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an unauthorized contract for the sale of land must be in writing, signed by the owner.-Id.
A ratification of an unauthorized sale of per- I. TRANSFERS AND_TRANSACTIONS sonalty may be by parol.-Id.
IX. OPERATION AND EFFECT OF
§ 129 (Ark.) Where a tenant under an oral five-year lease, invalid under the statute of frauds, took possession, paid the rent for two years, and made the permanent improvements required by the lease, such part performance took the lease out of the statute.-Phillips v. Grubbs, 167 S. W. 101.
Where a tenant in possession of land, a portion of which was cleared, orally purchased standing timber, his continued possession was not referable to the contract of purchase essential to take the contract out of the statute of frauds as against a purchaser of the land, with notice of the tenant's claim under the oral pur
§ 129 (Tex.Civ.App.) Equity will sustain parol gift of land, notwithstanding the statute of frauds, where possession has been delivered and improvements of a substantial value have been made on the land by the donee with the donor's knowledge.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275.
Where an owner gave land to a son, who was placed in possession, and who, before building a house, removed trees and fences and filled in low places on the premises, the improvements made vested in the son the title in equity, notwithstanding the statute.-Id.
§ 47 (Tex.Civ.App.) Under Rev. St. 1911, requiring a purchaser of a stock in trade to se§ 129 (Mo.App.) A purchaser of standing tim- cure from the seller a verified list of his credber under a parol contract, who cut and re-itors, and to notify the creditors of the promoved timber with the consent of the owner posed sale, a sale of a stock is void as to a before a third person purchased the land, ac- creditor of the seller whose name was omitted quired title thereto as against the third per- from the list furnished to the purchaser, but son, notwithstanding the statute of frauds.- which list was not verified by the seller.-WilStarks v. Garver Lumber Mfg. Co., 167 S. W. liams v. J. W. Crowdus Drug Co., 167 S. W.
§ 132 (Ky.) Tender of performance by a vendor in a parol contract for the sale of real estate, after suit brought by the purchaser to recover the consideration paid, cannot take the contract out of the statute of frauds (Ky. St. § 470).-Grace v. Gholson, 167 S. W. 420.
§ 138 (Ky.) A purchaser who takes possession under a parol purchase has a lien on the land for the consideration paid and the enhanced value given by improvements, and he is chargeable with rent during his occupancy, measured by the interest on the consideration, plus the interest on the value of the improvements.-Grace v. Gholson, 167 S. W. 420.
Where a purchaser in a parol contract for the sale of land did not take possession, but gave a note for the price and paid the first annual premium on a policy on the life of the vendor, the purchaser, suing for rescission, was entitled to a cancellation of the note and a repayment of the insurance premium, with interest from date of payment.-Id.
§ 139 (Tex.Civ.App.) The statute of frauds is no defense to an action for delay in delivering a telegram, because F., by whom the sender of the telegram caused it to be sent, and who contracted with the company's agent to send it, orally guaranteed the charges, which were afterwards paid.-Western Union Telegraph Co. v. Taylor, 167 S. W. 289.
X. PLEADING, EVIDENCE, TRIAL,
160 (Tex.Civ.App.) In an action for debt, where the pleadings and testimony presented the defense of the statute of frauds as to some of the items sued upon, the refusal of a requested charge correctly submitting that issue was erroneous.-Newman v. Benge & Flemister, 167 S. W. 6.
(C) Property and Rights Transferred.
§ 47 (Mo.App.) It is not a compliance with Bulk Sales Law, § 1, for the buyer to demand that the verified bill of sale contain a provision that the stock of goods sold is free and clear from incumbrance, and a sale so made is fraudulent as to the seller's creditors.-Joplin Supply Co. v. Smith, 167 S. W. 649.
$38 (Ky.) Guaranty of payment for goods sold to continue until notice was given, but Trans-limiting the amount of the guarantor's liability, held a continuing obligation and not discharged by payment on the buyer's account unless made in discharge of the guaranty and with notice to that effect.-Ford v. House-Hasson Hardware Co., 167 S. W. 879.
See Frauds, Statute of, § 44.
See Indictment and Information.
See Continuance, § 47; Insurance, §§ 514, 668; Principal and Surety.
II. CONSTRUCTION AND OPERATION. § 38 (Ark.) Guaranty of a salesman's accounts, executed during a certain contract, held not a continuing guaranty, so that the guarantor was not liable for liability accruing under his new or renewal contract.-Aluminum Cooking Utensil Co. v. Chastain, 167 S. W. 495.
