Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 486
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486 HOUSE & Co. AND BURNETT V. COLLINS. LTerm of
of the parties, and give to Hays a remedy which he did not
possess previously, and would violate the Constitution as a retroactive
It was proved on the trial that Daniel Dailey had filed on
the land prior to 1865, but that his field notes had not been
returned to the General Land Office, and that Dailey had surrendered
to appellee, Hays, all his right in the land. It was
further proved that Hays had said at one time that he held the
land as tenant for Dailey, and again, that he had taken a preemption
under previous laws. If any right had accrued to
Hays under Dailey's file, or as his tenant, or if he had taken a
preemption under former laws, it is not averred in the peti*
tion, and no relief was asked on these grounds.
If Hays was in a position to invoke the aid of the court on
any of these grounds, it could not be done by mandamus before
Burnett's patent was canceled by decree of the court, or if the
facts justified it, Burnett might have been regarded as holding
the legal title in trust for Hays, with a decree vesting in him
the title, and so regarded, the mandamus would not be necessary.
As presented, the suit might properly be dismissed, but as
the plaintiff may be able to amend and show other facts not
averred in the petition, the judgment will be reversed, and
cause remanded for further proceedings.
Reversed and remnanded.
T. W. HousE & Co. AND J. H. BURNETT, INTERVENOR V. E.
M. COLLINS, EX'TRX AND W. D. WILLIAMS.
1. PLEADING. An executrix being sued to revive a judgment by default
rendered against her testator as the indorser, and another as the maker
of a promissory note. plead that the record entry in the former proceeding
had been fraudulently procured, and made to show that service had.
been made on her testator when no such service had been made. Held,
that such facts were sufficient, if established, to authorize the execu
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/494/: accessed April 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .