§ 133 (Tex.Civ.App.) Where objectionable argument is withdrawn by counsel making it, and the jury is instructed to disregard it, the error is cured.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. VI. TAKING CASE OR QUESTION FROM JURY. (A) Questions of Law or of Fact in Gen eral. 1 8191 (Tex.Civ.App.) There being evidence making issues for the jury, on which depended the question of a minor servant in a dangerous service having assumed the risks, unequivocally charging that he assumed all the hazards ordinarily incident to his employment was affirmative error.-Cook v. Urban, 167 S. W. 251. $194 (Tex.Civ.App.) In an action against connecting carriers for injuries to cattle, a charge that there was no evidence warranting a find first carrier, where there was evidence from which that fact might have been inferred, was a charge upon the weight of testimony.-Houston & T. C. R. Co. v. Hawkins & Nance, 167 S. W. 190. $139 (Mo.App.) Where a fact to be estab-ing that the cattle were roughly handled by the lished is relative and uncertain, such as the value of property, the evidence to establish the same is advisory only, and must be submitted to the jury.-Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co., 167 S. W. 631. § 139 (Tex.Civ.App.) A peremptory instruction for defendant may not be given on his uncorroborated testimony, proving facts material to his defense.-Iowa City State Bank v. Friar, 167 S. W. 261. § 140 (Mo.App.) Where plaintiff had the burden of proof, and attempted to establish his case by his own uncontradicted testimony, and his reputation was impeached, the court had no right or power to refuse to submit the case to the jury.-Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co., 167 S. W. 631. § 141 (Tex.Civ.App.) Where the liability of defendant and the amount thereof were established by undisputed testimony, it was proper to direct a verdict for plaintiff.-Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S. W. 749. § 194 (Tex.Civ.App.) In an action for the death of an engineer by the failure of switch tenders to properly throw switches, where there to rely upon a signal received from one only of was evidence that the engineer had the right the switch tenders, a request requiring him to receive a signal from all was properly refused because upon the weight of the evidence.-Trinity & B. V. Ry. Co. v. Dodd, 167 S. W. 238. § 194 (Tex.Civ.App.) A requested charge on the weight of the evidence is properly refused. -Burkhiser v. Lyons, 167 S. W. 244. a § 194 (Tex.Civ.App.) In an action for brakeman's death from falling from a freight car, the submission of the issue whether he was killed directly and proximately by defendant's negligence, together with a definition of negligence, and the expression "violently thrown," used in several of the issues, were not objectionable as a charge on the weight of evidence.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. § 143 (Mo.App.) When the evidence is conflicting, the question is for the jury.-Phelan v. Granite Bituminous Paving Co., 167 S. W. 1059. § 143 (Tex.Civ.App.) It was proper for the In an action for a brakeman's death a retrial court to direct a verdict, though the evi- quested charge that there was no presumption dence was conflicting, where the conflicts were that deceased was killed as a result of defendimmaterial or could not affect the resultant's negligence held improper as invading the Jewett State Bank v. Corsicana Nat. Bank, 167 province of the jury.—Id. S. W. 747. (B) Demurrer to Evidence. $156 (Mo.App.) A demurrer to the plaintiff's evidence admits the truth of the plaintiff's testimony.-Moloney v. United Rys. Co. of St. Louis, 167 S. W. 471. In determining defendant's demurrer to the evidence, the court must consider the evidence in the light most favorable to the plaintiff.-Id. 8156 (Tex.Civ.App.) In determining whether there is sufficient evidence to carry an issue to the jury, only plaintiff's evidence should be considered.-Charles B. Smith & Co. v. Duncan, 167 S. W. 233. VII. INSTRUCTIONS TO JURY. (A) Province of Court and Jury in General. $191 (Mo.App.) In an action against a paving company for an injury to the driver of a wagon caused by his horse becoming frightened by the blowing of a steam whistle on defendant's steam roller, an instruction held not erroneous as assuming that the whistle was blown. -Phelan v. Granite Bituminous Paving Co., 167 S. W. 1059. § 191 (Tenn.) A requested instruction which assumes a fact not shown by the evidence is properly refused.