The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-03-30
COURT DECISIONS.
synopsIa Of Opinions Of the supreme Court

synopsIa Of Opinions Of the supreme Court.
NJ. Van Alstyne vs.. Houston & Texas
Central Railway company; from Harris
county. The first error relied on is ~ fol'
lows: "The court erred in not constituting In
in his charge" certain resolutions, "in re-
lation TO the action of the defendant com
pany in authorizing an increase and ex-
change of its certificates Of stock. This was
documentary evidence and its legal effect
should not have been left to the jury"
Held, u judgment in civil case will not be
reversed for mere failure on the part Of
the court below to cover in the charge every
phase of the case, when attention is not
called to the omission by charges asked or
otherwise. Affirmed. Bonner, j.
Houston & Texas Central railway com
pan, w. NJ. Van Alstyne; from Harris
coUn;y. A owned five shares Of stock in
appellants company. He transferred
MS certificate to "a second party, who
understood ii, receiving GER
tfca'e ~. assignee of A. Five years alter,
A ass gned the same stock to appellee's tes-
tator, who was director of the company.
The certificate issued to appellee was
claim for the five shares of stock being
based on an invalid certificate cannot be
sustained. Where the means OF inquiry
are equally open to both parties, if mis-
take occurs without any fraud or falsehood,
no IT lief can be granted on account of the
mistake alone. Equity will not favor or
aid party thus situated in his acts OF neg
| ligenCe or carelessness where he seeks to
make either available as the basis whereby
to obtain and assert an interest adverse to
that 0! his cestui qui trust. Though a
court Of equity will relieve against mis-
take il will not assist q man whose condition
is att ributable only to that want of due dill
! gelcr which may be fairly expected from a
reasonable person. Reversed and remanded.
Opinion of Walker, P: C., adopted.
ris county. A creditor seeking to enforce
the trusts under an assignment cannot sue
alone, but must either make the other cred
itors parties or must bring the suit in be-
half Of himself and all the other creditors
who may choose to come in and take the
benefit Of the decree. Where the trust is
assented to and the purpose is simply to
carry out its provisions, all the beneficial
ries are alike interested in that object and
in reaching that same result, and it is just
to the trustee that the controversy should
| be ended i'll one proceeding. Affirmed.
Gould, C.. j.
+. StacI vs.. D. B. Ponton; from Lavaca
county. When an answer alleges that
plaintiff, availing himself of defendants
| ignorance and obtained from him a note
for a greater amount than was actually
due, evidence to this defense is admissible.
Reversed and reInanded. Gould, C. j.
VIM. Ruleman 1T al. VS.. Joshua Pritch-
EFT ct al. from Grayson county. Unless it APP
pears in certificate granting a power OF
attorney that the instrument was explained
to the wife by the officer, and that thereat-
ter she acknowledged it to be her act and
declared that she wished not to retract it..
the certificate is fatally defective. 1t is not
enough that married woman should ap
pear before an officer apart from her hus-
band and without having the instrument
explained to her, acknowledge that she
had executed it freely and understanding
its purport. Reversed and remanded.
Gould, c. j.
Robert Brewster ct al, VS.. Georgia A.
Davis ct al; from Harris county. Ordina-
rily when paroR evidence is admitted to
intended by the parties as a mortgage, it is
done with the view Of its enforce
ment as mortgage, On the
ground that equity forbids the use
OF the deed as a conveyance where the par
ties only designate it to operate as Sc
curity, parol evidence IS allowed to show
that such was the intention of the parties.
whilst hesitating Says the learned judge,
delivering the opinion of the courtO in
reaching any conclusion, he is individually
inclined to the opinion that the practical
effect of such stipulation as to possession
is to make the conveyance imperative at
the option of the grantors, should no judg-
ment be rendered against the sureties." If
so, the deed would in effect be mortgage.
m / = ~ 4
consideration was to be paid if there were
no recovery, show that the validity of the
sale was not dependent on the recovery. A
fixed price was agreed upon and an abso-
lutte conveyance made. The court say: On
the whole case the circumstances in evil
dence are insufficient to establish that no
sale was intended, but merely an arrange
ment for security. Reversed and remanded,
Gould, ].