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: 58
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58 ANDERSON V. STOCKDALE. [Austin Term,
Argument for the appellees.
to him the possession and title deeds, and if it had been lost to
plaintiff by tax sale, that plaintiff might have judgment against
him for its value.
Plaintiff claimed also $2,700.61 from Stockdale for lands of plaintiff
sold by Stockdale before the date of his conveyance to W. I.
Johnson; and also asked that he account for all personal property,
and pay over proceeds and interest to plaintiff and account for all
moneys received and disbursed; and plaintiff charged that all Stockdale's
acts were in law fraudulent. He asked that if he had no
remedy against the Indianola City and Land Company and Allen
and Schwartz, that Stockdale be held liable for and bound to
account for and pay over to plaintiff the full value of all property
lost to plaintiff by his acts and omissions and unauthorized conveyances;
that he may be removed from his position as executor of Sarah
Anderson's will, and further prayer for costs and general relief.
Defendants demurred generally and specially to the petition. The
demurrers alleged in effect:
1. Want of equity in the bill.
2. Misjoinder of parties defendant.
3. Limitation of two, four, five and ten years, and stale demand.
4. Want of necessary parties defendant.
They were all sustained except that setting up multifariousness
and misjoinder of parties defendant, and the plaintiff declining to
amend, the suit was dismissed and plaintiff appealed.
A. B. Peticolas, for appellant, on the proposition that power
vested by a will in two jointly without words of survivorship cannot
be exercised by one alone, cited: Johnson v. Bowden, 43 Tex.,
672; Langley v. Harris, 23 Tex., 569; Crosby v. Huston, I Tex., 226;
Tippett v. Mize, 30 Tex., 366; 1 Perry on Trusts, sees. 273, 493;
Hill on Trustees, 34, 735, side paging, 472, 473; Noel v. Harvey, 29
lliss., 72; 31 Ill., 364; Bradish v. Gibbs, 3 Johns. Ch., 523; Sanderlin
v. Thompson, 2 Dev. (N. C.) Eq., 539; Russell v. Russell, 30 N.
Y., 581; Graham v. Little, 5 Ired. (N. C.) Eq., 156; Doolittle v.
Lewis, 7 Johns. Ch., 45; Smith v. Ayer, 11 Otto, 320, 327.
On misjoinder of parties, he cited: Clegg v. Yarnell, 18 Tex., 295;
Gaines v. Chew, 2 How., 619; Hunley v. Hunley, 15 Ala., 91; Kennedy
v. Kennedy, 2 Ala., 571; McLachlin v. Staples, 13 Wis., 488.
Stockdale & Proctor, for appellees, on the survivorship of the
power, cited: Pasch. Dig., art. 1335; Johnson v. Bowden, 43 Tex.,
670; Peter v. Beverly, 10 Pet., 564.
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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. (texashistory.unt.edu/ark:/67531/metapth28512/m1/80/: accessed July 28, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .