WRITS OF ERROR WERE DENIED BY THE SUPREME COURT OF TEXAS IN THE FOLLOWING CASES IN THE COURT OF CIVIL APPEALS PRIOR TO MARCH 13, 1896. [This list includes only the writs of error denied in which no opinions were filed. published in full in the Southwestern Reporters.] All others are FIRST DISTRICT. Adams v. Kaufman, 32 S. W. 712. Blum v. Brown, 33 S. W. 145. Chaison v. Beauchamp, 34 S. W. 303. Kolp v. Specht, 33 S. W. 714. Leach v Leach, 33 S. W. 703. Longley v. Warren, 33 S. W. 304. Montague County v. Meadows, 31 S. W. 694. City of Houston v. Hutchins, two cases, 33 S. W. Morris v. Davis, 31 S. W. 850. 269. Hartman v. Huntington, 32 S. W. 562. International & G. N. R. Co. v. Herndon, 33 S. W. 377. International & G. N. R. Co. v. Mulliken, 32 S. W. 152. Leon & H. Blum Land Co. v. Rogers, 32 S. W. 713. Mexia v. Lewis, 34 S. W. 158. Morrison v. Stauffer, 32 S. W. 722. Mutual Reserve Fund Life Ass'n v. Tolbert, 33 Stanley v. Hamilton, 33 S. W. 601. Western Union Tel. Co. v. Boots, 31 S. W. 825. Olive v. Sabine & E. T. Ry. Co., 33 S. W. 139. Wichita Val. Ry. Co. v. Peery, 32 S. W. 335. Porter v. Martyn, 32 S. W. 731. San Antonio & A. P. Ry. Co. v. Bergsland, 34 S. W. 157. San Antonio & A. P. Ry. Co. v. Harding, 33 S. W. 373. Telschow v. House, 32 S. W. 153. Williams v. Howard, 31 S. W. 835. THIRD DISTRICT. Alliance Milling Co. v. Eaton, 33 S. W. 588. Texas Land & Immigration Co. v. Masterson, 33 C. Aultman & Co. v. Allen, 33 S. W. 679. S. W. 376. Tynberg v Cohen, 32 S. W. 157. SECOND DISTRICT. Alamo Fire Ins. Co. v. Brooks, 32 S. W. 714. Bean v. Warden. 31 S. W. 831. Blum v. Houston & T. C. Ry. Co., 31 S. W. 526. Cabell v. Holloway, 31 S. W. 201. Cameron v. First Nat. Bank of Decatur, 34 S. Carmichael v. Ballard, 31 S. W. 80. Ft. Worth & R. G. Ry. Co. v. Lindsey, 32 S. W. 714. Galbraith v Howard, 32 S. W. 803. Hayes v. Cavil, 31 S. W. 313. J. A. Kemp Grocery Co. v. Sawyer, 33 S. W. 1031. Jennings v. Willer, 32 S. W. 24. 375. v.33s. w.-b Cervenka v. Dyches, 32 S. W. 316. Ewing v. Miles, 33 S. W. 235. Fielding v. White, 32 S. W. 1054; 33 S. W. 773. Fire Ass'n of Philadelphia v. Laning, 31 S. W. 681. First Nat. Bank of Austin v. Sharpe, 33 S. W. 676. First Nat. Bank of Gatesville v. Mings, 32 S. W. 178. Gulf, C. & S. F. Ry. Co. v. Calvert, 32 S. W. 246. Gulf, C. & S. F. Ry. Co. v. Wright, 30 S. W. 294. Hilliard v. White, 31 S. W. 553. Kaufman County v. McGaughey, 32 S. W. 927; 33 S. W. 1020. Krueger v. Wolf, 33 S. W. 663. (xvii) Marx v Baker, 29 S. W. 908. Missouri, K. & T. Ry. Co. of Texas v. Kirkland, 32 S. W. 588. Moses v. Hansford, 32 S. W. 1050. Puckett v. Williams, 32 S. W. 364. White v. Sterzing, 32 S. W. 909. White v. Waco Bldg. Ass'n, 31 S. W. 58. FOURTH DISTRICT. Perkiewiez v First Nat. Bank of Oklahoma, 33 Phenix Ins. Co. of Brooklyn v. Levy, 33 S. W. Rock Island Plow Co. v. Hill, 32 S. W. 242. Saunders v. Kempner, 32 S. W. 585. Talbott & Sons v. Planters' Oil Co., 33 S. W. Tempel v. Dodge, 31 S. W. 686. West v. El Campo Land Co., 32 S. W. 424. Atchison, T. & S. F. Ry. Co. v. Click, 32 S. W. Yoakum v. Kelly, 30 S. W. 836. 226. Beitel v. Wagner, 32 S. W. 366. City of San Antonio v. Micklejohn, 33 S. W. 735. Diamond State Iron Co. v. San Antonio & A. P. Fant v. Wickes, 32 S. W. 126. Galveston, H. & S. A. Ry. Co. v. Goodwin, 32 Galveston, H. & S. A. Ry. Co. v. Waldo, 32 S. W. 783. Galveston, H. & S. A. Ry. Co. v. White, 32 S. W. 186. Galveston, H. & S. A. Ry. Co. v. Worthy, 32 S. W. 557. Geers v. Scott, 33 S. W. 587. Hall v. La Salle County, 32 S. W. 433. Hodo v Mexican Nat. R. Co., 31 S. W. 708. International & G. N. R. Co. v. Sein, 33 S. W. 558. Jones v. Galveston, H. & S. A. Ry. Co., 31 S. W. 706. Liverpool & L. & G. Ins. Co. v. Brown, 33 S. W. 996. Lochte v. Blum, 30 S. W. 925. Mariposa Land & Cattle Co. v. Silliman, 32 S. W. 843. New York & T. Land Co. v. Gardner, 32 S. W. 786. Noel v. City of San Antonio, 33 S. W. 263. t FIFTH DISTRICT. Allison v. Pitkin, 33 S. W. 293. Cumpston v. Texas & P. Ry. Co., 33 S. W. 737. Investor's Mortg. Sec. Co. v. Loyd. 33 S. W. 750. King v. Texas State Fair & Dallas Exposition Knowles v. Ott, 34 S. W. 295. Neeley v. Case. 32 S. W. 785. Phoenix Assur. Co. of London, England, v. Coffman, 32 S. W. 810. Producers' Maible Co. v. Bergen, 31 S. W. 89. Rogers v. East Line Lumber Co., 33 S. W. 312. Russell v. Campbell, 32 S. W. 858. St. Louis S. W. Ry. Co. v. Huffman, 32 S. W. 30. Simpkins v. Searcy, 32 S. W. 849. : THE SOUTHWESTERN REPORTER. VOLUME 33. 1. An action to set aside a deed of trust to land, on the ground of fraud, involves title to real estate, within the meaning of the constitution, defining the jurisdiction of the supreme court. 2. Though a pleading must be liberally construed (Rev. St. 1889, 2074), such rule does not dispense with the necessity of stating, directly or inferentially, the facts on which the pleader depends to secure the object of his pleading. of the probate judge in ard for said Mercer county, and was by said probate court duly proved and probated, and declared to be the last will and testament of the said Moses Overton. That he left, surviving, children and grandchildren, the plaintiffs and defendants, his only heirs, as hereinafter set out. That the plaintiffs Enoch Overton, Albert Overton, Isaac Overton, and the defendant James Overton, are the only sons, surviving, of the said Moses Overton, deceased. That the defendant Charles Overton is a grandson of the said Moses Overton, being the only child of Alexander Overton, a deceased son of the said Moses Overton. That the defendants Robert Overton and Nancy Curtis are grandchildren of the said Moses Overton, being the only children of Joseph Overton, deceased, a son of the said Moses Overton. That plaintiffs Mary A. Wayman, Susan J. 3. In an action to set aside a trust deed of a person, since deceased, on the ground of fraud, where the petition alleges that certain of the plaintiffs are deceased's heirs, and that deceased left a last will, which has been duly probated, but does not give the terms of the will, nor state its effect in respect to its disposi-Young, and Martha A. Frakes are the daugh tion of the land which was the subject-matter of the deed, nor allege that such plaintiffs have any interest in deceased's real estate under the will, it is fatally defective. ters of the said Moses Overton, deceased. That defendants Nancy Curtis and Isaac Curtis are husband and wife. That plaintiffs Stephen Wayman and Mary A. Wayman are Appeal from circuit court, Mercer county; husband and wife. That plaintiffs Albert Paris C. Stepp, Judge. Action by Enoch Overton and others against Randolph Overton and others to set aside a trust deed on the ground of fraud. From a judgment sustaining a demurrer to the petition, plaintiffs appeal. Affirmed. The petition and demurrer, mentioned in the opinion, are as follows: Petition: "Enoch Overton, Albert Overton, Isaac Overton, Mary A. Wayman, Stephen Wayman, Susan J. Young, Albert Young, Martha A. Frakes, Marion Frakes, and Joel H. Shelly, Executor of Moses Overton, Deceased, with Will Annexed, Appellants, against Randolph Overton, James Overton, Isaac Curtis, Nancy Curtis, Robert Overton, Charles Overton, and John C. Casteel, Mortgagee, Respondents. Plaintiffs, for their second amended petition, state that. on the 22d day of March, 1891, one Moses Overton, at Mercer county, Missouri, departed this life. That he, in his lifetime, made