Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-30

cept chat etc., indicate that person may
lawfully hold any Office and in addition thereto
either Of those enumerated. Affirmed.
A.W. Tale VS.. W. II. Wyatt, from Llano county /;
opinion by Stsyton, G. J. Appellant sued for
425 acres of land, part of the Hill grant of 1886
and alleged that appellee located a 1880 acres
certificate in two surveys, one for himself on
land adjoining the land here sued for, and the
other for the state over the Az acres. Appellant
disclaimed and answered by demurrer, etc.
Judgment on disclaimer for appellant, but the
costs were awarded to appellee. Held: Cor
rect; on the face of the petition plaintiff had
cause of action against defendant, the cause OF
action was against the state, If any there was.
Plaintiff never had asserted any claim to it and
the costs were properly awarded. Affirmed
Samuel c. Fernandez VS.. Casey & Swasey,
from Comanche county; opinion by Henry,
J. Fernandez & Alderman, q firm in Comanche
county, discon tinued business being indebted
to appelles. Alderman took up his residence in
Colorado and Fernandez travelled for about six
months and then settled in Ell Paso, Tex. Ap-
pellees obtained Judgment against the firm in a
justice court and levied on real estate in 81
Paso belonging to appellant individually. This
suit was brought to enjoin the sale of the prop
erty. and it is contended that the Judgment hay-
ing been rendered upon citation by publication
is void. Held: The facts show that Fernandez,
although temporarily absent from the state,
never acquired donicile elsewhere, and under
our statutes the service of process by puDlica-
tion was sufficient to give the justice court the
jurisdiction necessary to render Judgment
against him. Again it is claimed that the judg
ment was against the firm and could not be
forced against the individual. But the entries
in the Justice record show issuance of service
against the individual partners and with the in
diligence shown to justice court proceedings it
is held that upon the judgment rendered in this
case, upon the preliminary proceedings, execu-
ton could properly issue against appellant.
Under the decision in 81 Tex. 1872 money
Judgment can be rendered on dissolution of the
Injunction, the parties being left to prosecute
their former remedy. Judgment is hereby rem
dered Tor 10 per cent. damages and costs and dis
solution OF Injunction,
N. ]. Frost ct al. vs.. VIM. Wolf ct al, from
Williamson county; opinion by Stayton, G, j.
Action in trespass to try title for one-third of
two-thirds Of q league and labor, by appellants
claiming title by virtue Of the transfer of one
third interest in the certificate by virtue OF
which the land was granted, madeto s. NJ. Frost
IN 1852 This action was instituted in 1883. Frost
had died in 1866, and no claim had ever been as
serted before institution of suit. in AZ Aiken,
to whom patent had issued, conveyed the land
to Wilbur 4 Ellis. Appellees claim through this
conveyance. It was made in the firm name be-
fore notary public in Louisiana, according to
the laws of that state. The copy of the original
Williamson county and admitted in evidence
over objection. The ruling was erroneous, as
our law does not provide for the record Of such
copies; but the error is immaterial, as an exam
ined copy Of said instrument subsequently in
troduced was properly admitted. The first OBJ
lection TO the introduction of the latter instru-
ment, because the execution OF the original was
not sufficiently established, is not well taken, as
the evidence showed that the witnesses testify
ing to that fact were familiar with the signature
of the notary and witnesses to the original deed
and that the signatures to the original deed
were genuine, and the evidence goes even fuF
Their than this. The second objection was that
the deed was not sealed, as was then required
by the laws of this state, and it purported to be
q deed TO a firm and not the individuals compos-
ing it. The unsealed instrument. if not convey
ing the legsl, at least conveyed the equitable
title. And although at law the conveyance to a
partnership would not pass title, the Iule In
equity is different. Wilbur, assuming to act for
the firm, conveyed in 1347 the land
TO bridge. No authority was shown, but after
the lapse of thirty years such authority is pre-
sumed. 1t is of no consequence that the deed
was not properly authenticated, for 1t was
admissible as ancient instrument. The first
step TO enforce this claim was taken forty years
after Aiken had asserted . hostile claim by
taking patent. Frost in his lifetime never
asserted his claim, nor did he nor his heirs ever
pay taxes, nor inventory the land as part Of his
estate. The presumption arising on these facts
is that the contract was in some way rescinded,
and case is presented in which the defense of
state claim set up by defendants should be
recognized. Frost, to say the least, has been
negligent in asserting his claim, and it cannot
be held that he has equal equity with parties
who purchased from one holding patent. II the
equities were in all other respects equal priority
in time would prevail. but in this case the
equities based upon all matters to be taken into
consideration, are not equal, so rs to call forth
the action on the maxim above quoted. Frost
and those claiming under him were not vigilSnt
and another maxim: Vigilantibus non dor
mentibus lex subvenit may be spilled against
appellant. Affirmed.
Ell Parte: Charles Cox, from Camp county:
opinion by White, P. j. This is habeas cor
violation Of tbs local option Law In his precinct