33 Tex. 777 | Tex. | 1871
To supply deficiencies in a record by affidavits in ordinary cases, would not be permitted in this court. But the circumstances under which they are here presented, we think warrant their admission; at least so far as to explain the diminution of record. And when that is done we feel bound to presume, in the absence of record proof to the contrary, that the district court had jurisdiction of the parties and subject matter.
The equity of redemption in the lands described in the petition passed from Fenner to Borland and wife by the deed of January, 3, 1860, and a decree of the district court or of a probate court which did not foreclose it, is not a decree on which it could be sold. This doctrine is fully supported by antecedent Texas authorities.
The verification of the petition for injunction was sufficient, so long as the facts were not called into question. We think there can be no doubt the absence of the fiat of the district judge was waived by the attorney for Floyd, John H. McClanahan, and that he did also waive the service of citation by a written waiver properly filed in the case.
We therefore can find no error in the judgment of the district court to warrant its reversal; hence it is affirmed.
Affirmed.
Mr Justice Ogden did not sit in this ease.