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859. §191 (Tex.Civ.App.) In an action for injury to a railway mail clerk from a falling letter box, continued after his death by his surviving children, instruction as to defendant's negligence and liability held objectionable as upon the weight of the evidence in assuming that defendant furnished a defective car and failed to inspect the car.-Houston & T. C. R. Co. v. Walker, 167 S. W. 199. § 194 (Tex.Civ.App.) The requested instruction, in an action for delay in delivering a telegram, announcing death and place and time of funeral of the sister of plaintiff's wife, that the wife was presumed to know the schedule of trains which she could take and thereby seasonably reach such place is properly refused as on the weight of evidence.-Western Union Telegraph Co. v. Taylor, 167 S. W. 289. $194 (Tex.Civ.App.) The rule that in a particular case the evidence must be clear and convincing to justify equitable relief by reformation of an instrument should not be given in the charge to the jury.-Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 816. (B) Necessity and Subject-Matter. 8203 (Tex. Civ.App.) There was no error in refusing defendant's requests instructing the jury to find for it as to certain acts of negligence set forth in the petition, where the court did not make those allegations grounds of recovery in the instructions which he gave.Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10. (C) Form, Requisites, and Sufficiency. § 229 (Tex.Civ.App.) Repeating 12 times in the charge that the jury must believe "from a preponderance of the evidence" the facts alleged by plaintiff tended to emphasize the burden cast by law on plaintiff, and was probably harmful.-Cook v. Urban, 167 S. W. 251. § 233 (Tex.Civ.App.) While it may not be necessary to make a preliminary statement of the issues raised by the pleadings, it is not error in the charge to state the issues by copying a part of the petition.-Lisle-Dunning Const. Co. v. McCall, 167 S. W. 810. § 243 (Mo.App.) In an action by an attorney for legal services, instructions as to burden of proof held inconsistent, necessitating a new trial after a verdict granting insufficient relief to the attorney.-Ranney v. Lewis, 167 S. W. 601. § 244 (Ark.) An instruction in an action on a note, which singles out the only solvent signer of the note and the only real defendant to the action, is not objectionable.-Waugh V. Cook, 167 S. W. 103. § 244 (Tenn.) A requested instruction which lays stress on a special item of evidence is properly refused.-Gulf Compress Co. v. Insurance Co. of Pennsylvania, 167 S. W. 859. (D) Applicability to Pleadings and Evidence. § 252 (Tex.Civ.App.) It is not error to refuse charges not supported by any testimony.Lisle-Dunning Const. Co. v. McCall, 167 S. W. 810. $253 (Ky.) An instruction, in an action for injuries to a member of a switching crew who jumped from a car negligently allowed to move downgrade, that, if he, in good faith, believed the car for safety, he could recover, was erthat his life was in danger and jumped from question whether his conduct was rash or proroneous, as withdrawing from the jury the duced by a trivial occurrence.-Millers Creek R. Co. v. Barnett, 167 S. W. 402. § 253 (Mo.App.) In an action for damages for $ 250 (Mo.) The instructions must be within the destruction of plaintiff's automobile at a both the proof and the pleadings, and must not ing switching operations, an instruction omitcrossing by collision with defendant's cars durbe broader than the proof, though the plead-ting the hypothesis of negligence held error.— ings would justify broader instructions. Riley Botts v. Chicago, B. & Q. R. Co., 167 S. W. v. City of Independence, 167 S. W. 1022. § 251 (Ky.) In a personal injury action, the court properly ignored in its instructions the subject of plaintiff's medical and nursing bills, where the petition failed to specially allege that any specific sum was expended, and there was no evidence of any such expenditures.-Prestonsburg Coal Co. v. Wallen, 167 S. W. 395. § 251 (Mo.) In employe's action for injuries, where petition alleged specific acts of negligence, instruction authorizing a recovery, if defendant was negligent, held too general, as not restricting a recovery to the specific acts pleaded.Riley v. City of Independence, 167 S. W. 1022. 