Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-10-19
SUPREME COURT.
synopsis of Decisions Rendered at the Present
Tyler sitting.

W. G. Paxton, from Shelby. Trespass
to try title. l. Where land claimed As 3
homestead is levied upon by attachment
and sold, IN suit by the purchaser at
such sale to recover same the party
claiming same as u homestead is not pre-
cluded from setting up the Homestead
exemption as defense. .. a party Who
pleeds his title specially in suit of tres
pass to try title is confined in his proof to
the title SO pleaded. But the rule does
not apply when the plaintiff. in addition
10 the statutory averments. or a detend-
ant, in addition to his plea of not guilty.
has pleaded the statute of limitations.
Reversed and remauded. Gaines, j.
Tom Lockett vs.. Fort Worth aud RIO
Grande railway; from Hood. Suit for
damages. l. The exception to the pc
tition on the ground that appellant joined
his minor children as Co. plaintiffs,
was properly sustained. = There De-
ing proof to the effect that appellant aud
his family were made sick by stagnant
water gathered hard by plaintiffs resi-
deuce through the negligent construc-
ton of appellee's railway, the court
erred in instructing the jury TO find for
defendant. 5. After this instruction
plaintiff had right to take nonsuNI
and on motion by the plaintiff after
ward to reinstste, the court erred in re-
fusug the motion. Reversed and re-
mauded. Staytou, c. J.
George W. Hill VS.. Samuel Kerr ct
al. from Clay. Trespass to try title
l. The court erred in refusing TO admit
in evidence the depositious of the land
commissioner to the effect that copy OF
the field notes of the land in controversy,
from the surveyors office, certified to by
the surveyor of the Montague land dis
hair han nffaRha1
Montague for judicial aud other pur-
poses) which was fled in the land office
on November %. 1872. 81. The court
also erred in excluding a certified copy
of these field notes, duly certified 20 by
the commissioner of the general lana
Office. The return and filing Of the Held
notes was within the time prescribed oy
the act of November 81, 1871. 3. Nhen
| the time within an act is to be done, Is
| to be computed from and after certain
| day, the rule is to exclude that day
| T49 Tex. So. Reversed aud remanded-
| Gaines, J.
| r. b. Church VS.. Dan NaSgoner ct
| al. # rom Wichita. Trespass to try title
l. IL was error to permit defendants 10
read in evidence letter from plaintiff TO
his grandfather widow asserting that
he had no claim to the land in contro-
| yersy, The error was cured, however,
| by an instruction charging the jury TO
| disregard this evidence. =. The burden
| of proof is upon the party pleading the
| statute OF limitations as to that issue. D.
| To take the answer to an interrogatory
! as confessed, where same Is evasive, the
question asked must distinctly emoody
the fact desired to be proved. Affirmed.
Henry, j,
w. j. Mckee VS.. Jno, 2. Anderson
from Navarro, trespess to try title. l.
When it is the purpose OF suit not only
| 10 recover possession of land, but 10 es-
tablish title, or to hear partition, and
when the decree sought will not only give
possession of the land, but by estoppel
settle the title 70 it, the well known rule
that a tenant cannot dispute the title OK
his landlord does not apply, though tne
tenant is estopped from disputing MS
landlord right of possession while tue
relation of landlord and tenant exists
2. A certificate of acknowledgment to
deed reads as follows: 'This' day per-
sonally appeared Jacob Presley to be the
person whose name is subscribed to the
| foregoing instrument and acknowledged
etc. - Held: Defective. The certihcate
should show that the subscriber was
'known' to the clerk, or was proved 10
be the actual subscriber by the oath OF
another party. Reversed and remanoeu-
Henry, j.
Chas. Dillingham; ct al, Receivers,
etc. etc. VS.. j. NJ. Scales ct ux. SUIT
for damages. Counsel for appellees in
in his closing argument to the jury SAID;
"Gentlemen, they talk about corpora
lions. What is q corporation? Go to
: New York city and there view Hunting
ton in his princely mansion, surrounded
by all that wealth can give. Tnere Is
, corporation. What does he care for the
lives of these boys? There is only one
thing to make him care, and that Is
! iury of twelve men of this county.
l To which language appellant excepted I,
when counsel further remarked: "en'
: III withdraw that part about MS man
siop.' Held: In view OF the fact tnss
the verdict seems to us perhaps exces-
5 siye, we are of opinion that remarks OF
counsel were calculated to prejudice the
minds of the jury toward appellants
s Reversed and remauded. Henry, j.
(, Franz Fake Brewing Co. Va. Ia
D Hirsh-From Dallas. l. A Judgment
rendered IN the state of Wisconsin against
appellee is imperative in this state, SER
vice being had on appellee through SONS
private person, in accordance with some
nroyision In the statute of Wisconsin .
II No error. Affirmed. Stsyton, Z. j.
M. j. Kennard VS.. J. c. Mabry ct al
From johnson. On rehearing. We INC
no reason for departing from our opinion
: in this case rendered at the Austin SIT
9 ting, 1890. Motion oVerruled. stay
a ton, c. J.
H. White ct al. vs.. j. Y. Wad'
;, dington ct TX from Ell Paso. On rehear'
= ing. The motion has been eareiuii!
considered and we adhere TO our we"
=, given at Austin. Motion refused. stay
p ton, G. j.
Bexar Building and Loan Associatior
VS.. Amanda Robinson; from Bexar. vi
. rehearing. No error in our opinio
;, rendered in this case at tina Austin term
70 1890. Motion overruled. Stayton g. J
Gunter and Munson VS.. Meade an'
y. Boman; from Terrant. Counsel OF
:. either side agreeing thereto. the trans
- script In this cause may be filed as OF tn'
- first day of this assignment. Stayton
c.. j. -
johnson, Reaves s. Johnson vs.. Chero
I. kee Land and Iron Company; irot
m Cherokee. There being an agreement o