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court below erred in refusing to entertain the the appellants and the remaining appellve, case upon the ground stated by that court. King. The latter filed a plea of not guilty. That aldermen are properly elected by the He further specially answered that the plainvoters of their respective wards, see State v. tiffs deraigned their title by a conveyance McAllister (Tex. Sup.) 31 S. W. 187.

from one A. L. Hill, who had secured the isThe judgment of the lower court is reversed, suance of a patent to land embracing that in and remanded for trial. Reversed and re- suit. By way of reconvention, the defendmanded.

ant King prayed for the cancellation of this patent, for reasons which will hereafter appear. He, also, by way of reconvention, al

leged that he was the owner of the land WYNNE et al. v. KENNEDY et al. through R. H. Lackey, by virtue of the lat(Court of Civil Appeals of Texas. Dec. 7, ter's settlement and occupancy of the land 1895.)

for three years; and he prayed for a recovPUBLIC LANDS-PRE-EMPTION-EQUITABLE TITLE

ery against the appellants upon the title thus COMPLIANCE WITH STATUTE - PRESUMPTION ON acquired. To this answer the appellants reAPPEAL-CANCELLATION OF PATENT - LIMITA

plied, setting up their title under the survey TION.

and location made for A. L. Hill on March 8, 1. Where the court finds that one settled on public land under Act Feb. 1, 1860, which

1878, covering the land in question, by virtue contemplates settlement accompanied or suc- of a patent issuing upon the survey July 10, ceeded by purchase at 50 cents an acre, but

1883, and by virtue of a subsequent conveythere is no finding that he paid the taxes from date of settlement or the purchase price with

ance from Hill to the appellants. They alin three years from filing, as provided by the leged that more than 10 years had elapsed act, and such omission to find is not complained after the survey for Hill before the instituof by assignment of error, it will, in the ab

tion of this suit or the filing of the defendsence of a statement of facts, and in support of its judgment that he had a good, equitable

ants' answer, so pleading the bar of 10 years title, be presumed that he complied with the to the claim of defendants, founded upon the provisions of the act.

Lackey location. They alleged that defend2. Under Act Feb. 1, 1860, $$ 8, 9, declaring that the head of a family who may settle on va

ants' claim was a stale demand, and further cant public land may purchase 160 acres, to in- urged the statute of four years' limitation clude his improvements in preference to others, against the cross action. The court, trying at 50 cents an acre, providing that one desiring the benefits of the act shall within three months

the case without a jury, rendered judgment after settlement file with the district surveyor

that the plaintiffs take nothing; that the dean affidavit that he is bona fide settled and fendant King, under his plea in reconvenmaking improvements, and that he has not pre- tion, recover of the plaintiffs the land in conviously taken a pre-emption under the act, and shall at the same time file a designation of the

troversy; that he take nothing by his plea in land sought to be secured, and shall within 12 reconvention, in so far as he seeks the canmonths have the land surveyed, and the field cellation of the patent (this specific relief benotes recorded, and returned to the general

ing barred under the four years' statute inland office, and shall pay taxes on it from date of settlement, and pay the purchase money with

voked by the plaintiffs). From this judgin 3 years from filing, or his preference shall ment the appellants prosecute the present cease, it is not necessary to perfecting the set

appeal. tler's equitable title that he file in the land office an affidavit of occupancy and improve

The record contains no statement of facts, ments.

and we adopt the conclusions of fact found 3. While the assertion by defendant in tres- by his honor, as follows: "(1) In the year pass to try title of a superior equitable title is

1858, R. H. Lackey was a married man, with an action to recover real estate, his claim to have plaintiff's patent canceled is not such an

a wife and children, and in that year he setaction, within Rev. St. art. 3207, declaring that tled upon and improved a tract of 160 acres "every action other than for recovery of real

of land in Tarrant county, Texas, in which is estate, for which no other limitation is provided, shall be brought within four years” after ac

embraced the land in controversy in this crual of cause of action.

suit. On the 9th day of April, 1860, R. H. Appeal from district court, Tarrant coun

Lackey, by his own oath and by the oaths of

Joseph Frank and Henry Ruphoff, proved ty; S. P. Greene, Judge.