IV. REMEDIES OF CREDITORS. § 86 (Ky.) In action on guaranty, an answer alleging payment held indefinite as to whether the allegation of payment referred to the debt guaranteed or to the guarantor's obligation, and the court should either have required it to be made more definite or sustained a demurrer.
Ford v. House-Hasson Hardware Co., 167 S. 879.
GUARDIAN AND WARD.
I. GUARDIANSHIP IN GENERAL. 84 (Tex.Civ.App.) A parent cannot appoint himself guardian of his minor child's estate and dispose of the property without the sanction of court; his guardianship by nature not giving him such power.-Vineyard v. Heard, 167 S. W. 22.
IV. SALES AND CONVEYANCES UNDER ORDER OF COURT.
§ 99 (Tenn.) Witnesses disqualified by Shannon's Code, § 5088, to purchase a ward's realty at a sale, held only such as testify to facts which would reflect in some material degree on the jurisdictional facts specified in section 5078, and influence the court's judgment.-Arbuckle v. Arbuckle, 167 S. W. 111.
§ 103 (Tenn.) Evidence of a purchaser on a proceeding to confirm a guardian's sale of a ward's interest in certain real property held insufficient to bar the witness' right to purchase under Shannon's Code, § 5088.-Arbuckle V. Arbuckle, 167 S. W. 111.
8103 (Tex.Civ.App.) Where a father sold land which he had previously conveyed to his son, he cannot validate the sale by six years later applying for guardianship of the son's estate, and for confirmation of the sale as an act of guardianship; there being no order of sale made.Vineyard v. Heard, 167 S. W. 22.
VI. ACCOUNTING AND SETTLEMENT.
$151 (Ky.) Under Ky. St. § 2036, providing that a guardian shall be allowed a reasonable compensation for his services, a guardian is not entitled to over 5 per cent. for ordinary services relating to the control and disbursement of the funds which come into his hands.-Commonwealth v. Graves County Banking & Trust Co., 167 S. W. 411.
§ 163 (Ky.) Where settlements by a guardian. approved by the county court, made allowances for personal services, it will, in view of Ky. St. § 2038, be presumed that the services were only those relating to the management and disbursement of the ward's funds, where there were no vouchers showing any different services.-Commonwealth v. Graves County Banking & Trust Co., 167 S. W. 411.
A settlement in the county court, which made allowances to a guardian for personal services,
V. REGULATION AND USE FOR
§ 184 (Ky.) An allegation that defendant's employés wrongfully pulled or stretched a rope along a road in such a careless and negligent manner that it greatly frightened plaintiff's horse, and caused it to throw her backwards, was sufficiently broad to cover any negligent act that could reasonably be inferred from the proof.-Prestonsburg Coal Co. v. Wallen, 167 S. W. 395.
See Fraudulent Conveyances, §§ 52, 286.
I. NATURE, ACQUISITION, AND
(C) Acquisition and Establishment. §31 (Tex. Civ.App.) Where a donee of land accepted the gift with the understanding that the property should be his homestead, and he began to improve the property and erect a house thereon with intent to occupy it as a home, and the improvements were completed and occupied, the property was his homestead.-Wilkerson & Satterfield v. McMurry, 167 S. W. 275.
(D) Property Constituting Homestead. 3787, the owner of a homestead, who traded $77 (Tex. Civ.App.) Under Rev. St. 1911, art. it for other land upon which he never resided, holds such other land free from attachment for a period of six months from the time of the exchange.-Witt v. Teat, 167 S. W. 302.
III. RIGHTS OF SURVIVING HUS-
$135 (Ark.) Where a husband died in 1869, the rights of his widow and minor children in his homestead were fixed by Const. 1868, art. 12, § 5, and hence, under the direct provisions of that article, the widow's remarriage after her abandonment of the homestead.-Jarrett v. Jarchildren had reached their majority worked_an rett, 167 S. W. 482.
§ 141 (Ark.) Under Const. 1868, art. 12, § 5, providing that the homestead of the owner shall, debts during the minority of his children and after his death, be exempt from payment of his so long as his widow shall remain unmarried, the homestead cannot be validly sold for payment of debts until after the widow's remarriage. Jarrett v. Jarrett, 167 S. W. 482.
§ 145 (Tex.) Surviving spouse, regardless of solvency or insolvency, held entitled to use homestead exempt from forced sale for the payment of his own debts, which right ends upon the abandonment of the homestead.-Hoefling v. Hoefling, 167 S. W. 210.