8251 (Mo.App.) Where, in an action upon a building contract, defendant did not seek a reduction of the amount due on the contract price because of defective work, etc., but pleaded such loss and damage as a counterclaim, a charge authorizing a recovery for plaintiff for the unpaid balance, if the jury found that he had substantially complied with his contract, was not erroneous; a separate instruction covering the counterclaim.-Knost v. Van Hoose, 167 S. W. 596. 1154. § 253 (Tex.Civ.App.) In an action for the death of a servant, a teamster, caused by a clevis breaking, causing the doubletree to fly back and strike him in the head, a request predicating a finding for defendant if the doubletree was in the exclusive control of the servant was properly refused, because ignoring another ground of liability charged, and because there was no evidence that the servant had exclusive control, etc.-Stone & Webster Engineering Corporation v. Goodman, 167 S. W. 10. (E) Requests or Prayers. § 260 (Ark.) The court having charged as to what constitutes a bona fide holder of commercial paper it was not error to strike a similar statement from one of defendant's requested charges.-Little v. Arkansas Nat. Bank, 167 S. W. 75. § 260 (Mo.) It was not error to refuse a request to charge, where the instructions given correctly declared the law of the case.-Bimmerle v. Langdeau, 167 S. W. 532. § 260 (Mo.App.) Refusal of a requested in§ 252 (Ark.) Where a payee sought to recover struction covered by another given is not error. on a note as originally executed, on the theory-Brickell v. Williams, 167 S. W. 607. that the maker, by fraudulent representations, induced him to consent to an alteration of the note, a charge requested by the surety, not contracting with the payee for the alteration on the subject of fraud, held properly refused. -Waugh v. Cook, 167 Ś. W. 103. § 252 (Ark.) In an action on a note, an instruction held properly refused because abstract and unsupported by evidence.-Harbison v. Hammons, 167 S. W. 849. § 252 (Mo.) Instruction in employe's action for injuries from electric shock on the theory that a switch was secure and safe at 7 p. m., before the accident, and thereafter became out of repair, held properly refused, where all the evidence showed that any defect in the switch was there prior to the hour named.-Riley v. City of Independence, 167 S. W. 1022. § 252 (Mo.App.) An objection to an instruction relating to plaintiff's right to recover in an action for selling oils on commission that it was based on improper evidence was without merit, where the claim was admitted in the answer.-Whitaker v. Bell Oil Co., 167 S. W. 619. § 252 (Tex.Civ.App.) The word "willfully," in connection with "knowingly," in an instruction that, if defendants did a thing willfully and knowingly, etc., they were negligent, authorized the jury to conclude the court was of opinion there was some evidence that defendant did such thing with a bad intent, making the instruction prejudicial; there being no such evidence. Corrigan, Lee & Halpin v. Heubler, 167 S. W. 159. § 252 (Tex.Civ.App.) Where an issue is supported by evidence, it is proper for the court to charge thereon.-Owens v. First State Bank of § 260 (Mo.App.) The refusal of a requested instruction in an action for commissions for selling oils, wherein defendant counterclaimed for sales and oils not accounted for, that plaintiff could not recover commissions on sales not accounted for was not error, where the other instructions required that plaintiff be charged with the "full" amount of any sales not accounted for.-Whitaker v. Bell Oil Co., 167 S. W. 619. § 260 (Mo.App.) Error may not be predicated on the refusal to give an instruction merely repeating in different language a matter clearly covered by another instruction.-Jackson v. Kansas City, 167 S. W. 1150. § 260 (Mo.App.) A request to charge, covered by instructions given, may be properly refused. -Cowgill v. City of St. Joseph, 167 S. W. 1157. § 260 (Tex.Civ.App.) A special charge which charge was properly refused.-Trinity & B. V. was sufficiently covered by the court's main Ry. Co. v. Dodd, 167 S. W. 238. There was no error in refusing requests already sufficiently covered by other instructions. -Id. (F) Objections and Exceptions. § 279 (Ark.) Objection that an instruction placed on the jury the duty of deciding questions of law, whereas it should have stated hypothetically the circumstances under which plaintiff would be presumed to have contracted on the faith of statements made by defendant, should have been made specifically.