Action by R. M. Wynne and others against that he was bona fide settled and making im0. S. Kennedy and another. From the judg

From the judg. provements upon the 160 acres of land, by ment, plaintiffs appeal. Affirmed.

affidavit of the parties named, made before

G. Nance, clerk of the county court of TarWynne, McCart & Booty, for appellants.

rant county, Texas, on April 9, 1860, which Oliver S. Kennedy, for appellees.

affidavit was filed in the general land office

on the 25th day of May, 1861. On the 16th TARLTON, C. J. The appellants, R. M. day of March, 1861, R. H. Lackey had the Wynne, Robert McCart, and A. J. Booty, 160 acres of land surveyed; and had the brought this action of trespass to try title to field notes filed and recorded in the office of recover from 0. S. Kennedy and John P. the surveyor of Tarrant county, Texas, on King, the appellees, 60 acres of land out of the 20th day of March, 1861, and had the the R. H. Lackey survey, in Tarrant county, same filed in the general land office on the Tex. The defendant Kennedy entered a dis- 25th day of March, 1861. R. H. Lackey and claimer, and the controversy here concerns his family lived upon the land, improved,

time of the death of R. H. Lackey, in the thr

used, cultivated, and enjoyed it, up to the must not only have occupied the land for

three years, but must have filed an affidavit year 1864, continuously from the time of his in the land office to the effect that he has ocsettlement of the same; and his family so cupied and improved the land in good faith lived upon the land, and used, improved, and for three years, which affidavit must have cultivated it, continuously from the date of been corroborated by the affidavits of two the death of Lackey up to the year 1868. disinterested citizens in the county in which (2) Lackey did not make any proof of his the land is situated. The rights of Lackey occupancy of the land, as aforesaid, and must be tested by the provisions of the law have the same filed in the office of the com- on which his claim is founded. missioner of the general land office. (3) The The court's unchallenged finding is that he 00 acres of land in contest in this suit is a settled upon the land as a part of the public part of the 160 acres of land so settled upon, domain, under the act approved February 1, improved, and occupied by Lackey and fami- 1860. Referring to this statute (Acts 8th ly. (4) On January 5, 1882, A. L. Hill caus- Leg. 1859-60, p. 30; 2 Sayles' Early Laws, ed to be filed in the general land office the art. 2830), we find that sections 8 and 9 refer affidavit of W. R. Woodall and J. F. Bed- to the subject before us. These sections are well, stating, in substance, that in the mat- as follows: ter of the A. L. Hill 160-acre J. Armandaris "Sec. 8. All heads of families, who are survey, covering the R. H. Lackey pre-emp- settled upon, or who may hereafter settle tion survey, they know that R. H. Lackey upon any vacant public domain, except those abandoned that survey on or before 1868; | lands, the sale of which is provided for in the that Lackey left the survey with the inten- second section of this act, shall have the tion to give up and fully abandon it; and privilege of purchasing one hundred and sixthat he never returned to it at any time ty acres of land, or less, where it is entirely thereafter, or assumed any charge or control surrounded by previous surveys, to include thereof; and they further swear that they his or her improvement, in preference to all nor either of them have any interest what- others, at fifty cents per acre. ever in the land herein mentioned. (5) Lack- “Sec. 9. Any one desiring to obtain the ey settled upon the land as a part of the benefits of the preceding section of this act, public domain, under the act approved Feb- shall, within six months after the passage of ruary 1, 1860. (6) On the 19th day of March, this act, or within three months after his or 1878, A. L. Hill filed upon the 160 acres of her settlement, file, with the district surveyland, which embrace the land in contest, or, his or her affidavit and that of two credwith a land certificate for 640 acres of land, itable witnesses, made before any officer auNo. 34, issued to Juan Armandaris, and thorized to administer oaths, in the land dis