and published his last will and testament, which said will was duly executed and declared to be by him his last will and testament, and which will was, after his death, duly filed for probate in the office v.33s.w.no.1-1 Young and Susan J. Young are husband and wife. That plaintiffs Marion Frakes and Martha A. Frakes are husband and wife. That Joel H. Shelly is the executor with the will annexed of the said Moses Overton, deceased, and is now acting as such, and has in his possession the personal assets of deceased, including the six hundred dollars hereinafter set out. That the said Joel H. Shelly was, on the -day of, 1891, by the probate court of Mercer county, duly appointed executor of the last will and testament of the said Moses Overton, deceased, gave bond as such, was duly qualified as such, and has ever since that time, and now is, acting as such executor. That the defendant James Overton is a son and an heir of the said Moses Overton, and refuses to be made party plaintiff herein, and therefore is made a defendant in this case. That the defendants Robert Overton, Nancy Curtis, and Charles Overton, as well as Isaac Curtis, refuse to be made parties plaintiff herein, and are therefore made parties defendant in this suit. That defendant Randolph Overton is a son of defendant James Overton. That, on the 23d day of December, 1890, and for a long time prior thereto, the said Moses Overton was the owner in fee simple of the following described real estate, situate in Mercer county, Missouri, to wit: The southwest quarter of the southwest quarter, and ten acres off the south side of the southeast quarter of the southwest quarter, of section No. three (3), and all that part of the northwest quarter of the southeast quarter of the northeast quarter of section (4) four lying east of Grand river, and ten acres in the northeast corner of the northeast quarter of the northeast quarter of section (9) nine, all in township No. sixty-five (65), of range No. twenty-four (24), in all ninety-one acres, which said real estate plaintiffs allege is, and was at the time aforesaid, of the value of two thousand dollars. That, on the said 23d day of December, 1890, the said Moses Overton, who was then of the age of eighty-four years, resided with the defendants James Overton and Randolph Overton. That the said Moses Overton, at the time last aforesaid, and for a long time prior thereto, and from the said 23d day of December, 1890, until the time of his death, to wit, March 22, 1891, was, by reason of old age, mental imbecility, and physical debility, so diseased in body and in mind as to be totally incompetent and incapacitated to transact any business whatever, and for the causes aforesaid was unable to know or understand the value of his property, or to make au intelligent disposition thereof. That, on the said 23d day of December, 1890, the defendants Randolph Overton and James Overton, well knowing the premises, and well knowing the mental imbecility of the said Moses Overton, as aforesaid, and intending and contriving to cheat, wrong, and defraud the said Moses Overton and these plaintiffs out of the real estate hereinbefore described, while the said Moses Overton was temporarily residing with them, did persuade, induce, and cause the said Moses Overton, for the sum of six hundred dollars, to convey said real estate to the defendant Randolph Overton, which conveyance is recorded in Book 25, page 191, in the office of the recorder of deeds in and for Mercer county. That said real estate was of the value of two thousand dollars, which defendants well knew. That the said Moses Overton was, at the time of the execution of said conveyance, by reason of the physical inability and mental imbecility aforesaid, utterly incompetent to make said sale, transact said business, or understand the value of said real estate, or to know the consequences of said act, all of which defendants at the time well knew; and, well knowing the premises, as aforesaid, and with the intent to cheat, wrong, and defraud the said Moses Overton and these plaintiffs, did willfully, knowingly, and fraudulently persuade, induce, and cause the said Moses Overton to execute the deed aforesaid. That, in order to procure the six hundred dollars aforesaid, to pay the purchase price of said real estate, said Randolph Overton executed a deed of trust to said real estate to the defendant John C. Casteel, to secure him, the said Casteel, in the sum of six hundred dollars, which trust deed was executed on the 14th day of January, 1891, and is recorded in the office of the recorder of deeds in and for Mercer county, at Book 2, page 13. That plaintiffs bring into court and tender to the said Casteel, mortgagee as aforesaid, the said sum of six hundred dollars, with the interest thereon to time of trial. That the said Moses Overton, in his lifetime, demanded of defendants that they reconvey to him said real estate, at the same time offering to return to defendants the said sum of six hundred dollars, the purchase price thereof, which the defendants then and there refused to do or perform, and still refuse to do or perform. That, after the death of the said Moses Overton, these plaintiffs demanded of defendants that they convey said real estate to the said Moses Overton, his heirs or assigns, and at the same time offered to return to defendants said sum of six hundred dollars, the purchase price of said real estate, as aforesaid, with all the interest thereon, which the defendants then and there refused to do. Plaintiffs therefore pray that the said deed from the said Moses Overton to the defendant Randolph Overton be set aside and held for naught, that the trust deed from the said Randolph Overton to the said John C. Casteel be set aside and held for naught, and that the said Casteel be required to receive the said sum of six hundred dollars, with the interest thereon, tendered as aforesaid, and that all the interest of the said Randolph Overton and John C. Casteel be vested in the heirs of the said Moses Overton, and for other and proper relief." Demurrer: "Now comes the defendant Randolph Overton, and demurs to the fourth amended petition in this cause for the following reasons: First. Because there is a defect of parties plaintiff in this: The petition alleges that Moses Overton, deceased, under whom plaintiffs claim title to the real estate in controversy, left a last will, which has been duly probated, and that plaintiff Joel H. Shelly is the executor of said will; but the petition fails to show that said Joel H. Shelly, as such executor or otherwise, has any interest in said real estate, or that said real estate is mentioned in or disposed of by said will, or that said Joel H. Shelly has legal capacity to try this suit. Second. Because the petition does not state facts sufficient to constitute a cause of action, and because it does not show that the other plaintiffs or defendants have any just interest with the said Joel H. Shelly, or any other interest. Third. Because the petition shows that the parties in interest have not united therein to set aside said deed, and that several of them are opposed to setting it aside, and that several of the said parties in interest, and heirs of said Moses Overton, deceased, are opposed to this suit and to setting aside deed, and that plaintiffs have no authority to maintain this suit. Fourth. Be |