Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-05
TEXAS HIGHER COURTS.
synOpses of Decisions Rendered at the Present
Austin Sitting


Austin sitting.
Correspondence of the Gazette.
AUSTIN, TEX, May 2.-The Sun Mutual n
from Gray son county Opinion by Gaines. Suit
on an insurance policy. Policy stipulated that
persons sustaining loss by damage by ire
shaH forthwith give notice thereof in writing to
the company, and as soon thereafter as possible
tney shall deliver an account of their loss and
damage with all the particulars as fully detailed
as the nature Of the case will admit and
they shall accompany the same with their oaths
OF animation declaring the said account to oe
declaration shall be produced the loss shall not
be payable" The insured property was de-
stroyed by fire October %. 1884. The in
was deficient, December 2s, iss4 The
company agent wrote aDpellees letter jan
nary 10. 1855. to the effect that the proofs OF loss
were unsatisfactory, even il the company were
liable under the policy; that the company, how
ever, denied any responsibility by reason OF mis-
representation, and for other reasons which
would be fully set forth in answer to any suit on
the policy; that the company reserved all OBJ
1ect1ons to recovery in any form, and expressly
refused towaive any rights under the poncy,
and therein notified appellees and left them to
pursue such course as they might deem expe-
dent No other proof of loss was furnished TO
the company, and the court charged the my
that the letter was waiver of the proof OF lGnss
Held: The letter was 4 waiver, that the proqtef
loss is only serviceable on basis fqEfan
amicabls adjustment, and it becomes USELESS
ceremony where the insurer denies all LIABILITY
under the policy. (6l Texas. 2S7; 40 Wisconsin,
7lj How UNITED Statesl. 4O3; rs Graft, S6oA Us
Illinois, 466. Whether the letter was a walvef,
or not was question of law and not Of fact for
the jury. The company asked the court 70
charge that by the exercise OF reasonable dbl
gence the insured could have furnished the
proofs of law at earlier day than that which
they were delivered they should find for defend
ant. Held that as a rule that when the policy
requires the proof of loss to be made within
specified time a compliance With the re-
quirement is a condition. precendent TO
while it does provide that the proof of loss shall
be furnished ''as soon possible and that the
loss shall not be payable until the proofs are
furnished, it does not expressly stipulate that
failure shall work forfeiture. The objection
was that the proofs were not satisfactory, not
that they had not been furnished in time. The
a further attempt to comply with the terms OF
the policy. Judgment affirmed.
W. F. Reed vs. Hardeman county; from Bay
lor county. Opinion by Henry. suit by
Hardeman county against j. R. Williams,
alleged to be a citizen Of Texas, and w. +.
Reed, alleged to be q citizen of Missouri, to
recover possession Of certain lands and cancel
deeds, and for damages. 1t is alleged that de-
PENDANTS by fraudulent continuance procured
the deeds from the county to Williams, who
subsequently conveyed to Reed. Williams dis
claimed all interest and prayed to be dismissed
He did not otherwise appear or defend. On
the 18th day Of March, 1887, Reed filed his petit
ton and bond for removal into the Federal
court setting up his citizenship and also that the
amount in dispute exceeded $500. The court re-
case and rendered judgment for plaintiff. Held:
the act of congress of March 8, 1887, corrected
and re-enacted August 3, 1888, is decisive OF the
question Of removal in this case, that it is un76
necessary to decide to what extent Williams ret'
manned party to the cause upon the issue OF
damages after his disclaimer was filed, or no
CONTROVERSY remained between himself and
plaintiff with regard to the title the cancella-
ton of the deed. Such controversies existed
between, and were wholly confined to- plaintiff
and defendant Reed, who were citizens Of differ
ent states and could be fully determined be-
tween them The PLAINTIFFS petition showed
The entire record may properly be looked to as
certain value of the matter in controversy and
to aid the petition for removal Inns. Co. vs.
Pechner IS U. s., 1867 The allegations in the
petition that the matter in dispute exceeded
$500 in value were not inconsistent with other
statements in the record showing that 1t ex-
ceeded $1,000. 1t was error to try the cause after
the petition and bond for removal was fled.
Reversed and remanded.
]. G. Beatty ct al. VS.. B. T. Masterson; from
Bandera county. Opinion by Henry. Suit by
appellee against surveyor of Bandera county
and appellant to compel the surveyor to record,
and deliver the field notes Of certain s1<fsTs
made for appellee. The lands were ch2rged TO
be part of the public domain and subject to be
located by certain certificates owned by appellee.
Plaintiff on the 18th day of September, 1882, de-
livered the certificates to the surveyor, and at
same time made in due form written applica-
ton for their survey the lands in controversy.
H. 1881, of twenty land certificates, which were
on that date delivered by deputy surveyor of
Bandera county At the same time the
deputy surveyor delivered to the county
veyor blank sheet Of paper containing the fol-
lowing signature or Endorsement; IL. L. Lacey,
agent for G. ]. Jones'" The surveyor testified
he had informed the deputy that there was
vacant lard in his county sufficient to put in
twenty certificates; that he received the blank
to be filled up by him or an application when he
returned to his county where he had descrip-
ton Of the land; that upon his return home he
wrote out above the signature an application for
the land now in controversy and filed and re-
corded it September u, 1881; that he surveyed
the land in June, July and August, 1852. and
in November, 1882, and forwarded to the
land Office. 1t was not shown by whom
the blank paper was signed nor that G. j. Jones
ever owned any interest in or had possession Of
the certificate. All OF said certificates, how
ever, were conveyed to Myers, March d. =, ISL 6y
PENDANTS Hart g. Shorty, May ~, lSS2, each re-
citing that he had been located by me in the
public domain of said state" Appellants as
sign as error that plaintiff failed to show that
the land in controversy was unapproPriated
public domain and subject to be located by him.
Held. Applications for the survey of public
lands are regulated by articles, Revised Statutes
1894, 1856 and 1896. The statute does not require
that the application be made by the owner OF
certificate 1t requires that the land certificates
ITSELF shall be filed with the application. IAE
possession of a certificate and the ahtHty
To deliver it to the surveyor with the appGca-
tion for its survey is sufficient authority to the
surveyor for him to receive and file the appli-
CaLlOn ana ceTlluCdIe duu MAKE Tue survey
II the possession of the certificate is wrongful
and the location unauthorized the rightful
owner alone can complain. notwithstanding
such want of his consent and authority the
owner OF the certificate will own the land To-
Gated under it. II the possession OF the GER
tifcate has been wrongfully obtained and the
location has been made against the will Of the
owner he may, no doubt ,disavow it and be re-
neved from its effects but il in any case he
chooses to retain the location and acquire the
land others present have no right to complain.
There is nothing in the law and no
good reason exists forbidding
Surveyor from writing out the ap-
plicstion addressed to himself for the survey OF
the certificate when he is requested to do SO by
the holder and when the land applied for is
designated, even in general way. by such
holder. The only purpose of the articles of the
statute referred to was to furnish accessible in
formation Of what land had been previously ap-
propriated so that others could make their Sc
lections out of what was left. There was moth
ing in the mode or substance OF the proceedings
in this utterance that have any tendency to de-
lay plaintiff or to deprive him of the exercise of
that right. Judgment reversed and rendered
for appellant.