§ 146 (Tex.) Under Const. art. 16, §§ 50, 52, and Rev. St. 1911, arts. 3235, 3413, 3414, and decedent's estate is solvent or insolvent, de3421-3428, inclusive, the homestead, whether scends to his heirs, subject to the rights of the widow and minor children, exempt from liability for the decedent's debts, and this status is not affected by a subsequent voluntary sale or abandonment.-Hoefling v. Hoefling, 167 S. W. 210.
§ 146 (Tex.Civ.App.) Under Sayles' Ann. Civ. St. 1897, arts. 1869, 2055, 2060, 2061, exempting the homestead from the debts of an insolvent decedent and vesting it in the heirs immediately, the amount received from a sale of the homestead by the heirs is not liable for the debts of the decedent.-American Bonding Co. of Baltimore v. Logan, 167 S. W. 771.
$ 150 (Tex.Civ.App.) Where the homestead is clearly defined, so that its identity can be determined, the actual setting apart of the home& Indexes see same topic and section (§) NUMBER
stead of an insolvent decedent by the probate | that a remark was made by some one indicating court, under Sayles' Ann. Civ. St. 1897, art. an intention to make trouble, was properly ex2046, is not essential to the vesting of the title, cluded, where the witness did not know who thereto in the heirs.-American Bonding Co. of made the remark, and it was not certain that it Baltimore v. Logan, 167 S. W. 771. was any one who participated in the subsequent difficulty.-Gabbard v. Commonwealth, 167 S. W. 942.
V. PROTECTION AND ENFORCEMENT
§ 95 (Tex.Cr.App.) Insulting language towards and of defendant's daughter, by one not present at the time of the shooting, though the father of the one shot, could not reduce the offense from assault to murder to aggravated assault.Singleton v. State, 167 S. W. 46.
Simply calling defendant's daughter a "wolf" was not statutory adequate cause to reduce a shooting from assault to murder to aggravated assault, though it would be a circumstance to be considered along with any others. Id.
(A) Presumptions and Burden of Proof. $ 145 (Ark.) While the use of a weapon which is necessarily deadly, or its use in a way necessarily calculated to inflict great bodily harm, raises a presumption of intention to kill, a beer bottle is not necessarily a dangerous weapon; the danger to be anticipated depending entirely upon the method in which a blow therewith was inflicted.-Tolliver v. State, 167 S. W. 703.
(B) Admissibility in General.
§ 158 (Ky.) Testimony by a witness for the defense that he saw deceased and several oth
§ 158 (Mo.) In a prosecution for assault with intent to kill, the court properly permitted a state's witness to testify to threats by accused against the prosecuting witness a year prior to the assault.-State v. Hyder, 167 S. W. 524.
§ 165 (Ark.) On trial for killing a woman between whom and deceased illicit relations existed, testimony that he asked a witness to go to her room and see if another man was there held competent.-Woolman v. State, 167 S. W. 851.
murder committed during a robbery, relied on § 166 (Mo.) Where the state, on a trial for a confession by accused, showing that a third person was present, evidence that the third person was not present and could not have taken part in the crime was admissible to rebut the evidence of motive.-State v. Powell, 167 S. W. 559.
$169 (Ark.) Where accused stated that he had given his pistol to a third person before boarding a train to his home, where he killed decedent, the marshal of the town, testimony as to the conduct of accused on the train and that he carried his right hand in his overcoat pocket was competent to show he was armed while on the train and to show his attitude in connection with the statement made to him that he would be arrested by the marshal if he did not behave himself.-McDaniels v. State, 167 S. W. 96.
§ 194 (Tex.Cr.App.) Where defendant relied for a defense for shooting one of a party who were in a yard, at the fence, when he drove along the road, not on the fact that they were together there, but that they came out, and first fired at him, evidence that they had come to the fence to repair it, and had done so, is not objectionable, within the rule that an innocent ing an appearance on which he had a right to motive, unknown to defendant, for acts producact in self-defense, may not be shown.-Singleton v. State, 167 S. W. 46.
$199 (Tex.Cr.App.) A physician having testified that he would not state the wound was such as might probably result in death, his tes timony showing the bullet did inflict serious bodily injury was admissible on the issue, if defendant was not guilty of assault to murder, whether the wound was of the character to call for a charge on aggravated assault or simple
8297 (Ark.) An instruction, in the language of Kirby's Dig. § 1765, does not require accused to establish mitigating circumstances by a preponderance of the evidence, but merely places on him the burden of showing the circumstances.-McDaniels v. State, 167 S. W. 96.
It is not improper to charge (Kirby's Dig. § 1765) that, where the killing is proved, the burden of proving circumstances of mitigation devolves on accused, provided the jury is also told that accused is entitled to an acquittal, where the evidence on the whole case raises a reasonable doubt of his guilt.-Id.
