Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-17
SUPREME COURT.
synopses of Decisions Rendered at the Pres-
ent Tyler sitting.

Correspondence of the Gazette.
TYLER, TEX, Nov. 14-Panbendle
National bank VS.. Charles T. Emery;
from Wichita. Suit on promissory note
| and for foreclosure of q mortgage on
cattle. l. The creditors CT corpora
tion have an equitable claim upon its as
sets, which would follow them into the
hands of its stockholders, and others
holding under them with notice after
they had been partitioned and appropri-
! ateG by them "A Tex. 1856 The fact
that the Falls land and cattle company
was not lawfully dissolved by the sur
render of its property TO its stockholders
without the payment Of its debts. does
not affect the above stated principle. =.
The president of a national bank has au-
thority to bind the bank in business
ansaction, without d vote of The board
OF directors in the particular transaction
10 invest him with such authority. The
bank would certainly be bound by his
acts after receiving and converting the
proceeds of such a transaction. 3. While
article 1854 prescribes that bill of sale
TO cattle not actually delivered, but still
on the range, to be valid, must be re-
corded, yet this doctrine cannot be ex-
tended to include case where the prop
eTty has been appropriated by the pur-
chaser, so as TO absolve him from &C
counting for its value. A court of equity
under such circumstances will require
purchaser 10 do equity without regard to
defects attending the attempted trans
mission of title. 4. Letters written by q
bank president with reference to busi-
ness OF the bank, are admissible in evil
ha r..
trmed. Henry, j.
S. B. Callahan VS.. C. NJ. and Nancy
Houston. from Hopkins. Suit for re-
coTery of land. Where a husband and
wife began suit for the recovery of land,
sud pending the suit the wife dies, the
husband as temporary administrator of
her estate, has authority to further
prosecute the SUIT TO its termination. 9.
A deed TO land by the husband 10 the
wife would make the land her separate
property. 3. The rule laid down in 81
Tex. 34l, with reference to the rights of
parties growing out of improvement and
occupation of land Ia correct. and tine
doctrine therein expressed is again at
frmed. Staytou, &. j.
The State OF Texas ex rel. VS.. Robert
Alcorp, from Hemphill. Proceeding to
ousr appellee from the office of district
and county clerk because of wilful off,
cial misconduct in that he did not keep
his office ut the county seat OF the
county. Appellee defended on the
ground that Miami was not within five
miles from the geographical center of
the county and had not received the re-
ouisite two-thirds vote TO make it the
county seat. The vote for Miami was
also attacked on the ground that large
portion of the vote in its favor was
fraudulent, but the com missoners court
refused to go behind the returns. /.
The clerk should make up the transcript
as approved by the court, and cannot
insert copies OF documents even by
agreement of parties. .. The conduct
of appellee may have been unlawful,
and in the general sense may have
amounted 10 official misconduct, tut
this furnished no sufficient rea-
son for his removal from
office, unless this unlawful behavior or
official misconduct was wilful or cor
rupt. 8. The word wilfully iii the ordi-
nary sense in which it ie used III statutes
means not merely voluntarily, but with
a bed purpose. Oh Otto, Z. y. rep.
1902, "a Wis. Wilful when used in
penal statute means with evil intent or
without reasonable ground to believe the
act lawful. 18Th Tex, APP. 6+5, 18th
Tex. APO. AZ 2lst Tex. app. 200. 4.
The statute under which it is sought TO
Gust appellee is one penal in its char
acter, and must be construed as though
it were one defining Il crime and pre-
scriGius lis punishment. ). Appellee in
good faith, believing the county seat W as
where he kept his Office. could not be re-
moved therefron. 6. While the statute
providing for elections for county seats
is imperfect, We hold that it is the duty
OF the county Judge, rather than the
commissioners court, 10 ascertain the
vote and declare tie result, and to give
certificates 10 persons elected. Z. A
county judge and not the commissioners
court is authorized TO ascertain and de-
clare the result of an election 20 create
county seat. Affirmed. Stayton, c. J.
j. D. Walker vs.. Mary A. Sharp, ct
al :; from Tarrant. Suit by appellees for
recovery of land. /. The presumption
of u grant which arises from long con-
tinued possession and use of real prop
ertv, is a presumption of fact, and can
only bave controlling effect upon the
title when all the circumstances in proof
are consistent with the existence OF g
conveyance. G26 Tex. 6SS I 1t is not
adverse possession merely, but should
only be given effect when the circum-
stances in proof in the particular case
are sufficient to render the belief that
legal conveyance under W hich the posses
sion has been taken and held has in fact
been made. .. There can be no &C.
quiescence in ell adverse possession with
out Knowledge tnat such adverse
possession exists. Affirmed. Gaiues, J.
Il. s. Wrigh. VS.. J. 7. Rhyme; from
Delta. /. 1t being the last cali of the
third assignment and no briefs being
flied for either party this case will be
dismissed for want of prosecution. APP
peal dismissed. Per Curtain.
Missouri Pacific railway vs.. W. n.
Brazil; from Smith. Motion to present
an oral argument in support of q motion
for reheariug. l. There being no Ques-
tons Involved upon which the court
would invite discussion Or upon which
the coIrt is not fully informed, the mo-
ton is refused. OverruIed. Per Curtain.
Sampson Clitus vs.. J. ". Langford;
from Navarro. Motion 10 file record.
l. There being an agreement of counsel
that the record may be filed now as of
the first day of the third assignment, the
motion will be granted. Granted. Per
Curiam