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ant to testify in relation to the matters COYLE V. STATE.

mentioned, the other witnesses having less

the court. We see no such error in this (Court of Criminal Appeals of Texas. March

ruling as requires a reversal of the judg. 25, 1893.)

ment. This testimony was only useful as HOMICIDE-SELF-DEFENSE -- EVIDENCE INSTRUC- explanatory of defendant's subsequent TIOXS--ARGUMENT OF COLXSEL.

acts in connection with the homicide, and 1. On a trial for murder, it appeared from was fully supplied by his own evidence in defendant's testimony that, on the evening pre- this cutnection; and the testimony may ceding the homicide, defendant and deceased

have shown, or tended to show, his reahad a quarrel; that on the following evening defendant took his gun and went to the saloon

sons for arming himself with a shotgun, where the homicide occurred, cocking his gun

and going to the drug store where Ford ou the way; that, as he entered the saloon, he and others were expected to be found, and heard some one say, “Look out, Ben," where- finally to the saloon where the homicide upon defendant demanded an apology; that de- occurred. ceased immediately fired, slightly wounding de- 3. The evidence that Ford received monfendant; that defendant then fired without

ey of deceased for his services iu securing raising his gun, killing deceased. Held, that such evidence refuted the idea of self-defense, i an abortion on a girl said to have been seand made the killing murder.

duced by deceased was properly rejected. 2. In such case, evidence of the position of

The object or purpose of this testimony is deceased's arm when the shot was fired being not stated in the bill of exceptions. Wliat immaterial, its admission was harmless.

possible bearing this testimony could have 3. Where evidence of certain acts and dec- had on the case is not made to appear. larations of deceased, tending to show a plot

May v. State, 25 Tex. App. 114, 7 S. W. to kill defendant, was excluded on exception, but subsequently defendant was permitted to

Rep. 588; Livar v. State, 26 Tex. App. 115, 9 testify in regard thereto, the former exclusion S. W. Rep. 552; Walker v. State, 28 Tex. was rendered harmless.

App. 503, 13 S. W. Rep. 860; Jacobs y. 4. Evidence that one F. received money State, 28 Tex. App. 79, 12 S. W. Rep. 408; from deceased for securing an abortion on a Schoenfeldt v. State, 30 Tex. App. 695, 18 S. girl said to have been seduced by deceased was W. Rep. 640. irrelevant.

4. Dr. Ford testified that the shot, hav. 5. It was not prejudicial error for the attorney general, in addressing the jury on a trial

ing entered deceased immediately under for murder, to refer to the fact that defendant

the right arm, passed into the body from had not put in issue his own character.

right to left, and cut an artery; that he 6. Where the issue of manslaughter is not put bis tingers into the wound; that from raised by the evidence, instructions in relation the wound flowed a stream of blood as to the law thereof are properly refused.

large as his three fingers; and that he Hurt, P. J., dissenting.

was of the opinion from the appearance Appeal from district court, Dallas coun.

of the wound and the clothing that, at ty; R. E. Burke, Judge.

the time the shut was fired, the right arm of Mike Coyle was convicted of murder in

deceased was hanging at bis side, slightly the second degree, and appeals. Affirmed.

to the rear of a perpendicular line." This

evidence was objected to because it was Bassett, Leay & Muse, for appellant. R. irrelevant and incompetent. Conceding L. Henry, Asst. Atty. Gen., for the State.

that the position of the arm of deceased

at the time of the shot could not thus be DAVIDSON, J. 1. Appellant was con. proved, it does not follow that the admisvicted of murder in the second degree, and sion of the evidence would cause a reversal allotted a term of six years in the peniten- of the judgment. To render the admission tiary. State's counsel, addressing the of such testimony reversible error, it must jury, referred to the fact that defendant tend to solve some issue in the case adhad not put in issue his own character, as versely to the defendant. If it be clear he might have done, and as he alone could that its admission did not tend to do so, do. The remarks, if improper, were not or did not in some way injuriously affect of such a material character as were cal- | him, tbis court would not be authorized culated to injure defendant. There was to reverse the judgment because of its ad. ro argument based upon the statement. mission. Unless the evidence in this case We are of opinion, however, that the testi- raised the issue of self-defense, the admisinony reflected somewhat unfavorably up-sion of this evidence could not bavo injured on the character of defendant as a quiet, defendant. If the testimony of the state peaceable, and law-abidiog citizen, and be true, the defendant was guilty of murwould bave afforded the basis of com- der upon express malice; but viewing the ment. House v. State, 19 Tex. App. 227. case from the defendant's standpoint, as

2. By several witnesses, defendant offered disclosed by his own testimony, how does to prove certain acts and declarations of the matter stand? His testimony, in súbdeceased and one Ford, the effect of which stance, is that on the evening preceding was to show their ill will towards defend- the bomicide, at night, he and deceased ant, and indicating, as the witnesses be- had some words over a financial matter, lieved, a plot to kill defendant, and that in which he said to deceased, “If you rehe secured this information thereof prior fuse to sign the note, you are a damned to the homicide. On exception this eri- scoundrel,” to which deceased replied, dence was excluded. The object and pur. “You are a damned son of a bitch; I pose of introducing this testimony is not won't sign the note.” He advanced upon Het out in the bill of exceptions, and there- deceased, who retreated behind the counfure we are not called upon to consider it. ter, and put his haud upon a pistol, and Subsequently, however, the court, having warnej him not to advance. They sepa. reconsidered his ruling, permitted deiend- rated, be going home, and deceased re. maining at the drug store. McCowen, ceased drew his pistol, but as he was in during the evening, speaking to defendant the act of drawing it from his waistband, of deceased, Dr. Ford, and other friends of which act threw his right arm back of a deceased, said, “They have got it fixed to perpendicular line, as was testified by one kill you, if you go up town; that deceased of the witnesses. followed you as far as the Union Depot, The court did not err in refusing to give and watched you going home; and that defendant's requested instructions in relaFord had offered to lend deceased a pistol, tion to the law of manslaughter. That and deceased said he had a good one of issue was not suggested by the testimony. bis own.” Subsequent to McCowen's in- The evidence would have warranted a terview with defendant, Ford called upon much more serere punishment than was defendant with a view of a inicably adjust- awarded. Finding no reversible error in ing tbe trouble between himself and de- the record, the judgment is a ftirmed. ceased, and promised to have deceased to sign the note. Defendant said, “I did not SIMKINS, J., concury. HCRT, P. J., care so much about the money, but to be dissents. called a 'son of a bitch' was mighty baru) to take. Ford informed bim that de. ceased would apologize for the language, out was then under the influence of liquor,

LAURENCE v. STATE. as well as when the difficulty occurred at

(Court of Criminal Appeals of Texas. March the drug store. As Ford left, he said to

28, 1893.) defendaut: “Mike, come up to-night after supper to the drug store. We are going

· CRIMINAL LAW-CONTINCANCE-Evidence

HARMLESS ERROR. to sell toys mighty cheap. Come up and buy some for the children.' Defendant re.

1. Where, on a second application for a

continuance in a criminal cause for the testiplied he “would see about it;" "did not

mony of an absent witness, it appears that sufknow whether he would go or not." ficient diligence was not used, and that the “After supper I took up my gun, and on matter expected to be shown by such witness the way to town loaded it, putting two was not probably true, the overruling of the cartridges in it. I went with my gun to

application was proper. the drug store. It was closed; nu lights

2. Under Code Crim. Proc. art. 661, providin it. I saw a light from the back door

ing that "the court shall allow testimony to be

introduced at any time before the argument of a of the saloon, and started there. I went

cause is concluded, if it appear that it is necesthere. I had no idea who was in there. I

sary to a due administration of justice," error did not expect to meet Page. I supposed cannot be predicated on the fact that the state, he had gone home. I stepped into the though it had rested, was permitted, after de door with both feet. Heard some ope

fendant had declined to offer any testimony on say, 'Look out, Ben.' I had my gun un

his own behalf, to introduce additional witder my arm. Without changing position

3. Where, on a trial for receiving stolen I said: 'Ben Page, you called me a “son

property from T., defendant denies any knowlof a bitch ; " I want yuu to apologize for edge of T., the error, if any, in admitting testiit.' His reply was by a shot from his mony that defendant had made the same denial pistol. The ballstruck me in theshoulder, at his examining trial, is cured. making a slight wounci. I then fired with:

Appeal from district court, Duval counout raising my gun to my shoulder. I

ty; A. L. McLade, Judge. had my guw cocked before I reached the saloon.' This shot entered Page's budy, i ceiving stolen property, and appeals.

James Laurence was convicted of rejust under the right arm, and produced

Affirmed. almost instant death. This evidence re. futes the idea of self-defense, and consti

Nicholson, Dodd & Mullally, S. A. tutes the killing murder, at least of the

Woods, and Bethel Cuopwood, for appelsecond degree. He provoked the difficulty

Jant. R. H. Harrison, Asst. Atty. Gen., which he knew, or should have known, for the State. would end in the death of himself or of the deceased. He knew deceased to be a dan- DAVIDSON, J. Appellant was indicted gerous inan, and always went arried. He for and convicted of receiving stolen prop. approached and entered the house with i erty from Santiago Tijerena. When the bis loaded gun, cocked, and ready for im- cause was called for trialappellant applied mediate use, and evidently for the purpose for and was refused a second continuance of using it is his demands were not com- for the testimony of one Benavides. This plied with. It was in a shooting position witness was expected to testify that he before he reached the door. L'nder this sold the horses to defendant, and executed state of case, it is wholly immaterial what to him therefor a bill of sale. We do not was the position of the deceased's arm at think the diligence to secure his atteud. the time defendant fired. He made it nec- ance was sufficient, nor toe testimony essary für Page to defend bimself against probably true. The evidence of the wita ready-cocked and presenteri gun. The ness Croucher renders it reasonably ceropinion of the witness, under such circum- tain that one Santiago Tijerena executed stances, could not have injured him. the bill of sale under the name of the al. Steagald v. State, 21 Tex. App. 204,5 S. W. leged absent witness; and by two witRep. 853. The state's evidence shows, by nesses positively that said Tijerena placed all the witnesses, that defendant entered the horses in defendant's pasture, and oa the house with bis gun cocked and present- the same day disappeared, and, after an ed, and said to deceased, “Ben Page, you absence of two days, returned. It is also called me a 'son of a bitcb;'" demanded shown that the defendant came to the 20 apology, but fired at once before de- pasture on the same day, and shortly aft

nesses.

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SESS.

er Tijerena's return; that the horses Appeal from city court of Dallas; Kenwere then placed in a pen, and that de- etb Foree, Judge. fendant, in the presence and with the ag. Aaron Kaiser was convicted of a crim. sistance of Tijerena, noted in a book the inal offense, and appeals. Dismissed. brands on the horses. It is further testi

A. P. Worencraft, City Atty., and Y. B. tied by the witness Caronado that defend

Dowell, Asst. City Atty., for appellee. ant tuld Tijerena if he iuformed Pedro about the stock he would not buy any

DAVIDSON, J. Appellant, beiug conmore stock from him; that he did not

victed in the city court of Dallas, prosewant Pedro to know about the trade.

cutes this appeal. A motion to dismiss Santiago replied that he had not told Pe

the appeal is made by the city attorney, dro. This conversation occurred in the

based upon the insufficiency of the recogpastore just after their return from the

nizance, in that it binds the principal“ to pen where the lorses were. Defendant de.

abide the judgment of the court of apnied any knowledge of Tijerena, and testi.

peals," instead of the“court of criminal apfied on the trial that be had never seen

peals," as required by Act 1892. The mohim until some time subsequent to the

tion is well taken, and must be sustained. transactions detailed, and had never had

Cummings v. State, (Tex. Crim. App.) 20 S. any dealings with him.

W. Rep. 706; Parker v. State, Id. 707. The 2. After several witnesses had testified,

appeal is dismissed. Judges all present the prosecution rested its case, and the de

and concurring. fendant declined to offer any testimony, whereupon the district attorney was permitted to introduce other witnesses. This was objected to by defendant on the

TANKERSLEY V. STATE. ground that the state could not reopen its case, nor introduce additional testimony,

(Court of Criminal Appeals of Texas. March and should be confined to evidence in re.

22, 1893.) buttal. These objections are not tenable, CRIMINAL LAW-CONTistasce-ABSENCE OF WITfor the statute provides that “the rourt shall allow testimony to be introduced at

It is sufficient ground for the postpone any time before the argument of a cause is

ment of a trial for aggravated assault that a concluded, if it appear that it is necessary

witness, by whom defendant expects to prove to a due administration of justice Code

that threats of personal violence had been

made against him by the alleged assaulted Crim. Proc. art. 661; Nalley v. State, 28

party, is absent, as such threats, if the issue is Tex. App. 387, 13 S. W. Rep. 670; Hon- self-defense, and the evidence is in conflict as dricks v. State, 28 Tex. App. 416, 13 S. W. to who began the difficulty, are material. Rep. 672; Farris v.State, 26 Tex. App. 105, 9 s. w. Rep. 487; Testard v. State, 26 Tex.

Appeal from Eastland county court; W.

G. Davenport, Judge. App. 260, 9 S. W. Rep. 888; Willson, Crim.

James Tankersley was convicted of asSt. SS 2311, 2312. 3. While testifying on his examining trial

sault and battery, and appeals. Reversed. defendant denied any knowldege of Santi

J. H. Calhoun and J. T. Hammons, for ago Tijerena. The state, on the trial of appellant. R. L. Henry, Asst. ty. Gen., this cause, proved this statement of de- for the State. 'fendant, over his objection that said testimony had been reduced to writing, and DAVIDSON, J. Appellant, having been was the best evidence, and because a predi. | charged by information with the offense cate nad not been laid for its introduc- of aggravated assault and battery, was, tion. If it be conceded that he was cor- upon his trial, convicted of simple assault rect, still we do not think it reversible er. and battery. When the case was called ror, because it was shown without objec- be made application for a postponement tion that he again testified to the same of the trial for the testimony of an absent fact on the trial of Tijerena. He also tes- witness, by whom he expected to prove tified on the trial of this case that he had threats of personal violence, made against never seen said Tijereua until during the him by Renton, the alleged assaulted parmonth of September, subsequent to his ty. The evidence adduced in behalf of the arrest.

state was to the effect that defendant The remaining questions have been con- male a serious assault upon Benton with fidered, but we find no merit in tliem. a hoe. I true, he was certainly guilty of Thejudgment is affiriped. Judges all pres- an aggravated assault. The testimony of ent and concurring.

the defendant, if true, clearly sustained his theory of self-defeuse. The jury convicted him of simple assault. Threats made by

an injured party, accompanied by his acts KAISER V. CITY OF DALLAS showing av intent to execute same, will (Court of Criminal Appeals of Texas. March ! justify necessary resistance by the party 28, 1893.)

threatened. This resistance, however, is

measured by such force as is or inay be RECOGNIZANCE ON APPEAL.

necessary to prevent the threatened inSince the court of appeals is, by the act of 1892, succeeded, as to its criminal jurisdic

jury. Where the issue is of self-defense, tion, by the court of criminal appeals, a recog

and the testimony leaves it doubtful as to nizance on appeal in a criminal cause, after the

who began the difficulty, threats of the passage of this act, binding the appellant “to alleged injured party, made against the ibide the judgment of the court of appeals," is accused, is legitimate evidence, and may not a legal obligation, and the appeal will be become of a most inaterial character in dismissed.

assisting the jury to arrive at a correct conclusion as to who in fact did begin the died prior to 1848. He left, surviving, his difficulty, “because the fact that such widow, Margaret Rock, who died ia the threats had been made wonld tend to year 1866, and three daughters, all of show an attempt to execute them, proba. whom were dead at the institution of this bly, if the opportunity was offered," "and suit. He seems also to bave left a son, the more ready belief of the accused would who died at an early day, unmarried, and be justified to the precise extent of this without issue. Edmund Lee married one probability.” Stokes v. People, 53 N. Y. of these daughters, one Coward married 164; Keener v. State, 18 Ga. 194; Pritchett another, and one Mason, the third. Plain. v. State, 22 Ala. 39; Campbell v. People, 16 tiffs in error claim as the heirs of the wires 11.17; Cornelius v. Com., 15 B. Mon. 539. It of Lee and Coward, and the defendants would be no answer to this position that claim under mesne conveyances from Mathe accused coold or might take adran- son and wise. The south half of this league tage of the evidence of such threats the seems to have passed into the hands of tbe more readily to execute the alleged as- locator, and there is no controversy about sault. If this be true, it would pot excuse it. Nearly 30 years before the trial in the him, or even tend to do so, but, on the court below, according to the contention contrary, would constitute an aggravat- of all the parties, there was a parul partiing circumstance. It is a question of fact tion of the north balf of the survey. The which the jury should be permitted to de- controversy arises upon the manner and cide. The court should bave granted the extent of this partition. The theory of postponement, and in failing to do so plaintiffs in error is that the scope of the committed error for which the judgment partition was limnited to the undivided should be reversed. The judgment is re- half interest inherited by the three daughversed, and the cause remanded for an- ters from Patrick Rock, and that this unother trial.

divided half interest was divided equally

between them; they taking the south HURT, P. J., concurs. SIMKINS, J., half of the north balf, and the surviv.: absent.

ing widow taking the land in controversy, to wit, the north half of the north half, The theory of defendants in error is

that this verbal partition extended to LINAM et al. v. ANDERSON et al. the whole of the north half, and that (Court of Civil Appeals of Texas. March 16,

the land in controversy was set apart

to the wife of Mason and the surviv. 1893.)

ing widow, to become the property of the TRESPASS TO TRY TITLE -- EVIDENCE · ANCIENT

former upon the death of the latter, and INSTRUMENTS.

that the south balf of the north hall was 1. In trespass to try title, where it was

divided equally between the other two admitted that a parol partititon was made 30 years before, by parties since deceased, but the

daughters. A deed was read in evidence, manner and extent of the partition was in dis

without objection, bearing date 21st day pute, a deed made in 1861 by plaintiffs' ancestor

of March, 1801, from Margaret Rock to ber was introduced, which had on its back a plat daughter Mary, the wife of Coward, conshowing the land divided in a certain way. It vesiog by metes and bounds a strip of 375 appeared from a comparison of the handwritings acres running east and west across the that the deed and plat were made by the same south balf of the north half of the survey, person, and were of the same age. Held, that in view of the age and evident genuineness of

and adjacent to the south boundary line the deed, the death of the parties, and that a

of the north quarter. A bund for title contemporaneous partition was made, the plat was also read in evidence, esecuted in 1859 was properly admitted, especially as it was ex

by Lee and Coward to G, W. Lawler and planatory of the deed.

George Wright, conveying a strip of 400 2. It appeared that, by the long lapse of acres off of the south side of the north half time, clear proof could not be made of the exact

of tbe survey, leaving a strip of 375 acres manner of the parol partition; that the deed and

between the land described in the Coward plat were inconsistent with plaintiffs' claim; and that plaintiffs' ancestors had disposed of

deed and in the Wright and Lawler bond, the lands allotted to them, and no claim was for which no conveyance seems to have made to any other lands until many years after- been read in evidence, though it was in wards.' Held, that a verdict for defendants proof that Lee and wife had conveyed would not be disturbed on appeal.

this land to other parties many years Error from district court, Denton coun.

ago. Upon the back of the deed from ty; D. E. Barrett, Judge.

Margaret Rock to Mary Coward was Trespass to try title by M. A. Linam

found a diagram which indicated that the and others against R. B. Anderson and

north half of the survey had been divided others. There was a judgment for defend into four strips running east and west; ants, and plaintiffs bring error. Affirmed.

the south strip having written upon it, Smith & Bell and W.C. Morgan, for plain- acres;" the next strip north baving writ.

“George Wright and G. W. Lawler, 400 tiffs in error. I. E. Piner and J. T. Bor

ten upon it, “Edmund Lee, 375 62-100 toff, for defendants in error.

acres,” and the next, “Mary Coward, 375

62.100 acres," and the last, "Margaret STEPHENS, J. This suit involves the Rock, 957 25-100 acres;” and out of the title to the north quarter of the Patriek northeast corner of this strip was cut a Rock league and labor survey of land, sit- strip marked "W. G. Nelson, 200 acres. uated in Denton county. The land was Ruoning across all these strips, from north patented to Patrick Rock in the year 1856 to south, near the east boundary, was an by virtue of a location made long prior | indorsement, “2,000 varas;" and across theretu; Patrick Rock bimaelf buving I the three strips marked“ Wright and Law.

ler,” « Edmund Lee,” and “Mary Coward," tion of said survey until after so great a an indorsement, “1,000 varas. Plaintiffs lapse of time,-webave reached the concluin error objected to the introduction of sion that the settlement of this controverthis plat in evidence, and assign error up- sy by the verdict of the jury should not be ou its admission. The ground of objec- disturbed. tion, as set forth in their first proposition Believing the testimony, under the cirunder the first assignment of error, was cumstances, to be sufficient to support the that its execution had not been proven. verdict, and there being no other questions This objection is amplified in the proposi- submitted for our determination, we are tion with the statement that it did not brought to the conclusion that the judgconstitute the basis, in whole or in part, ment must be, in all things, affirrued. of the pleadings in the case, and it had pot been shown by whom it was made, nor by what authority it was placed on the back of the deed. The bill of exceptions was approved, with this explana

SCOTT et al. v. WEISBURG et al. tion, viz.: “ It is apparent from a com- (Court of Civil Appeals of Texas. March 15, parison of the hand writings that said

1893.) deed and plat were written by the same TRESPASS TO TRY TITLE-COURSES AND DISTANCES person, and they seem to be of the same

IN DEED-FINDINGS. age.'

