Hardin v. Abbey

Citations

• 57 Tex. 582
• 1881 Tex. LEXIS 183

Syllabus

<p>1. Trial without jury —Conclusions of law and fact—Assignment of error.— In cases tried without a jury, a party desiring to appeal should avail himself of the statute requiring the judge, when requested, to state in writing his conclusions of fact and law; the object of that statute being to enable the appellant to point out in his assignment of errors the precise points on which the case was decided.</p> <p>2. Same — Fundamental error.— When the assignment of error is too general, the court may nevertheless take notice of fundamental errors, apparent of record.</p> <p>3. Failure of part consideration —Cancellation — Specific performance. D., under a power of attorney from Mrs. Abbey, administratrix of her husband’s estate and survivor of the community, conveyed a tract of one thousand three hundred and sixty-eight acres of land to A., the attorney of H., the consideration being the satisfaction of a judgment for a community debt in favor of H. against Mrs. Abbey, and an agreement signed by A. to reconvey three hundred and sixty-eight acres, an average of the one thousand three hundred and sixty-eight, to Mrs. Abbey and D. A. conveyed a specific one thousand acres of the tract to H., and afterwards disposed of the remaining three hundred and sixty-eight acres to innocent purchasers. Mrs. Abbey, joined by the children of her deceased husband, sued for the entire one thousand three hundred and sixty-eight acres, and in the alternative for specific performance as to the three hundred and sixty-eight acres. Held —</p> <p>(1) That a decree which in legal effect cancelled the conveyance, giving the plaintiffs the one thousand acres of land, and yet left H.’s judgment satisfied, and his rights, or (he being dead) the rights of his executrix and devisees, unprotected, was inequitable and erroneous.</p> <p>(2) That the proper decree was to give Mrs. Abbey, who had acquired D.’s interest, three hundred and sixty-eight acres out of the one thousand conveyed to H., the three