Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-05

one but has been examined sufficiently 70
satisfy us that 10 states a cause ~ action
ana negatives the Idea that by the use
OF proper diligence appellee could nave uls-
brought this suit sooner The relation NJ
trust ANA CunudCrcc hy which the alleged
fraud WAS accomplished " charged 10 nave
continued up TO about the tlmc OF bring
ing the suit.
Tho third assignment OF error. under
which appellants submit two propositions
rs also believed TO be too general tn re-
quire consideration. Il reads as folows
''lhc court erred Ia its several rulings nd
verse 60 defendants Ia the admission and
exclusion OF evidence, nH shown by their
bills Of exceptions relating thereto. reserved
on the trial. whereby the jury was luiH.
led and the defendants prcIudced."
Without determining whether there was
error In admitting the testimony az set out
in THESE propositions, we ure Of opinion
that The verdict would probably have been
the same had it been excluded.
Tho hfth assignment, that "thc court
erred la refusing dcfcndnntg' requested
clargea, correcting alleged errors la the
charge IN chief u also too general to
be COns Tered.
The sutuclency OF the fourth ana only
remaiulng assignment found In defenlauts
divisions, an lcyclcd nt the charge of the
court As a whole. upon different grounds
without pointing out amy specific portion
submitted under the fourth and hftl as
siguncnt, cpmplalna Of tho charge Of the
court In relation 10 the statutes Of limlta-
tiOu but as no such objection 10 the charge
a. found Ia either or these assignments,
1t cannot be considered The second pro
position gumits The objection contained Ia
sigummt, that the court ignored the
charges VI fraud alleged In tho petition,
and Instructed finding for the plninuu
ON the ground Of mistake without proof
thereof" Thls specific objection 10 the
charge as "a whole h not sustained by the
record I'm the very beginning Of the
the burden was on plaintiff, Mrs. Ncfnoy
10 establish her right 10 recovery as
prayed for ANA that by THIS suit Hhe EouRht
10 set aside the Cunycynuced In question ON
the ground Of fraud IA their execution
and delivery, Again, In the concluding
part Of the charge. the attention OF the
jury ~ called ~ tho fact That appellee
could not recover unless her deed 70 Par
SONS ana wife had been fraudulently oh.
tanned and this suit brought within
reasonable time after the discovery Of the
fraud. We think. then. Il can hardly be
said that the charge as % whole ignored the
alleged fraud nor can II be said that IL
instructed a hndlug for plaintiff below on
the ground OF mistake without proof vt
fraud, a. the idea OF mistake In the exc.
cution OF the deed was not even limited
at either In the charge or Ia the evidence.
The Jury could have reasonably 40 under.
stood the charge, The evidence presented
two theories, nnd TWO only; inc one, thnt
Mrs Nernoy knowingly ana Intentionally
executed the instruments sought TO be
cancelled uB absolute conyeyancca and
that her claim 10 the contrary was un
after thought, the other, That the cXecu-
ti1u Of Tho INSTRUMENTS in tie form of absO.
lutte conycyanocs WAS The work of The SON.
in.aw who thereby deaigncdly took ad-
vantage OF the illiteracy mn Implicit CON
ildeucc OF Mrs. Nernoy tu procure her sigma
ture to papers which did not express her
Intention. Upon this the only real issue
I'm the case there WIS sharp c0uiiirt IA
the evidence, Alrg Ncrnoy tpstifyiug ln
support OF the latter thoOry ana Parsons
In Support of the former; u hcr testimony
was trne, that the deeds did not express
what she Intended them 10 express aud
what believed NJ tho tine they ala IKE
press, the testimony ~ Parsons Wns mnni-
fpsielly false, aud hls fraud iu procuring
tho deeds an irresistible Inference Mhiie
we think The charge on thls point was not
as full ns u probably should have been,
stli, a8 applied 90 the iaets Of THIS cApe'
we are not prepared 10 hold that it WAS
misleading 10 the jury. We do mot, there
fore iu yiCw Of the specific objection
taken TO- THIS charge as q whole, iepl
warranted lu selecting portions thprcut
which might not be- Technically correct as
grounds for reversing mo Judement.
The other propositions submitted under
these ghalgnmchts chnhente uir correct
ness OF the charge in reference 20 the
defense Of innocent purchaser, iutrrpoFrd
hy nppelnut, Miller, under his general
denial ~ the allegations made by appellee
on that issue. II appears from the record
that Parsons had borrowed Of Mrs, White
5000 and that appellants became his
mtretles on the note. Afterwards, IA order
10 protect himself Miller procured from
Parsons and wife n deed 10 the home
stead property by assuming 20 pay one
half Of Tie debt dpe Mrs White ~ he
parted with nothing Of value nc the time
aud was not placed ia worse position than
he had previously occupied we are or
opinion that ne cannot resist recovery
on this ground
IL follows from these conclusions that the
judgment must be affirmed sIhPillsNh