-American Realty Co. v. Hisey, 167 S. W. 488. Specific objection should be made to an instruction as submitting to the jury the deter plaintiff could rely on defendant's statements, instead of stating under what circumstances such reliance could be placed on the statements. -Id. (G) Construction and Operation. $295 (Mo.App.) In an action by a wife for alienation of her husband's affections, where an instruction stated that defendant had no right to interfere, and by any chance cut off the possibility of future affection between plaintiff and her husband, the use of the expression "by any chance cut off," instead of the expression "cut off any chance," was cured by the rest of the instruction, which clearly indicated its meaning.-Claxton v. Pool, 167 Š. W. 623. § 296 (Ky.) The error, in an instruction for injuries to a member of a switching crew jumping from a car negligently allowed to run downgrade, authorizing a recovery, if he, in good faith, believed that his life was in danger and jumped from the car for safety, was not cured by an instruction that, if he did not use the caution of an ordinarily prudent person, and but for his failure the accident would not have occurred, the verdict must be for defendant.-Millers Creek R. Co. v. Barnett, 167 S. W. 402. § 296 (Mo.App.) Error in instructing that the owner of railroad ties could not recover their value, if defendant bought them in good faith from one not the owner, was not harmless, though other instructions correctly submitted the defense, which was estoppel by clothing the seller with the appearance of ownership.-P. R. Walsh Tie & Timber Co. v. Chester, P. & S. G. R. Co., 167 S. W. 614. plaintiff's commission at $1,000, and the seller was to pay $1 per acre, but, while the farm was listed as containing 1,000 acres, the purchaser refused to take it because it in fact only contained 600 acres.-Blakely v. Miller, 167 S. W. 1136. X. TRIAL BY COURT. (A) Hearing and Determination of Cause. $386 (Mo.) Instructions are not only out of place in a lawsuit tried to the court without a jury on facts constituting an agreed case, but serve no useful office in equity.-Tevis v. Tevis, 167 S. W. 1003. (B) Findings of Fact and Conclusions of Law. $390 (Tex.Civ.App.) Under the statutes allowing the court 10 days after adjournment in which to file findings of fact and conclusions of law, an order of court allowing itself 30 days after adjournment in which to file such findings and conclusions conferred no power to file them after the prescribed 10 days.-Alsworth v. Reppert, 167 S. W. 1098. TROVER AND CONVERSION. See Appeal and Error, § 877; Banks and Banking, 171; Carriers, §§ 57, 94; Corporations, § 333. II. ACTIONS. (C) Evidence. § 35 (Mo.) One suing for the conversion of personal property purchased by him at an execution sale under a judgment of a justice of the peace in another state had the burden of establishing the court's jurisdiction to order the sale.-Kwilecki v. Holman, 167 S. W. 989. § 296 (Mo.App.) A judgment in favor of a servant will not be reversed because an instruction erroneously imposed on defendant the duty of an insurer instead of the obligation to use reasonable care, where the law was correctly charged in an instruction given at defendant's instance. Spaulding v. Missouri Lumber & Min- See Mortgages. ing Co., 167 S. W. 663. $296 (Tex.Civ.App.) In a personal injury action by a railroad servant, an instruction, allowing recovery for an act of negligence not counted on, held not erroneous in view of the others.-Missouri, O. & G., Ry. Co. v. Dereberry, 167 S. W. 30. § 296 (Tex.Civ.App.) Instruction to find for plaintiff if freight train's employés were negligent, if erroneous as failing to state what acts would constitute negligence, held not ground for reversal, where special charges confined and defined the particular acts of negligence upon which the jury could make a finding.-Missouri, K. & T. Ry. Co. v. Wallace, 167 S. W. 168. a § 296 (Tex.Civ.App.) In an action for brakeman's death, held, in view of the other issues and instructions, that a charge requiring a finding as to the amount which would "fully compensate" the widow for her pecuniary loss was not objectionable as leading the jury to think that compensation should be large and should cover her mental anguish at the loss of her husband's companionship.