$300 (Mo.) Where the defense was self-defense not knowing that deceased was an officer undertaking to arrest accused, the court properly refused defendant's request that, even though he knew deceased was an officer, yet, if deceased used unnecessary force to effect the arrest, and defendant believed that, by reason of such force, deceased was about to kill him, etc., then defendant could kill deceased in selfdefense.-State v. Banks, 167 S. W. 505.
An instruction, following the regular charge upon self-defense, that, "if the defendant shot (deceased) unnecessarily, * * * there can be no self-defense in the case" was erroneous, because it deprived defendant of the right to act upon appearances.-Id.
$300 (Tex.Cr.App.) Where the charge on selfdefense did not limit the defense in any way, it was not necessary to give a requested charge that the defendant had the right to carry arms in his necessary defense.-Carey v. State, 167 S. W. 366.
$300 (Tex.Cr.App.) A charge held to correctly submit accused's theory of self-defense.— Johnson v. State, 167 S. W. 733.
Under Pen. Code 1911, art. 1131, the evidence in a prosecution for homicide, held not to raise any issue of manslaughter requiring instructions.-Id.
Where the negotiations which culminated in the killing consumed only a short time, although there was a short interim between the first conversation and the final meeting, a separate charge on threats in presenting the issue of selfdefense was unnecessary.—Id.
the refusal of his special charges thereon was not error.-Jones v. State, 167 S. W. 1110.
§ 301 (Tex.Cr.App.) Defendant is not entitled to an instruction that if the person whom he shot, or those with him, made an unlawful attack on defendant's daughter, he should be acquitted, where the evidence is that any such assault was unknown to him, and after he shot. -Singleton v. State, 167 S. W. 46.
§ 308 (Ark.) An instruction that a blow must be struck with malice before accused could be guilty of murder in the second degree was proper, and did not exclude the consideration of the degrees of manslaughter.-Tolliver v. State, 167 S. W. 703.
$309 (Mo.) Under Rev. St. 1909, § 4462, where there was no evidence tending to prove that a killing was involuntary, an instruction on manslaughter in the third degree was properly refused.-State v. Prince, 167 S. W. 535.
§ 309 (Tex.Cr.App.) Where no statutory adequate cause to reduce the killing to manslaughter was testified to by any witness, and the court charged that the jury, in considering provocation, might consider all the facts in evidence, failure to charge on cooling time was not error.-Johnson v. State, 167 S. W. 733.
X. APPEAL AND ERROR.
§ 338 (Ark.) Where it was undisputed that defendant hit deceased with a bottle and the
only conflict was whether she struck the blow with it or threw it and struck deceased, any error in admitting as a dying declaration his statement that defendant hit him with a bottle held harmless.-Tolliver v. State, 167 S. W. 703. § 338 (Ark.) On a trial for killing a woman between whom and accused illicit relations had existed, the admission of evidence that accused asked a witness to go to deceased's room and see if some other man was there was harmless. if erroneous, where acused was found guilty of voluntary manslaughter only.-Woolman State, 167 S. W. 851.
$340 (Ark.) Error in an instruction that striking with a beer bottle raised a presumption of intention to kill held not prejudicial, where defendant was only convicted of murder in the second degree.-Tolliver v. State, 167 S. W. 703.
Error in an instruction, allowing a conviction of murder in the first degree in the absence of any intent to kill, held not prejudicial, where defendant was only convicted of murder in the second degree.-Id.
§ 340 (Tex.Cr.App.) Where there was no issue of manslaughter in the case, errors in instructions on manslaughter are harmless.Johnson v. State, 167 S. W. 733.
§ 342 (Ark.) Where the jury under the evidence might have found defendant guilty of a higher degree than manslaughter, he could not complain of their failure to do so.-McGough v. State, 167 S. W. 857.
See Charities, § 45.
See Railroads, $$ 338, 348, 360, 400; Street
HUSBAND AND WIFE.
§307 (Tex.Cr.App.) Defendant's threat to kill, and his striking with a large and dangerous knife, and attempting further use of it before it was taken away from him, held not to raise the issue of simple or accidental assault so that
See Acknowledgment, § 37; Adverse Possession, §§ 62, 63; Appeal and Error, § 877; Bigamy; Criminal Law, §§ 785, 786; Divorce; Dower; Evidence, 88 273, 501; Intoxicating Liquors, §§ 285-317; Marriage; Mortgages, § 587; Railroads, § 398; Telegraphs and Telephones, § 56; Tenancy in