The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1883-11-08
HIGHER COURTS,
SYNOPSIS of Decisions Wondered w the
supremt
AID Appellate Coa,h Of ilc state Of
TEas.

Aud Appellate CouJfs Of The state Of
fsa"
A Few Cases Recently Disposed Of
AvPREMR Covnr,
Willis vs.. Cooper, from Hood county
opipion kkWalker, y. J., adopted. hs the
rscord ofktains no statement Of facts, bill
~ exosuiions or motion for new trial, ana
asthe record ~ silent as TO any aoilon ASK
ed or taken upon demurrer, or exception
m nLeading, they will be deemed 10 nave
beeH waived. In this case the amended pc
iIon clearly showed that me SUIT was
thought to try title as well as Tor Damages,
NJ cannot be said Ia the state on tDe recolu
as the case Is presented that defenuhut was
In apy wise preiudiced or injured on the
trial nv the want of endorsement OF ibis
fact upon the petition. A Judgment VIII
NOT he reversed, for abstract error Hhen Tue
Justice OF the case has been reached Al
urmed. ma.
Norton ct al. vs.. Reeks, from DAilas
county. Conclusion by WATTS, J. Aaopteu'
ma napers III the case having oeeh ue
slroyed H. would seem from the recital IN
| the order OF the court substituting ihe
amended original petition that, this DAY
came the parties by their attorneys
! yhpn taken in connection with the rover
sails in the Judgment III effect That D. M:
PAYNE, attorney for appellants announced
10 inc court that they would not then up.
| npar To make answer, and the TURNER Iact
| that the day Judgment was rendered mo.
| lion for new trial was filed, signed Payne o.
| PAYNE, attorneys for appellants, IL Wouiu
| clearly seem that nothing in the record
| nearing to The contrary appellants nau
peared and submitted themselves TO
court. Affirmed.
thompson VS.. johnson; from JACK county
Opinion by Delany, j. Adopted. Where
he com missioner OF the general land office
masses on the validity Of an assignment OF
| a certificate. and issues patent TO the
| assignee. from that time the assignment
hacnmes record of the land office, and
| conv thereof is admissible without oeing
recorded in the county where the lana llcs'
The act of 1873 does not apply TO trans
| fers of a certificate, but to transfers mace
after the occupant has resided on the land
for three wears, at which time he has ac-
! nnjred an euutabie lien thereto. When a
| larry mates valid location upon land II
sewers the land from the public domain for
one year, and location on it by another
party during that time 's an 70
the de;gn Wiz 81 the tbs YANG nartv cefi bns
appropriated lands by valid location and
| survey. no one has an interest in that lana
except Che locator and the state and Il tue
| state issued q patent upon d Herent GER
Iificate, others have no right to complain.
Here A. and wife settled on the
land in 1873, made improve,
ment, and remained thereon unt,i
0ctober. 1874, when they sold to Is.
and left the place. and B. on that day ioca-
ted valid certificate upon it and in De-
Gambler following had a survey made ana
forwarded to the general land Office and 10
January next received patent. Held. Al
| A and wife abandoned the land when B.
filed upon ig, this file appropriates the LAND
for the time being and It was 3, not open 10
an entry on Octooer 10th. Afnrmed.
Calhoun ct al VS.. Lumpkin ct al, from
Anderson county. Opinion by Willie, C j.
The theory of the plaintiff, being that the
land in controversy was her homestead ana
conld not be encunbered by mortgage
such as was created by the deed OF trust ex-
ecuted by herself and husbund to sustain
this 1t was necessary for her to prove, ootn
that the deed although absolute IN form,
was intended as mortgage and was not o
deed either conditional or unconditional,
and that the place was her home at the
time of the execution OF the instrument
failure to prove either of these would be
fatal to her case. In determining whether q
given trausa action amounts TO a sale, or a
mortgage, courts OF equity must LOOK TO tne
intention of the parties to be gathered from
their situation and conduct, the surround
ing facts as well as the written memorials
| Of The contract, 1t the relation o
debtor and creditor previously existed, the
onestion is, does 1t still exlst2 In case
where an Indebtedness did exist but was
extinguisheu by the making OF the deco
and the appartnt vendor mad the prlvless
of a recoDveyance upon payment OF tnt
amount due, held this constitutes condl
Iional sale, 1t is a good fact as to the re
lation of debtor and creditor to ascertain
whether or not the apparent vendee mas
any right to On action to recover from MI
vendor the money forming the basis OF tc
conveyance. In all controversies as -
whether an instrument IS a mortgage OF
sale, the decision rests upon III
necnliar circumstances of the case. Before
a mortgagor can recover possession O
nroperty Of which the mortgage IS right
fulIy in possession he must tender tn
amount of money due on the mortgage, IN
less the possession is nnlawfuily obtained
when no such vendor is necessary u leAa
Law Review, D y. Affirmed.
McSween VS., Yeti ct al from Lampasa
county. Opinion by Willie, C. ]. Art
4 1913, Revised Statutes, governing p esding
| IN cases of trespass to try title as TO VIVA
may be proven under plea o
not guilty Is a re-ensctment OF I'M
law as il previously existed IL II
addition to the plea OF not guilty defender
sets up any special defences, the effect o
the plea is merely to impose on plaintih tn
necessity OF proving his titie and deienu'
ant is limited to his special deiences as Sc
up. Where not guilty IL alone preaded ant
defendant introduces evidence In confession
nd avoidance, plaintiff can Introduce evl
depce of confession and avoidance OF sucf
evidence without pleading it. II defendan
pleads not guilty snd special plea settinl
M title In himself and introduces evi
dence Of such title, plaintiff must plead
such evidence as he wishes TO appear In re
buttal Reversed and remAmded,