The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-10-30

the leased property. An agreement to re-
turn possession of the premises and prop
erty leased in such condition as it was re-
ceiyed, is not stipulation which will hold
the lessee responsible for accidental de-
struction by fire, nor does it bind him to
rebuild, OF otherwise impose loss on him.
Affirmed. Bonner, ].
n. 4 ii. Hunter vs.. Woldert; from Smith
county Although mortgage with power
of sale contains no express power to con
yey. that power will be implied from the
mower to sell, the transfer of title being
necessary TO accomplish the object of sale.
The mortgage covering the homestead and
containing the stipulation that whatever
surplus over the debt secured by the
mortgage, should be realized from sale if
made, shall be paid to the mortgagors the
surplus thus realized becomes proceeds
arising from involuntary charges in the
form Of exempt property The MORTGAGE
holding other claims agains the mortgager,
cannot appropriate such surplus to the pay
mcnt ofhis unsecured debt, on the ground
that the sale extinguished homestead
rights, and reduced the surplus to personal
community funds. Reversed, and iudg-
ment rendered for appellants for surplus
fund, Could, /.
Edwards, Elmer & Breen VS.. Norton;
from Wood county Title to real estate be-
ing claimed by virtue Of purchase at sale
under execution for costs, and the prcmi-
SEES being at the time of the purchase in
charge of a receiver appointed by the court
| pending litigation, the court properly sus-
tanned exceptions to so much of the petition
of Intervention as set up title under this eX-
ocution sale, upon the ground that the
premises were not subject to levy and sale
whilst in the custody of the court. The in
tervenors having purchased at the execu-
ton sale, pendcnte lite, they purchased at
their peril and were less entitled to contin-
uancc than had their rights accrued prior to
the litigation, and the court did not err in
refusing them a continuance. Affirmed.
Could j.
Fulton ct al VS. Robinson ct al. from Tar
rant county The receipt which forms an
important question in this litigation, was
given when article 1913, +. d., was in force.
The mere fact that the agreement of the
sale of land therein mentioned was i'll the
form Of a receipt, will not, of itself defeat II
as a memorandum of a contract for the sale
of land, Insufficient in other respects. The
memorandum would be sufficient under
the above statute, if it was such as required
by the statute of frauds. The mcr' oran.
dun under the statute of frauds should be
so reasonably definite and certain within
ITSELF or other writing referred TO, as tC
parties, consideration and subject-mattor
that specific performance can be enforced
without resort to parol testimony. Tho
settled rule in this state is that the consid
Grafton of u sale of lands need not he eX
pressed in writing, but mCy be proved
ny parol, The court below erred in holding
otherwise. Bonner, j.
Sullivan. VS.. Gammagc; from Anderson
county. The land involved in this contro-
versy was originally the property OF p, but
by him included in mortgage executed in
favor of appellant, Dee, %, 1874 In July
1876, one l. recovered a judgment against
p, and on August I, 1877, the land sold ut
execution sale as the property of 7, and
bought by this appellee. June H. 1879 |
decided the lard with Others to the mort
gOgoe appellant, Appellee sued the appel
liant on his purchase at execution sale. The
court held that appellants mortgage was
merged in his deed, and the appellees was
the superior title, and gave Judgment &C
oordingly. In this estate til,
mortgager is regarded as thu
real owner, and until fprcclosur,
{ is entitled to the provision of the mort
gagged premises by the execution sal
in this case, the title and right q
possession vested in appellee, Subicc
10 the appellants mOrtsape, a iorcCloS
urc and sale thereafter. had, in pre-
cecding against =, without making appcllc
party, would have lift appcllce'S title an
right ofpoSscssion unimpaircd As agains
appellant appellee continued to hold super
ior title and right of possession, but subieC
to the mortgage. The court erred in hold
ing appellants mortgage cytinguished q
to appellee. Reversed and rcmandeC
lGoull'i.