, caused the land to be surveyed by the sur- or she is bona fide settled and making imveyor of Tarrant county, Texas, and duly re- provements upon vacant public domain, the turned field notes of the survey, and had sale of which is contemplated in the first secthem duly recorded in the general land of- tion of this act; and that he or she has not fice, in accordance with law; and on the 10th previously taken or filed a pre-emption under day of July, 1883, the land was patented to this act, on vacant land, and shall at the A. L. Hill, under and by virtue of the loca- same time file, with said surveyor, a designation and survey under the Armandaris cer- tion of the land sought to be secured, and tificate, and that patent was duly recorded said settler shall, within twelve months, have in the office of the county clerk of Tarrant said land surveyed, and his or her field notes county on the 15th day of September, 1883. recorded and returned to the general land (7) The plaintiffs own whatever title A. L. office, and shall be required to pay taxes on Hill had in the land by virtue of his location the same, from the date of his or her settlethereon of the Armandaris certificate, and ment, and the money paid within three years the patent issued to him thereon; and the from the date of his or her file, or the preferdefendant John P. King owns whatever title ence herein provided shall cease, and said the Lackeys have to the land by virtue of

land become vacant and subject to location the location thereon as a pre-emptor of R. or purchase; and that no claim under this H. Lackey, and his residence thereon for act shall be transferable or assignable, unmore than three years, which appears from til the rights to the land shall be perfected." a written agreement of the parties hereto." This act of 1860 was itself an amendment

The appellants first question the correct- of an act of 1858 (Sayles' Early Laws, art. ness of the court's conclusion of law to the 2757), the first section of which is referred to effect that R. H. Lackey, by virtue of the in the ninth section above quoted. The latfindings of fact herein, became the equitable ter section must therefore be lead in the light owner of the land in controversy; that his of the provisions of section 1 of the act of equitable title was complete without making 1858, reading as follows: "The commissioner proof of occupancy and improvements, which of the general land office is authorized to iswas only necessary to procure the issuance sue land scrip in certificates of not less than of a patent. It is contended by the appel- one hundred and sixty acres (except in the lants that, to become the owner, Lackey cases hereinafter provided), which certificates

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may be sold at the price of one dollar per said patent to be barred, and that the statute: acre, shall issue in the name of the pur- of limitation of ten years has no application chaser, and may be located upon any vacant to the case.” He further finds "that the unappropriated public domain not being set defendant King is the equitable owner of the apart, held in reservation, or the location of land, and is entitled to recover it; but, not which is prohibited by law.”

having brought his action in four years from It will be thus seen that the act under the date of the patent to Hill, he is not enwhich Lackey the vendor of the appellee titled to have said patent canceled, but must King, settled upon this land, was one which hold his land clouded by said patent." We contemplated settlement, accompanied or suċ- approve these conclusions. Article 3207, Rey. ceeded by purchase, at the price of 50 cents St., reads as follows: "Every action other per acre. In this case, while finding that than for the recovery of real estate, for Lackey settled upon the land in controversy which no limitation is otherwise prescribed, under the provisions of the foregoing act, the shall be brought within four years next after court does not affirmatively find that he com- the right to bring the same shall have acplied with all of its provisions, as that he crued, and not afterward.” We think, with paid taxes from the date of his settlement, the trial court, that the suit of the defendant or that he paid the money or purchase price King to have the patent canceled comes withwithin three years from the date of filing. in the purview of this statute, but that the This omission in the findings is not com- assertion by him of his superior equitable plained of by any assignment of error; and, title to the land, in this action of trespass to in the absence of a statement of facts, we try title, is a suit for the recovery of real deem it our duty to impute to the court, in estate, and is beyond the terms of the article. support of its judgment, a finding that the The provisions of article 3209, prescribing settler had complied with the provisions of that "any action for the specific performance the law under which he entered. In any of a contract for the conveyance of real esevent, we are of opinion that the provisions tate shall be commenced within ten years of this law did not require, as necessary to next after the cause of action shall have acthe perfecting of his equitable title, that the crued, and not afterward,” cannot avail the settler should file in the land office an affi- appellants. If otherwise applicable (which davit of occupancy and improvements, in ac- we certainly do not hold), the requisite period cordance with the contention of the appel- of 10 years had not elapsed after the appellants. Subsequent enactments, prescribing lants' vendor acquired the legal title through the manner in which the equitable title thus the issuance of the patent, July 10, 1883, and acquired should be perfected into a legal title, the filing of the defendant's plea in reconby the securing of patent (Pasch. Dig. arts. vention in assertion of his equitable title, on 7045, 7046; Acts May 27, 1873, p. 110, cited | November 18, 1892. by appellants), cannot impair the efficacy of The contention that Lackey

that Lackey should be the equitable title vested in the settler and deemed to have abandoned the land after he purchaser by compliance with the prior law. had acquired the equitable title thereto can

It thus follows, we think, that the land in not be sustained by us. The record fails to controversy comes within the language of indicate (further than as shown by the dearticle 14, § 2, of the constitution, "as land fendant's plea of not guilty) who is in posequitably owned under color of title from the

session of the land, or whether the direct sovereignty of the state, evidence of the ap- vendee of Lackey took possession. The findpropriation of which is on the county records ings of the court indicate a conclusion against or in the general land office”; and that, as the appellants on this question of abandonsuch, it was withheld from the location of

ment, which is to a great extent a question the certificate of Hill, appellants' vendor. of fact, with reference to which the appelAdams v. Railway Co., 70 Tex. 260, 7 S. W. lants have failed to enlighten this court by 729. It does not follow, however, that the embodying a statement of facts in the record. patent issued by virtue of that location was

We order that the judgment be afirmed. absolutely void. That instrument would seem to have passed to the appellants' vendor the naked legal title of the state. Gullett v. O'Connor, 54 Tex. 416. Hence the

MARTIN V. LAPOWSKI et al. question is presented by appellants' brief whether the bar of four years' limitation

(Court of Civil Appeals of Texas. Dec. 7,

1895.) (Rev. St. art. 3207) can be invoked against the assertion of appellees' demand in recon

APPEAL-Box-OBLIGEES. vention. In this connection, his honor con

One of several joint judgment defendants.

in an action of debt in justice court, may, when cluded “that the defendants' plea in recon. such defendants are not adversely interested, vention, so far as the same seeks to cancel appeal without making his codefendants obthe patent of the state to A. L. Hill, is a per

ligees in his appeal bond. sonal action, and in effect a claim that plain- Appeal from Taylor county court; D. G. tiffs hold said land in trust for defendants, Hill, Judge. and that the four years' statute of limitation Action of debt by S. Lapowski & Bro. causes defendants' action for cancellation of against Alice 0. Martin and another, in justice court. Judgment for plaintiffs. Alice 0. same company the soldier belonged to, is admisMartin appealed to the county court, and

sible in evidence.

2. Evidence that the brother of a widow adfrom a judgment of that court dismissing

ministered on the estate of a deceased person her appeal she appeals. Reversed.

of the same name as that of the husband of the

widow is admissible to prove that such person Kirby & Kirby, for appellant. John Bow

was the husband of the widow. yer, for appellees.

Error from district court, Montague coun

ty; D. E. Barrett, Judge. STEPHENS, J. It has been twice decided

Trespass to try title by W. B. Wallace and by this court that from a joint recovery others against the Red River Cattle Comagainst two or more defendants in an action

pany of Texas and others to recover land of debt in the justice court either of them

patented to the heirs of one William Walmay appeal the case to the county court, and lace. There was a judgment for plaintiffs, that, too, where they are not adversely inter

and defendants bring error. Reversed. ested, without making the appeal bond payable to the defendant or defendants not so ap

Sparks & Smith and B. L. Aycock, for pealing. Railway Co. v. Mosty (Tex. Civ. App.)

