Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 249
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-1S4J U LMiPKIN v. SMITH. 249
Syllabus.
ment had been obtained by the fraud and deceit of Shirley, 1the
agent of appellee. That Shirley induced him to drink to intoxication,
and while in that condition induced him by various promises,
deceits etc., to make the settlement and sign the contract. Also
that he had retained and used the money paid to him by Shirley,
was now insolvent and unable to tender back the money, prayed
that the purported adjustment and contract be vacated, and he be
permitted to prosecute his suit to judgment, allowing a credit upon
the judgment recovered for the amount received.by him.
The adjustment was had and the contract signed by Stewart on
the 16th day of September, 1882, and it was set up and asserted
in appellee's amended answer, filed in this suit November 3, 1882.
The first objection by Stewart to that adjustment seems to have
been September 28, 1883, when he filed his first supplemental
petition.
As presented by the record it is not necessary to determine
whether the condition of intoxication asserted by Stewart, together
with the alleged deceits practiced upon him by Shirley, were such
as would authorize the court in granting the relief sought, if properly
presented, because he alleges that he received the $1,600 as an
adjustment, and had retained and used the money, and that he cannot
restore the appellee to its former status. Having received the
money, if he desired to repudiate the adjustment when he became
sober, it was incumbent upon him to promptly inform appellee of
that fact, and to tender back the money received. But having
failed to do this he comes into court with soiled hands, and no relief
can be obtained. " As he has bound himself, so must he be bound."
Our conclusion is that there is no error in the judgment and that
it ought to be affirmed.
AFFIRMED.
[Opinion adopted October 21, 1884.]
WILSON LUIMPEIN v. E. B. SMITH, GUARDIAN, ET AL.
(Case No. 1716.) ·
1. JURISDICTION - EXECUTOR - WILL.- Article 1948 of the Revised Statutes
was manifestly intended to enable the executor acting under a will, which
might withdraw the estate from the jurisdiction of the county court,'to have
the county court determine who were entitled to the entire estate, where the:
will failed to do so, or in what proportions beneficiaries were entitled totake
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/271/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .