Gilder v. City of Brenham

Citations

• 67 Tex. 345
• 3 S.W. 309
• 1887 Tex. LEXIS 881

Syllabus

<p>1. Competency of Witness—Statute Construed.—The inhibition contained in Article 2248, Revised Statutes, against executors, administrators • and guardians, which prohibits them, as well as heirs of the decedent, from testifying as to any transaction with or statement by the testator or ward, unless called thereto by the opposite party, is applicable only to those who are parties to the suit, and does not render incompetent other persons who, though interested in the issue to be tried, are not parties.</p> <p>3. Cases Distinguished.—This case distinguished from Simpson v. Brotherton, 62 Texas, 170. There the widow was held incompetent to testify, not because she was interested, but because she was a real party, though not named, in a suit brought by the husband to recover her interest.</p> <p>3. Dedication—Cities and Towns.—The owner of a strip of land in a town sold in 1861 one end of it, declaring at the time that he intended to leave a street between the portion sold and the other end, pointing out the part to be used as a street, and declaring that be had other property that would be benefited by it. In 1876 the purchaser enclosed the lot so purchased, and the vendor then showed him the corners of his lot, declaring that the space, which was the usual width of a street, between it and the other end of the lot which he had sold, was left for a street. Other parties purchased afterwards and improved, with reference to the space referred to being a street, and relying on the declarations of the original owner to the effect that a call for a reservation of a street was not necessary, as he had given the space to the public for a street.</p> <p>In a suit to restrain the city from removing an inclosure on the strip of land claimed to have been dedicated, held:</p> <p>(1) That the facts constituted a dedication of the space as a street, so far as the owner could by his own action, make a dedication.</p> <p>(2) But in a suit between the city authorities and the represe