plaintiffs in error. W. S. Simkins and Tem27 S. W. 1057; Ayers v. Smith (Tex. Civ. App.) pleton & Patton, for defendants in error. 28 S. W. 835. A contrary ruling by the court of civil appeals at Dallas is relied on. Bald- STEPHENS, J. The elaborate opinion of win v. White (Tex. Civ. App.) 26 S. W. 455. Justice Brown in the cognate case of Byers That decision, however, seems to us to be in v. Wallace (decided by our supreme court conflict with the very case cited in the opin- since this case was tried) 87 Tex. 503, 28 ion of Justice Rainey to support it,—that of S. W. 1056, and 29 S. W. 760, is directly in Moore v. Jordan, 65 Tex. 395,-especially point on the rulings of the court now comwhen the latter case, and the cognate case plained of in the exclusion of evidence upon therein referred to of Jordan: v. Moore, re- said trial. According to that opinion, overported in the same volume, page 363, are con- ruling in part Smith v. Shinn, 58 Tex. 1, sidered together. It also seems to us to be the district court erred in excluding from in conflict with the statute, which gives to the jury the testimony of J. B. Wallace as “any party to a final judgment” the right of to the contents of the lost letter written appeal, upon his executing the prescribed from Goliad in 1836 by Samuel Wallace to bond, payable to the appellee, which term his sister, Rebecca, in Virginia, just prior to properly includes only parties adversely in- the massacre, to the effect that his cousin terested. Rev. St. arts. 1638, 1639. If there William was there as a member of the comwere other objections to the appeal in this pany from Huntsville, Ala.; and also the case from the justice to the county court, proof that William Woolwine, the brother they were not made the ground of the mo- of the widow of the Virginia William Waltion to dismiss, and, after the case had been lace, had administered on the estate of said continued by agreement at the term of the William Wallace in Rusk county, Tex., in county court preceding the dismissal, were 1819. It is contended, however, that, if adprobably waived. Cason v. Laney, 82 Tex. mitted, the evidence offered would not have 318, 18 S. W. 667; Cason v. Connor, 83 Tex. changed the result; and also that plaintiffs 28, 18 S. W. 668. Because the county court in error had substantially the benefit thereerred in dismissing the appeal from the jus- of from other sources. The witness Haughtice court of Alice 0. Martin on the ground anant testified that he thought the Virginia that it was prosecuted by her alone without William Wallace went to Texas, and was including her codefendant, W. G. Martin, in massacred at Goliad, as he had always unthe appeal bond (his signature, however, ap- derstood from the family, and thought that pearing as one of the three sureties), the William's cousin Sam had so written to his judgment is reversed, and the cause remand- sister, Rebecca, as he remembered having ed for trial,

heard the letter read by Andrew Wallace. The evidence excluded as to the contents of this letter was, however, more positive and

definite, and a little fuller, giving the comRED RIVER CATTLE CO. OF TEXAS

pany to which the Virginia Wallace beet al. v. WALLACE et al.

longed, etc. Upon the difference between (Court of Civil Appeals of Texas. Dec. 7. meager and full testimony upon a given is1895.)

sue a verdict might depend. Upon the other EVIDENCE-PROOF or PEDIGREE.

point we find nothing in the record that 1. To establish the identity of a soldier of

supplies in any measure the proof of admina certain name, killed during the Mexican war, istration sought to be made. We are unable while a sergeant in a state company, a letter i to determine what effect the excluded eviwritten by a person to his sister before the sol

dence would have had had it been admitdier was killed, stating that he had met his cousin, who was of the same name as the sol- ted. The judgment is therefore reversed, dier, and that such cousin was a member of the and the cause remanded for a new trial.

following: “If a sale from Frizel to plaintiff REYNOLDS, Sheriff, et al. v. WEINMAN is shown by testimony, then it is presumed et al.

to be a lawful sale.” The principal contro(Court of Civil Appeals of Texas. Dec. 11,

versy in the case is, was the sale a lawful 1895.)

one? and upon this issue there was a conINSTRUCTIONS-Ox Weight of EvideNCE-Wroxo

flict of evidence, with a strong array of facts FUL ATTACHMENT - EVIDENCE -- DAMAGES against its legality. The charge of the court -INTEREST FROM DATE OF SEIZURE.

in the abstract, as announcing a rule of law, 1. Where the evidence on an issue of the is possibly correct; but under the circumlegality of a sale is conflicting, an instruction stances that exist in the case before us, where that if a sale is shown it is presumed to be a lawful sale is on the weight of the evidence.

the vital issue is the legality or illegality of 2. Where, in an action by a vendee against the sale, a charge that informs the jury that a sheriff for wrongful attachment of the goods it is presumed to be legal is on the weight as property of the vendor, the defendant claims

of evidence, as it is based not alone upon that the sale was in fraud of creditors, he should be allowed, when shown qualified, to testify as

the law, but on facts that arise from the to the value of the goods.

evidence that may show that it is or is not 3. In an action for wrongful attachment legal. Whether a sale is lawful is not ascerplaintiff is not entitled as a matter of law to interest on the value of the property convert

tained solely as a matter of law, but its vaed from the date of seizure.

lidity or invalidity is determined from the

circumstances existing at the time of its exeAppeal from district court, Burnet county;

cution. The charge is based on an element W. A. Blackburn, Judge.

of mixed law and fact, and when such an Action by J. Weinman and others against issue is raised the duty of the court is to N. 0. Reynolds, sheriff, and his sureties, for wrongful attachment. From a judgment for present it as in submitting any other issue

that arises from the facts. The statement of plaintiffs, defendants appeal. Reversed.

the court that the sale is presumed to be The tenth assignment of error was as fol

lawful was calculated on the debated issue lows: "(10) The court erred, as shown by

to turn the scale in favor of its validity, and defendants' bill of exceptions number one, in

doubtless did influence the jury in its finding. excluding that part of the deposition of N.

If the question was solely one of determin0. Reynolds offered for the purpose of prov

ing the legal effect of a written instrument ing the value of the stock of goods trans

unambiguous in terms, the court could so deferred by Frizel & Bro. to plaintiffs, where

clare it, and it should give to the jury the in said Reynolds testifies that the value of

construction that the law places upon the the goods left in the house after he had com

instrument; but in ascertaining whether pleted the levy was from $4,000 to $6,000."

such an instrument was executed under cirC. L. Lauderdale and W. H. Browning, for cumstances that would render it invalid or appellants. Fiset & Miller, for appellees. illegal resort must be had to the facts exist

ing at that time, and such a question is enFISHER,C.J. Action by appellees against | tirely distinct from that of the duty of the appellants for damages for the value of cer- court to declare the legal effect of a written tain goods, arising from the alleged wrongful transfer. This subject is fully discussed in levy upon and seizure under attachment. Stooksbury v. Swan, 85 Tex, 565, 22 S. W. The goods were originally the property of 963, and cases there cited. Frizel & Bro., merchants, in business at The evidence of witness Reynolds, which Lampasas, who, by an alleged bill of sale, was rejected, as shown by the tenth assigntransferred them to appellees, to whom they | ment of error, should have been admitted. were indebted at the time, and the goods His answer to the question was, in effect, his were sold to satisfy that debt. Afterwards opinion as to the value of the goods. The Hamilton-Brown Shoe Company, a creditor

facts show that he was qualified to express of Frizel & Bro., sued on their claim and at- | his opinion as to their value. The objections tached the goods. This suit is against apper- that may be urged to his statement are not lant, as sheriff, and his sureties, for the on account of its admissibility, but may afdamages arising from the levy of this attach- | fect its weight as evidence. For the errors ment. Appellants justified on the grounds discussed, the judgment will be reversed, that the sale of the goods was made to ap- and the cause remanded. The charge of the pellees with the intent to defraud the cred- court in other respects was correct, and covitors of Frizel & Bro., and that the sale was ered the questions raised by the evidence. void because the value of the goods sold to There was no error in refusing the charges appellee was largely in excess of the debt requested. The question raised by the cross due them by Frizel & Bro., and which consti- assignment may not again arise, but, in view tuted the sole consideration for the sale. of its possibility, we express the opinion that The jury awarded appellees $3,100 as dam- where the verdict of the jury is general, and ages, and from the judgment rendered for finds for plaintiff in a given sum, although that sum this appeal results. Strong evi- the law may allow interest as damages, we dence was offered and introduced by appel- are not able to say that they did not include lants tending to prove the alleged defense. interest in the sum so found as a part of the The court, among other charges, gave the damages. In actions of this character the

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