-Ft. Worth & D. C. Ry. Co. v. Stalcup, 167 S. W. 279. § 296 (Tex.Civ.App.) In an action against a bank for money which a depositor claimed was wrongfully paid out, a charge that the depositor had the burden of proving his case was not misleading and did not improperly place the burden of proof on him, where the court charged that the bank had the burden of proving its affirmative defenses of payment with authority and ratification.-Owens v. First State Bank of Bronte, 167 S. W. 798. IX. VERDICT. (A) General Verdict. $333 (Mo.App.) A verdict for $600 was responsive to the issue, where a contract fixed TRUST DEEDS. TRUSTS. See Assignments, § 119; Joint Adventures, § 7; Jury, 14; Limitation of Actions, §§ 102, 103; Navigable Waters, § 36; Vendor and Purchaser, § 230; Wills, §§ 686, 687. I. CREATION, EXISTENCE, AND VALIDITY. (A) Express Trusts. $ (Mo.App.) A trust is a beneficial title or ownership of property of which the legal title is in another.-Shelton v. Harrison, 167 S. W. 634. §§ 17, 18 (Ky.) An enforceable trust may be established by the parol agreement of a father to hold in trust for his daughter the legal title to property purchased in part with money given to her as an advancement out of his estate. Erdman v. Kenney, 167 S. W. 685. §§ 17, 18 (Mo.) Under the statute of uses and trusts (Rev. St. 1909, § 2868), an express trust in land must be evidenced by some writing signed by the party to be charged.-Ferguson v. Robinson, 167 S. W. 447. Under the statute of uses and trusts (Rev. St. 1909, § 2868) and the statute of frauds (section 2783), equity will not enforce an express trust created by parol, in the absence of any fraud prior to or contemporaneous with the creation of the trust by parol.-Id. §§ 17, 18 (Tex.Civ.App.) An agreement whereby one of the parties constitutes himself a trustee for the specific purpose of carrying out an agreement for the sale and conveyance of an interest in land is not within the statute of frauds. -Lester v. Hutson, 167 S. W. 321. § 21 (Mo.) The court, to establish an express trust, must be able to determine, from the instrument signed by the party creating it, the ex istence, terms, and limits of the trust.-Fergu- | such a state of facts as will create a trust and son v. Robinson, 167 S. W. 447. (B) Resulting Trusts. § 62 (Mo.) A resulting trust is one which the law implies to meet the requirement of justice that a legal status be given to what is the clear intention of the parties.-Ferguson v. Robinson, 167 S. W. 447. $ 62 (Mo.App.) A resulting trust is always a passive or dry trust; the trustee being under no duty or responsibility to manage or control the property, except to convey it to the cestui que trust or at his direction.-Shelton v. Harrison, 167 S. W. 634. § 63 (Ky.) Ky. St. § 2353, abolishing resulting trusts, held not applicable to a father's promise to hold in trust for his daughter the title to land purchased in part with money given by him to her as an advancement.-Erdman v. Kenney, 167 S. W. 685. § 72 (Mo.App.) Where one person pays the purchase price of lands, and the title is taken in the name of a stranger, a trust prima facie results in favor of the party who pays the money, and the fact that such person directs or consents that the title be so taken does not make the trust an express one.-Shelton v. Harrison, 167 S. W. 634. A resulting trust arises, as a matter of law, from the fact that the consideration for land is paid by one person and the title taken in the name of another; the trust arising whether in accordance with or against the intentions of the parties.-Id. A resulting trust cannot arise in the hands of one who is the real owner of the property, nor by the act or agreement of one party who both pays the consideration and takes the title in himself, nor by an act or agreement subsequent to the conveyance.-Id. define its terms and limits.-Ferguson v. Robinson, 167 S. W. 447. $110 (Mo.) Evidence held not to establish, as against a purchaser at execution sale, a constructive trust in the property sold for the benefit of the execution debtor.-Ferguson v. Robinson, 167 S. W. 447. Oral admissions made by a party sought to be charged as constructive trustee are entitled to but little weight, especially where the evidence is inconsistent.-Id. The evidence to support a constructive trust resulting from fraud must be clear, strong, and unequivocal, and leave no room for a reasonable doubt as to the existence of the trust.-Id. IV. MANAGEMENT AND DISPOSAL VII. ESTABLISHMENT AND EN- (C) Actions. $359 (Mo.App.) The establishment of trusts and the enforcement of trust relations is an ancient ground of equity jurisprudence.