The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-07

Of transfer from, or under the sovereignty
Of the soil. The difference in a vice in a
link OF chain of title preceding a patent,
and vice IA some conveyance after the
patent has issued, rs respects the question
Of limitation, is illustrated by the cases Of
Veremendi VS.. Hutchins; as Texas, 49,
and Burleson VS.. Burleson; (2S Texas, Az
In a case of location and patent upon land,
title TO which mad already passed from the
government by prior grant perfect in
every respect, possession under the junior
grant from the government for the requisite
period OF three years would give perfect
defence against the owner under the old
grant. Even a link in chain of title sub
seqGent to the patent which is not void
but voidable, will constitute link In the
chain of title within the meaning Of the
law, even though such voidable deed had
its origin in transaction between the
grantor aud grantee which was fraudulent
as to an estate represented by the grantor,
An occasional invasion of he county ia
which the land is situated by hostile bands
of Indians which made it unsafe to live in
the country would not prevent the run
ming of the statute Of limitation. Rehear
ing refused.
Davenport and wife VS.. Miller Bros
from Coryell county. Opinion by Stayton
| j. The land, the sale of which is sought Ia
| TO be nioined, was bought by ID. from w.
and purchase money note given by the
former to the latter, subsequently in Il suit
IN which b. ID. ana w. were parties, judg
ment was rendered, vesting title in Ii. to
the said land and said note, which iudg
ment provided that upon payment to b. oil
the note, title should vest in ID. Afrer-
wards b. recognized ID. as the owner of the
land note and made a deed to B. for the
land in consideration of the cancellation oil
the note. ID. and wife executed deed to
Is. for 80 much of the land as was covered
by the homestead, for the same Considera
ton. Held, from the answer OF b. the
agreement between ID. and b., it Is evident
these conveyances were not intended to alb
solutely convey title to b., or to relinqusb
any right ID. and wife had, but was only in
tended to put title in b., az security foi
the debt due as purchase money, yet b
held superior outstanding lien on the
land to those held by appelees
through the record Of their Judgment
against d., and as b., by his answer nd
mitted the right of appellant to be subro
gated TO his rights upon payment OF the
purchase money, principal aud interest due
him upon such payment as made, the court
correctly rendered judgment subrogatinl
appellees to BIS lien. Reversed and Re
handed
Hubert vs.. Grady; from Brown county.
Opinion by Stayton, j. Where an instru
ment is not drawn promissory notes are
usually drawn,in that the statement of the
sum to be paid proceeds the promise to
pay, and the sum 20 Which the promise re.
lates is expressed in figures, yet if the IN.
strument evidences n clear and explicit
promise to pay to the payee named, a
stated sum at Il stated time, it is admissible,
and should be considered the same as
promissory note in Its usual form. While
a court OF equity will not compel a person
holding under an exeCutory contract to pay
the purchase money and take defective
title, unless he has purchased with notice
of the defect; yet under the facts of this
case, II appears with reasonable certainty,
that the deed of the appellee passes title
to the land to appellant. Title acquir d by
limitation, il clearly shown, will be sufli.
cient evidenced right of vendor to con.
vey, in suit by him against vendee, for
the purchase money, at least, when the
vendee has gone into possession even under
an executory contract, and has not been dis
turbed by adverse possession. Affirmed.
Houston & Texas Central railway vs..
Richards; from Collin county. Opinion by
Delany, ]. Adopted. Where plaintiff had
been section hand on the road and was
perfectly familiar with all the modes of its
operation, and yet upon dark rainy night,
with strong wind blowing in his face, he
travels upon the track between stations,
knowing the express train was coming be-
hind him, that it was due and might be
upon him at any time, and the only spe.
cific allegation of negligence on the part of
defendant was that there was no headlight
burning on the engine, held, the court
erred IN treating the absence Of headlight
as gross negligence on the part of defend
ant. And rs the injury did not occur at
station, or crossing, but at a place where
plaintiff had no right to be, and where
there was no reason to expect he would be,
and where the record fails to show that
defendants servants were aware of plain.
tlif's presence on the track, and where, un-
der the circumstances, ii Is not certain that
ordinary care on their part would have pro-
tected him against the consequences of his
act, Held, that the court erred in refusing
the railway company Il new trial. Re-
versed and remanded.
Governor vs.. Bennett, 81 Texas. 80. Nor
rison vs.. Walker, - Texas, Is. Turner VS..
Brown, Texas, 1897 The generality of the
proposition that new, distinct and indie
PSh'Nhe Nuuoto VI uOtioi CulluOJ lOlItl
or introduced into the case by amendment
rs stated in Beal VS.. Alexander, (6 Texas
537 and in Carter Va. Reynolds, lib. s, G.,
was explained and qualified in Henderson
vs.. klssaln, supra, and the rule deducet
from all these cases expounded in William.
vs. Random, supra. The rule as stated il,
the latter case has not only been followed
since, but its applicability has been literally
extended, as in Smith vs.. McGaughly
upon allowing by amendment, the joining
of new causes of action which occurred
since the commencement of the suit. Thl
elect OF our decision warrant the state
ment of the rule as given in Reed vs.. Har
ris, 90 Texas, 1851 1t is competent for .
plaintiff to amend petition brought on ,
cause of action to which the defence of tn,
statute OF limitation has been interposed
setting up as n cause of action on the sam,
demand an acknowledgment of the iustic,
oil the demand aud relying for recovery
on the new promise. The record does moi
enable us to say, plaintiff properly amended
her petition. Affirmed.
Hearne and Port Sullivan bridg,
company VS.. lnsley, Shire e Com
pany, from Robertson county. Opinion
by Watts, ]. Such rs is required by til,
true spirit and meaning of the contract
and the intention OF the parties as therein
expressed constitutes a sufficient pertor
nance OF a contract. Parsons on Con
Vol. 2, p. 655. 0 Wallace, 363) The charge
OF the court in this case involves the prop.