The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-06-21

L
The following cases were decided
S. c. Upham VS.. w. w. Chapman,
from Hill county; judgment affirmed.
A. M. Wilson VS.. NJ. c. and J. S.
Helms ct al, from Collin county; re-
yersed and rendered for appellant
r. S. Willis VS.. Lewis Moore ct al,
from Falls county, affirmed. A. }.
Stayton. A. j..
VIM. Wahomond ct al VS.. e. H.
Merritt ct al, from Tom Green
county; reversed and reformed, so as
to decree the entire GAO acres Of land
subject to the lien, and ordered sold
for its satisfaction. Willie, G. j.
Opinions of the court of commits
sioners of appeals were adopted in the
following cases:
John r. Shearn VS.. J. S. Davis. from
CoryeH county; judgment reversed
and rendered. Opinion by Walker, J.
! VIM. Brown ct al VS.. g. NJ. McLen-
an, from Falls county; affirmed. Opln-
ion by Watts, j.
w. A. Taylor and wife VS.. Theo.
Bland, from Taylor county (Judge
West not sitting; reversed and re-
manded. Opinion by Watts, j.
Rachel Miller VS.. John M. Revere,
from McLenan county; affirmed:
Opinion by Walker, j.
Johnson q Park VS.. Bruno Dart;
from Limestone county.-1eversed
and rendered on award of commits
sioners of appeals.
Hearne and Port Sullivan bridge
company-vs. Insley, Shire & Co.; from
Robertson county. Reversed and re-
manded on award of commissioners
of appeals,
M. L. Hertzburg VS.. Houston and
Texas Central railway company, the
case in which Il drummer got judg-
ment on account of the road refusing
to pass him on ticket which had
been exchanged for that of another
drummer, so they could exchange
routes of travel. A motion for re-
hearing was submitted.
Similar motion us above was sub
1nitted in the case of IL. A. Burrow
VS.. G.. n. Brown, administrator.
In Shearer VS.. Davis above the
Judgment is reversed as to so much
of the amount of it as is in excess of
the value of the land from which the
plaintiff was evicted, and the supreme
court should render judgment against
defendants for 1920 with 8 per cent
from May IL, 1875, to September 8,
1877, the date of the judgment, max
ing in all $44940, with legal interest
thereon from said September 8, 1877.
In Willis VS.. Moore ct al the deed
in trust made by Lewis Moore to Sc
cure the notes executed by him to
Reed and Smith having been duly re-
corded, it must, says the court, be
held. that A. J. Gill bought the inte-
rest of Lewis Moore in the crop upon
the land on the first of August. 1881,
with notice of whatever right the
appellant, by virtue of the transfer
on the notes which carried with them
as an incident the security evidenced
by the trust deed, had in the crops
then standing, ungathered upon the
land.
There might be some difficulty in
determining the true relation which
existed between Lewis Moore and j.
Gill under the agreement of Deem
Der "a, 1879; but it is treated by APP
pellant's counsel as a partnership, IN
which, for their mutual benefit, the
land was cultivated by the latter, the
material for that purpose being in
part furnished be elch, the net
proceeds to be equally dl-
Vided between them. This Is
probably the true Relationship
OF the parties, rather than that they
were landlord and tenants. and we
will so consider them in disposing OF
the case. The question for our decl
sion is: Is the purchaser of mort
gagged lands as against the mortgager
or any person claiming under him 10y
al purchase of the crops, entitled tC
such crops as were standing ungath
cred upon the land at the time of his
purchase?
A. j. Gill does not necessarily stanC
in the same relation to this question
as would Lewis Moore were he the
claimant.
Justice Stayton, as the organ of the
court, argues this question in an ablt
and elaborate opinion, comparing the
law and presidents from English as
well as American authorities. 1t can
not be questioned, he says, that il
England and in many of the states Of
this union the MORTGAGE l:
deemed the holder of thu
legal titles, and that upoI
,sSch title he may maintain ejectment
against the mertgager or. And where
such is the rule, many decisions art
to be Gound, in which it is held, thai
neither q mortgager nor tenant I'M
der him, claiming through a least
made after the execution of the mort
gage, is entitled to carry away the
crops growing upon the mortgageC
land at the time of foreclosure, or &C
tual entry by the MORTGAGE; anC
this upon the theory that from the
date OF the mortgage the mortgageI
is but tenant at sufferance; and
that lease made by him being Unau
thorized worked disseizin. The cast
Of Lane VS.. King, in 9Th Wendell
page 5S5, in which the English opin
ion by Lord Mansfield, in Keech VS.
Hall, 81 Douglass, is referred to, il
cited as a leadiRg case in America.
In this state iShas been held. from
an early day, that mortgage is bu
a security for debt; that the title t,
property mortgaged remains in tn
mortgager, and with it the right o
possession, which is one of the ordi
nary incidents of title. Such bein.
the legal effect of mortgage in thi
sLdJe, III Will DC ICdeuAl oCOA Vheso VI
foundation upon which the rights o
mortaagers is based in England an
some OF the states wholly fails Ga
illustrated by Justice Stayton in tn
specifications of the rules governing
there and here) There is no sue
thing in our practice as the right t
redeem after foreclosure which
made by sale.
If there be nothing in the contraC
of the parties by which land is COZ
viewed. nor in the circumstances a.
tending the sale, evidencing intentio
of the parties, that crops nearly
quite matured should pass with Ian
81 lit is difficult to see. upon wht
Ia .ple it can be held, that propert
strictl,' personal in its charactt
shonld pass by an instrument whlc
upon its face purports to convey lam
The weight of authority, howeve
is to the effect, that such crops wi
pass by the sale of the land if the
belong to the owner of the land {
ZINE of sale. AS, however, the croI
are separate and distinct in their n;
ture from the land upon which the
grow, the ownership of the one, eve
on mortgaged property may be in or
person, and the title to the other i
another. and whenever crops, grow
ing or standing upon lar
would, by lien given by the own
of the land, or acquired by law, hay
in law or in fact been severed In oWl