1. In trespass to try title, it appeared that It has been held in this state that the J., under whom both parties claimed, conveyed execution of a lost deed may be proven by the north 50 feet of a lot to plaintiff, the balcircumstantial evidence. Craip v. Hunt- ance going, by mesne conveyances to defendington, 81 Tex. 614, 17 S. W. Rep. 243, and

ants. At the time of the purchase by plaintiff, cases there cited. In view of the age of

J. pointed out a fence as his north line, and

a line 50 feet_south, marked by stakes, as his the deed, its evident genuineness, the death

south line. Plaintiff adopted both lines as of all the parties, the fact of a contempora

true, and they were true according to the disneous partition of some kind made by the tances mentioned in the deed to J., but accordparties, we think the evidenre of identity ing to the courses of said deed both lines were in handwriting and age of the deed and 30 feet too far north. Held, that plaintiff is plat tended sufficiently to show that the

confined to the 50 feet of land lying between

the fence and stakes, since the courses in a plat must have been the work of the par

deed must yield to distances when such was the ties to the deed to admit it in evidence,

evident intention of the parties. especially as it was not in conflict with

2. It was not error for the court to explain the deed, but in explanation of it. Plain- his findings by referring to a map used by one tiffs in error, by requesting appropriate of the witnesses in connection with his testiinstructions, might, perhaps, have had mony, and filed in the case, though it was not this issue passed upon by the jury, and

offered in evidence. the scope of the evidence limited; but

3. Neither was it error to find that the

street on which the land fronted ran north, 52 nothing of this sort seems to bave been

west, when in fact it ran for a short distance done. This disposes of the first assign

nortlı, 45 west, where such finding did not afment of error.

fect the case or the conclusions reached. By the third subdivision of the charge, defendants' theory of parol partition was

Appeal from district court, McLennan submitted to the jury, and the verdict in- county; J. R. Dickinsois, Judge. dicates that they found for defendants in

Trespass by George Scott and anotber error under that subdivision of the charge.

against L. Weisburg and another to try Error is assigned upon the giving of this

title to real estate. There was judgment charge, on the ground, as submitted by

for defendants, and plaintiffs appeal. Af

firmed the plaintiffs' proposition under the assignment, that there was not sufficient Wm. M. Flournoy, for appellants. evidence to fairly raise the issue of fact to which it relates. No objection is taken to COLLARD, J. This suit was brought the validity or legal effect of the kind of in form of trespass to try title, by George partition submitted by the charge, and Scott and his wife, Nettie Scott, the appassed upon by the jury. By the third Fellants, against L. Weisburg and Morris assignirent, plaintiffs in error complain of Lochman, to part of a lot in block 15 of the insufficiency of the evidence to support the D. T. Chamberlin addition to the city the verdiet. It thus appears that these of Waco. The part of the lot in dispute two assignments raise substantially the is described in the petition as beginning same question. We have carefuliy consid- on the east line of Sixth street S., 52 W., ered the statement of facts, and, in view of (evidently intended for E.,) 15 feet from the long lapse of time; of the inherent the N. W. corner of a lot conreyed by difficulty, therefore, of making clear proof Wiley Jones to George Scott un July 14, of the exact manner of the parol partition; 1885; runuing thence with the street s., of the fact that the deed and title bond 52 E., 35 feet, for front; and thence bark mentioned above were inconsistent with N., 38 E., 165 feet,-forming a parallelo. plaintiffs' theory of the partition; of the gram. Lochman disclaimed. Weisburg further fact that for nearly 30 years the de- pleaded not guilty and statute of limitafendants in error, and those under whom tions of three and five years, and imthey claim, seem to have acted upon a provements in good faith; interpleaded theory of partition which excluded all in- bis warrantors, Stanley Epstein and Wiley terest in plaintiffs in error; of the conduct Jones; Epstein adopting the pleas of of plaintiffs' ancestors in disposing of the Weisburg, and Jones denying liability as lands allotted to them in the partition, warrantor. The court tried the case, and poi asserting title to any other por- without a jury, and gave judgment for

v.2)s.w.no.8-49

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