-Shelton v. Harrison, 167 S. W. 634. § 366 (Mo.App.) Where several persons contributed to the purchase of a co-operative fruit farm, which was subsequently sold under foreclosure, resulting in a surplus, they were properly joined in a suit to enforce a resulting trust as to such surplus.-Shelton v. Harrison, 167 S. W. 634. Where money was contributed by members of an association to purchase a fruit farm, title to which was taken in the name of defendant's husband, since deceased, but there was no agreement as to such title or that the land should be conveyed to a corporation, there was no express trust, but a trust resulted in favor of the contributors, which was provable by parol.-Id. See Deeds, §§ 196, 211; Wills, §§ 155, 163. $75 (Mo.App.) That credit is given or money borrowed and subsequently paid is sufficient to raise a resulting trust, where property is purchased with funds furnished by one person and the title taken in the name of a stranger.-Shelton v. Harrison, 167 S. W. 634. § 89 (Mo.) In an action by a divorced wife to establish a resulting trust in a house and lot, the title to which was in the husband, evidence held to sustain a finding that plaintiff during the marriage relation contributed at least onehalf of the price of the lot and one-half_the costs of the improvements placed thereon.-Robbins v. Robbins, 167 S. W. 502. (C) Constructive Trusts. $91 (Mo.) A constructive trust rests on the public policy which requires that the law shall not become an instrument for the perpetration of fraud, and fraud, actual or constructive, is essential for the establishment of a constructive trust which, in view of Rev. St. 1909, § 2869, will be given force and effect.--Ferguson v. Robinson, 167 S. W. 447. $100 (Ky.) Where complainant, having purchased land worth $5,000 at a judicial sale, obtained $1,631.10 from her father, conveying the property to him on his agreement to hold the same in trust for her, equity would raise a constructive trust and decree that the father should hold the title in trust for his daughter or execute the trust in such manner as would protect her rights.-Erdman v. Kenney, 167 S. W. 685. UNDUE INFLUENCE. UNITED STATES. See Commerce, § 8; Courts, §§ 97, 366; Indians; Removal of Causes. USURY. See Limitation of Actions, § 127. I. USURIOUS CONTRACTS AND TRANSACTIONS. (A) Nature and Validity. $18 (Ky.) Under Ky. St. § 2219, held, that the act of a mortgagee in exacting an additional one per cent. of the principal for consenting to present payment and the loss of further interest was not a "loan or forbearance" amounting to usury.-Hamilton v. Kentucky Title Savings Bank & Trust Co., 167 S. W. 898. the act of a mortgagee in exacting an additional § 27 (Ky.) Under Ky. St. § 2219, held, that one per cent. of the principal for consenting to present payment and the loss of further interest was not a "loan or forbearance" amounting to usury.-Hamilton v. Kentucky Title Savings Bank & Trust Co., 167 S. W. 898. II. PENALTIES AND FORFEITURES. § 138 (Tex.Civ.App.) Loans of $10 at the the borrower to recover double the amount of rate of $3 a month were usurious, entitling interest paid.-Cotton v. Barnes, 167 S. W. 756. VACANCY. $107 (Mo.) A party seeking to establish a V. RIGHTS AND LIABILITIES OF PARTIES. (A) As to Each Other. 8189 (Tex.Civ.App.) Where plaintiffs had title to 160 acres by adverse possession, and accepted a deed to 200 acres, including the 160 See Indictment and Information, 180; New acres from defendant, failure to tender back Trial, 26; Pleading, § 599. VENDOR AND PURCHASER. See Adverse Possession, § 63; Appeal and Error, 877; Brokers; Courts, § 163; Deeds; Dower, § 116; Exchange of Property; Execution: Executors and Administrators, 8g 333-388; Frauds, Statute of, §§ 129-138; Infants, § 37; Joint Adventures, § 7; Reformation of Instruments, § 28; Sales; Specific Performance; Taxation, § 730. I. REQUISITES AND VALIDITY OF CONTRACT. § 16 (Tex.Civ.App.) Written correspondence between vendor and purchaser held not to show a meeting of minds so as to create a contract of sale.-Connell v. Nickey, 167 S. W. 313. § 16 (Tex.Civ.App.) Under an agreement whereby plaintiff's intestate was to have certain land upon the happening of certain conditions, held, that his entry and making of improvements, recognized by defendant, imposed an obligation upon him to pay the purchase price and furnished a consideration which made an executed binding contract.-Lester v. Hutson, 167 S. W. 321. Under a contract for an interest in land fixing a limit for the acceptance of its terms, considered either as an option, an agreement to convey, or a conditional contract of sale, held, that an entry under claim of right and title and the making of improvements acquiesced in by defendant constituted an acceptance.-Id. When a vendor agrees to convey land upon the doing of a particular act, such as acceptance within a certain time, the relation of vendor and purchaser does not exist until acceptance; but, if the vendor continues his offer which is accepted and he thereafter deals with the purchaser under its terms, the contract is made, even though the acceptance is not within the time limit.-Id. III. MODIFICATION OR RESCISSION OF CONTRACT. (B) Rescission by Vendor. § 93 (Tex.Civ.App.) Where a purchaser had sued to recover damages for misrepresentations affecting the value of the land, and had asked that the damages be applied on the lien notes, his failure to pay a note which became due pending the action does not entitle the vendor to rescind the contract; the jury having found the existence of fraud.-Kallison v. Poland, 167 S. W. 1104. (C) Rescission by Purchaser. § 108 (Tex.Civ.App.) When a purchaser discovers fraud in connection with the sale of land, he has the election, either to ask for a rescission and the repayment of the money, or to sue for damages from the fraud.-Kallison v. Poland, 167 S. W. 1104. IV. PERFORMANCE OF CONTRACT. (D) Payment of Purchase Money. § 187 (Tex.Civ.App.) In an action in the nature of an action of trespass to try title, held, that defendant, by allowing plaintiff's intestate to remain on the land and improve it under a claim of right after the time fixed by their the 40 acres held not to defeat their right to assert their adverse title to the 160 acres.Stewart v. Williams, 167 S. W. 761. $190 (Tex.Civ.App.) Where plaintiffs had title by limitations before receiving a deed from defendant reserving a vendor's lien, they were not estopped by the deed from asserting their adverse title, as the deed was without consideration.-Stewart v. Williams, 167 S. W. 761. (C) Bona Fide Purchasers. $228 (Tex.Civ.App.) A vendee who purchases land with notice that a lease exists and that his vendor is holding as a tenant under a third party is in no better attitude in respect to such lessor than his vendor.-Gosch v. Vrana, 167 S. W. 757. § 230 (Tex.Civ.App.) Where a deed of trust was expressly made a part of a deed and the deed of trust expressly recited that plaintiffs claimed a portion of the land conveyed, the grantee in the deed was put upon notice of the claims of plaintiff as to the land.-Gosch v. Vrana, 167 S. W. 757. of land could not claim as innocent purchasers § 231 (Tex.Civ.App.) Subsequent purchasers for value, where, at the time of the conveyance to them, there was then recorded a prior deed covering the same land, executed by their grantors.-Green v. Eddins, 167 S. W. 196. VI. REMEDIES OF VENDOR. (A) Lien and Recovery of Land. § 261 (Tex.Civ.App.) Where a grantor had previously assigned secured notes and conveyed at the same time to the assignee the "vendor's lien rights, equities, and interest" which, as prior vendor, he then had in the land, a second grantee and assignee of the notes only took by conveyance to him the right to receive any balance of the proceeds of a sale made to satisfy the notes.-Green v. Eddins, 167 S. W. 196. § 261 (Tex. Civ.App.) An ordinary transfer of a vendor's lien note to a stranger to the title of the land does not carry with it the superior title of the vendor.-Scott v. Watson, 167 S. W. 268. § 284 (Tex.Civ.App.) Evidence in an action on a vendor's lien note or, in the alternative, for recovery of the land held to warrant a directed verdict for defendants, where the note and land were not owned by plaintiffs, but had been allotted to another joint owner with plaintiffs in a parol partition.-Scott v. Watson, 167 S. W. 268. VENUE. See Corporations, § 666; Criminal Law, § 108; Justices of the Peace, § 72; Pleading, § 104; Railroads, § 22. I. NATURE OR SUBJECT OF ACTION. § 5 (Tex.Civ.App.) The venue of trespass to try title is in the county where the land lies.Lester v. Hutson, 167 S. W. 321. II. DOMICILE OR RESIDENCE OF PARTIES. § 27 (Tex.Civ.App.) Where a claim for breach of contract was assigned to plaintiff for a valuable consideration, the assignor guaranteeing payment, the denial of defendant's plea |