Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-15

| administrator Of estate Of Marv A. Maves- died
N county court in 1884 an exhibit asking for al
loWance otszz9 "tor extra Services The county
court refused to allow the claim and an appeal to
the district court was taken; cause numbered
| chapter IA, Revised Statutes for the Withdrawal
OF the estate from administration and the county
| court SO ordered On an appeal TO the district
court the same order was entered and on appeal
| to this court the judgment was affirmed. In
1855 Houston filed another exhibit In 1856
Mayes, appellee, fled in district court. against
| Houston, separate suit, No. 526, setting up
| proceedings to withdraw estate from administra-
ton; that the decree closing administration had
Deen afnrmed by the supreme court; that Hous-
ton had failed to deliverths entire estate to him
| as ordered, and setting up other demands and
claims against Houston growing ont of the ad-
minlstration, and not included in his exhibits
| The court consolidated the two cases, numbered
| as and SIC. Houston amended his pleading set
ting up divers claims against the estate not en-
| braced in any of his exhibits, but none of these
claims were filed in county court or presented in
Art. 2l9s, R. 8. Held: Il was necessary for
| ter II K. 5. presents the mode of proceeding by
! heir, devisee or administrator to withdraw an
estate from administration. After the consolida-
ton OF causes 40 and 526 In district court
ception to pleadings of administrator setting up
! his claims against the estate was sustained and
| cause 445 was dismissed. Cause 526 was tried
| and Judgment for plaintiff was rendered from
| which Houston now appeals. Held: Cause AS
was properly dismissed because the clause there
| in OF amount of estate had not been filed and
! docketed in county court. In the other suit
in order to have cause of action, either for eff
able when he made his exhibits, but were not
included in it for effects acquired by him after
his exhibit was filed and during the time covered
by the litigation, 1t was necessary for him to
have such cause of action ascertained and fixed in
county court. Until that is done the proceed
ings in county court are not final. 1t will be
proper to yet proceed in the county court to
compel the administrator to render a correct
final account Of the condition of the estate as
may before he files final account file
with clerk his servfceable charges for expenses
and attorneys fee. Revised Statute, articles
2l92. 2ls3; "a Tex. 509l Reversed and dismissed.
T. w. Folts ct. al. VS.. A. Il. Ferguson; from
Shackleford; opinion by Henry. Suit by appel
lees to recover undivided interest land, to
quiet their possession and to cancel a power Of
attorney made by them and the deed made under
it; Petition alleges that appellees, while
minors, with the owners OF the other interest in
the land, signed power of attorney authorizing
W. F. Ferguson to sell and convey the land, and
claim. Defendants pleaded that the state OF
Texas received in 1878 judgment against Eliza
beth A. Ferguson ct. al for 81, Az 6 and cost.
That Elizabeth A. Ferguson was then a widow
and mother of appellees, and owned the land in
controversy as her separate property. That in
1873 copy Of sand Judgment was filed in the
records of Shackelford county and thereby be-
came 4 lien on said land, and execution was duly
issued in Travis county and returned
beth Ferguson, while largely indebted to various
paities, made to her children, including
appellees-a deed Of gift on consideration of love
and affection, to the said land. and at the same
time decided to same parties, on same considera-
ton, all her other property except the home
stead. That said Elizabeth Ferguson and her
grantees aforesaid in May 1850, made TO said
William F. Ferguson said power OF attorney TO
enable him TO satisfy and pay off said judgments.
liant for 500 cash and Sl6si. 03. balance due on
judgment, and agreeing with appellant that title
should pass as completely as If same were sold
under execution issued upon said Judgment. !
That appellants paid off said judgment, on ao-
count OF said conveyance to them, and thereby |
became subjugated to all the rights OF |
the state, lust II the land /
and purchased by them at said sale, PIaintiff !
excepted to this defense, and the court sustained
exception. Held: The facts alleged show that |
the judgment in favor of state was a subsisting
lien on land at time Of its conveyance by the /
mother to oppellees. aud,by Ferguson's attor- |
ney to appellants. As the land was sold for ex- |
press purpose Of providing for discharge of said
lien, it follows that even If appellees, on ac-
count OF that minority, are not bound by deed |
to appellants, they yet cannot ANIMAL that deed |
OF recover back the land without restoring the |
money that went to discharge the Judgment
lien, with interest. IS Tex, 2gJ; 70 Tex, 74S;
81 Tex, 27S; "a Tex. l62. Reversed and re-
manded.
F. j. Newcomer ct. al vs.. State OF Texas; from
Travis county. Opinion by Gaines: Suit by
tax collector of Bandera county for regular
term of Office beginning in the year 1884, on ac-
count of money collected and not paid over. In
1886 said collector was reelected and gave a new
bond with only one of former sureties on same.
State obtained judgment for sllO9. IL. Defend
ants appealed on the ground that they were not
liable IN any amount and the state fled cross
argument claiming the whole amount. 1t is
conceded that during TWO terms he deGaulted to
Hsble, and if neither are liable for whole, what
isfhe extent OF liability of each. The several
accounts of said collector from comptroller's
department for fiscal years ending in 1885, 1887
and 1855 were read in evidence. On the account
Of first year he was indebted to the
state sl21sO4. The second and third
accounts were balanced and the last showed
an indebtedness Of $2lS9. 0S. 1t follows that the
liabilities of these appellants depends on ques-
fir. NnAN fhD aa-ia
properly balanced or not. The bond for second
term was approved by commissioners November
November q, 1885, the account shows there was
q balance due, SZ2j2.46. Subsequently the fol-
lowing credits were entered: December s, 1886,
deficiency claim, $40 90; same date, deficiency
claim, s2y6. 75 March g. 1887, draft SSH, SO;
pom 2-7, Sll09 IL. State claims last three items
Should have been credited to account of next
that both of the payments had been made with
tax money which was collected rolls of 1886
sponsible, it would not under facts Of this
case have established liability of sureties first
bond. The claim is thai money was appropri
ated to the credits OF the account ending juno
30, 1885. for which the wv holds primarily !
applicable to an account for which
LIABLE that is the account for year ending May /,
1887. If the default of one year is attempted to
be made good by the appropriation to its pay
and If the deficit SO produced in second account
Is in turn discharged by the application of
moneys due on the next succeeding account the
default would be attributed to the first account.
If the last be settled no harm occurs
If not then the payments properly applicable to
it must be SO applied. Such application neces-
sarily produces deficit in second account. and
gives the surites who responsible for its adj
iustment the right to have the payment wrong
fully appropriated to the first withdrawn and {
applied as they should have been in the first
instance. But in this case, if the account for
.he year ending May /, 1887, was balanced with
tut drawing upon taxes charged on the account !
IF the succeeding year, the su rites on the {
second bond have no cause to co mplain Of any
of tax moneys of that year.
It was their . right to demand
hat when any of such moneys were paid into 9
he treasury they should be applied to the credit
II the account against the tax collector upon I
which such taxes were originally charged until Z
hat account was settled, but that right closed
y soon as the account was discharged with
aSas not collected as taxes. The evidence
howH that the account for 1887 discharged 2
without resort to the taxes applicable to the
ountN next year. I
1t was error to give Judgment against defend
nts re- sven part of the states demand. Re- '
erseGand rendered.
Il ~, ,sS1, AtA,