Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-01-28

must be mutual and due in the same
right, and that d joint debt cannot be
sci off against a separate demand nor a
separate demand against a joint one,
and that this rule applies 10 partner
ship debts. But defendants counter
claim setting up balance on a pre-
existiug partnership with plaintiff
falls within the spirit or meaning OF
the rule where, as in this case, the de-
PENDANT with reference TO his counter
claim alleges a partnership with the
plaintiff only, the debt cannot be
deemed joint demand, and the court
below erred in striking out the defend
ants answer. Reversed and remanded
upon the report of Walker, commits,
-ioner. Willie, c. j.
w. T. Nettles vs.. Robert Smith,
from Dallas county.-In determining
whether or not q conveyance OF land is
q mortgage or a conditional sale, the
criterion is this: If the relation of
debtor and creditor remains after the
5Xecution Of the instrument, and the
debt still subsists, it is a mortgage.
But If by the transaction the debt is
eXtinguished and the privilege Is given
10 the party executing the in
strument OF refunding or paying the
money by time named, and by do
ing so he is thereby entitled TO re-
conveyance of the property, it is con-
ditional sale. The evidence in this
/ case was to the effect that upon the
/ execution OF the instrument by Nettles
and wife, Smith executed release OF
the deed of trust and surrendered the
/ note, and testified that Nettles did not
thereafter owe him anything except
for rent. The court did not err in re.
fusing TO hold the instrument to be a
mortgage. Affirmed on report of Com
missioner Watts. Willie, c. j.
w. Ii. Beatty W.. w. w. Bracks
| from Burnett county-It has been laid
down as rule that the satisfaction by
payment of the money to the grautor
by n third party for the benefit of the
| grantee will not operate TO discharge
the land from the vendors lien, when
the transaction between the parties to
il showed that the Indebtedness for the
| purchase money on the part of the rea
purchaser continued TO subsist, and
that by the agreement of the parties the
actual lender of the money, which paid
for the land was in fact substituted fol
] WV NNHubi W Nilbtll we money Wa
paid. In this case, III. & w. iu,the frs
instance loaned the money to G.
wherewith To pay Y, the vendor, anC
Z. loaned to said G. the money to re
pay Ill. IL W., and the note sued OF
was executed for the security of thi.
last note. The appellant was the
debtor-purchaser of the lots, and as tn,
note stipulated that it was TO secure
the purchase money of the lots, ia,
vendors lien followed ii into the hand,
Of assisnees. Objection that there wa,
error in admitting evidence OF III,
statements of the appellant rs to wha
was included In the settlement of tn,
partnership business of himself aud G;
was untenable because the agree men
OF dissolution was entered into afteI
the purchase OF the lots and subsequent
TO the execution of the note sold on
Affirmed on report of Commissioner
Walker. Willie, G. j.
W. 5. Caruthers We. j. S. William,
u Co. from Burnett Countrywide sui
} was against appellees and l.. upon ,
contract 10 deliver cattle. The AN
swer was general denial, demurrer
anu amended answer that defendants
Niillams d Co., were securities for /.
Exception To the answer was oyerruled
and plaintiff dismissed as to L.. who
was not served. The exceptions were
overruled upon the ground that thu
appellees were in fact securities TO,
Longley, and that no Judgment could
be rendered against them, as appellant
mad discontinued as TO Longley and
nau neither alleged nor proved that
Longley was either dead, insolvent or
beyond the jurisdiction of the court
The rule in such case Is that when
upon the face Of the paper all the mar.
Ties appeared 10 be principal oblipors
me statute which prohibits discon,
tinuance as TO theprincipal unless deal
ihsoivent or beyond the jurisdiction OF
me court, does not apply, but that such
provision of the statute has application,
only where the party had defined bis
position as surety, etc, in and by the
Terms OF the instrument he had execu.
ted. Whatever may have been NJ
,ne OF practice in such case. before
~. Auoplion Of the revised stat
svi,a.. sue rule now ", that
wnero me suretyship Is show n by the
terms OF the instrument, ii deyolvc.
upon the plaintiff TO plead and estaS'
iish the facts that would enlitle lin,
70 judgment against the sursts
! aohe. A.ppellee's answer did NOT as
sert amy defense TO the appellants, an.
swer and the exceptions shomld haua
osch sustained. Reversed and ~.