctly excluded
tax collectors deed describing the land |
as "four thousand acres of land OF a i
league and labor of land situated on the
west bank of the Atascosa creek in Live
Oak county originally granted to Eliza
beth Jordan lying in the shape OF a }
square,, because OF the insufficiency of .
description OF the land. 2. A deed
thirty years old or over coming from the
proper custody and free from suspicion
is admissible in evidence as an ancient
instrument without proof of accom- pa
nying possession. or any act of owner
ship corroborative of its gen uineness.
Affirmed. Collard J.
I. d. Morris VS.. Z. Cassidy; from
Hopkins. injunction suit by appellant
TO prevent appellee from changing and
moving au alleged public road. The
change was ordered by the commission
ers' court. /. The road changed by
order of the court, not belonging TO that
class of public roads defined by Art. 1859
r. S., the order was not one which it