Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-04
SUPREME COURT.
DECISIONS RENDERED AT THE
PRESENT AUSTIN SITTING.
The Findings-Hon. John W. Stayton. Chief
Justice; r. Il. Gaines and John L. Henry.
Associate JudSes-C. :. Morse, Clerk.

Bosque. The land in controversy was
granted to appellant, but appellee claims
land by virtue Of 4 deed given him by the
sheriff, the property being sold at execU-
ton sale to satisfy 4 Judgment against ap-
pellant. This action was by appellee to re
cover the land. Appellee was connected in
no way with the Judgment under which eX-
ecution issued, but was Simply purchaser
al execution sale. /. The levy may nave
been excessive, the land may have sod for
a sum greatly less than its value, appellant
may have had ample personal property sub
iect to execution 10 satisfy the judgments
and have been deprived of an opportunity
to point it out for levy, and he may have
requested the officer 20 sell the land in
small quantities, but without something
more, all these facts, if proved. would pre-
sent no defense to this action. Ii facts
exist for setting aside the sale, this should
have been urged in a direct proceeding
brought for that purpose, making the pro
per parties. Such facts can be of 10 avail
in this action, appellee being simply pur-
chaser. Affirmed. Stayton, c. j.
Missouri Pacific Railway VS.. ". J.
Long; from Bell. l. Appellee sued and re-
covered for injuries inflicted under the fol-
lowing circumstances: The train on which
appellee was riding was mixed one, con-
sisung Of freight cars with coach, which
was known as a combination car, having at
the front end compartment for baggage
and express matter, with wide door IN the
side for receiving it from, and unloading 1t
upon depot platforms, while the rear part
was fitted for passengers with the ordinary
door platform and steps at the end. The
platform where the train stopped tas was
customary was about five feet high and
about even with the side door in the conf
bination car, there being about seventeen
inches space between them. The rear por-
Of haf -ry-,N yy-1. CT
site where the platform was low, so pro-
vided for passengers leaving or entering
the cars. The passengers on the night in
question remained III the car without OBJ
lection until the train which they We're to
take whistled, when appellee, having his
arms filled with packages, passed forward
into the baggage compartment, and IN at
tempting to step from the cars to the plat
form missed his footing and falling be-
tween the cars and platform was injured. 1t
was in the night time, and as to whether the
moon was shining and whether there was
light on the platform, the evidence was
conflicting. 1t was in evidence that the
passengers at this station usually departed
from the cars as did appellee, the con-
ductor testifying that he tried TO
stop them at0 first but could
not do so, and that for some time before
the accident, passengers had left the train
by the side door as had appellee, and he had
ceased to forbid it. Held: The evidence
supports the verdict In permitting the
general use of the side door of the coIubi-
nation car by the passengers as means of
egress appellee was led to believe that the
way provided was a safe one. Because
safe way is provided it does not follow that
passenger is bound at his peril to ascer-
tain the fact and to avail himself OF that
way when he sees that another way appar-
emily safe is in general use by the paSsen-
gers with the tacit permission of the SER
wants of the company. Such use and such
permission are calculated to induce the be-
lief that the way is provided in part at
least for the egress of passengers and that
passenger is expected to make use OF II
should he elect to DO SO. No reversible er
ror. Affirmed. Gaines, j.
A. f. Carothers VS.. George Covington;
from Lampasas. l. Where both parties
agree to that effect a cause may be rein
stated. Former dismissal set aside and
cause reirstated. Per curtain
Gulf, Colorado and Santa Fe Railway VS..
J. F. Day: from Wise. Motion to file trans
script. /. A transcript may be filed after
its regular assignment, both parties agree
ing thereto. Transcript ordered filed. Per
curiam.
Gulf, Colorado and Santa Railway vs.. E.
B. Peters; from Wise Motion to file
1.
record a transcript may be filed after its
regular order Motion granted. Per
curiam.
Ellen Palmer VS.. r. L. sBennett: from
Wise. Suit by appellee on veudor's lien
note. l. Appellant answered, denying the
existence OF the lien, and alleging that
about the I'd day of August, 1884, one
William Meredith pre-empted the land as
vacant public domain. and caused survey
to be made and the field notes TO be re-
corded in the county surveyors office; that
prior to December 70, 1855. he conveyed
the land to w. Il. Meador, who, Joined by
his wife, conveyed it to +. G. Palmer de
ceased husband of appelan) December
80, 1885, and that on July 10, 1887, said
Palmer caused another survey to be made,
and having filed an affidavit as q pre-emptor
in his own right, on August 3. 1857, Palmer
procured a patent to the land from the
state August 26, 1887. II was also further
alleged that the land was vacant public do
main when Palmer obtained possession,
and when Neador and wife transferred the
same, and neither appellee nor Meador and
wife, nor Maddox from whom appellee
purchased the note) ever had any title TO
or occupied the land and improved 1t for
three years, but had abandoned 1t, and that
Palmer had procured title in his own right.
Held: The court erred in sustaining ex-
ceptions to appellants answer. If the
vendor has no valid right or title, which
will vest in the purchaser, no lien can be
said to exist to secure the payment of the
note. AZ Tex, 34!; 66 Tex, 81. 1t was
not necessary for the plea to be sworn to, as
the plea the land was vacant public domain
at the time of the alleged sale, is not such
plea of failure of consideration as must be
sworn TO. Reversed and remanded Hobby,
p. J. Section "a" Com. App.
Ullman, Lewis & Co. vs.. J. ]. Chren-
show: from Tom Green. l. Appellants at
tached and sold q stock of goods alleged to
be the property of NJ. W Elliott. Appellee
claimed the goods by virtue OF sale from
Elliott to himself prior to the attachment.
The court reviews the evidence and holds
that there was manifest intent Of Elliott TO
hinder and defraud his creditors, and that
appellee had sufficient notice of said inten-
ton to put him on inquiry, and that the
Judgment in favor of appellee for damages
in unwarranted by the evidence. Reversed
and remanded Hobby, p. j., Sec. A.
John Alvey, next friend Silas John Alvey
VS.. G., L II. and $. A. railroad; from BeXar.
l. The petition alleged that Slias John
Alvey was d minor ten years OF age and
that he was living at section lS5 on appellee
railway and that at Converse, station on
appellee's railway, he made contract with
a conductor in charge OF a train to convey
him TO said section house The petition
also alleges that trains frequently carried
passengers to said section house. Ii was
further alleged that the conductor in charge
of said train failed and refused to stop said