The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-07-02
THE HIGHER COURTS


Goldfrank, Frank ~ Co. va. w. II.
Young, from Bexar County. Stayton,
i. There Is no essential difference be-
Teen mortgage with power of sale
or a deed of trust made to third per
son with power TO sell, in default of
payment of o debt which either is
biven to secure, and an ordinary
mortgage, with reference to the right
to foreclose either through judR
or decree of court after the period OF
Limitation has elapsed. A lien given
by eitLer In such cases cannot DO en-.
forced through the judgment or dc
cree of q court after the debt secured
by the lien Is barred. In actions for
the recovery OF debt, and like actions,
the statutes Of limitation affect the
remedy solely. Before the adoption OF
the Revised Statutes an adverse p os.
session of real or personal property,
for the period and under the circum.
stances prescribed by statute, was
held to give title to the thing possessed
and destroy the title OF the former
owner. The statute (Rev. Stats, Art.
3l96) now puts the question as to the
effect of the statutory bar beyond con-
troversy, 80 far as II concerns realty.
The same language in reference to per-
sonal property being used now as In
former statutes, it 1t held that
receive the same construction
as formerly. Tho Legislature having
declared what shall be the effect of the
statutory law in actions or suits re,
lating 10 the title 10 real proper ", In
the absence Of such declarations, or a
settled constitution giving 10 the law
Of the statute similar effect In other
classes of actions and suits mentioned
In the statute, II is held that the inten-
ton was TO give the same effect TO the
law in other classes of cases.
A pledge may enforce the debt
through the sale OF property Il such
right pe originally.given by the con-
tract OF the parties, notwithsta
debt which the pledge 10 given to
secure may be barred by limitation.
Constituting former decisions OF this
court on the subject and overruling oil
Conflicting decisions with this, the
court now holds that, although the
debt may DO barred, yet II tho party
has secured this debt by q deed OF
t.ust with power 70 soil, the power
may Cbe executed and the property
solCX Reversed and remapded.
~ .sfisan Moore Va. A. w. Moore, from
; j
aud proper course TO have question OF
costs soItled between parties litigant Is
by motion fled in the District Court
} have tho costs retaXed, accompan.
I by q correct bill of costs. (Allen
VS.. Woodson, 60 Texas, 6j7; Lockharl
VS.. Sucker, 40 Texas, 765; Castro Va.
lilies, IL Texas, 39i Jones va, Ford, 60
Exas, l27) and II pending the consld-
yration OF the motion an execution for
{ osts Is issued, II can either be en-
toined or recalled by the court. Re.
yersed and rendered.
Robert Millsvs. ". Il. Hicks et al,
from Collin County; conclusions OF De.
laney, !. Adopted. In this suit tho
conclusions only OF the Commission
of Appeals are adopted, which are,
that under the facts and pleadlngs
there is no error In the judgment as
rendered. Affirmed.
n. w. Ward vs. Pollock & Gibbs,
from San Saba County; Delsny, 8.
Adopted. This was an action for dis
recover the sum OF S2i7. The writ was
issued by n Justice OF tho peace and
made returnablo 10 the District Court.
In that court appellant excepted TO
tho petition because II showed on its
face that the writ could not be legally
issued for larges sum than Sl47,
which was below the jurisdiction OF
the court. The exception was sus-
tained and this ruling OF tho court pre-
sents the only error assigned.
Appellant had leaned house TO ap.
pellees for term OF two years, COM
nencing May IA, 1883, the ront
being payable quarterly. The rent
for tho first year was paid, and in part
for the second year. But for the quar-
lar ending November IA, 1881, the
ann OF $i7 was unpaid. Two days
after the end OF that quarter appellant
iasued his writ. He claimed lien for
~ on the quai .er which has lust
closed, tic0 for tho curront quarter
ondln1 February IA, 1855, and 500 for
n quarter which had not yet COM
rnencod, but which he supposed would
Commented February IS, 1855, and end
Nav Is, 1856. Held: Appellant had q
lien for the rent In arroar and for the
rurront quarter, which was In process
ri bo,oming due, but not for future
oeriods which had not commenced.
Al furthest appellants lien would not
sufhorize the issuance OF q writ for
more than $i47, and that was below the
.uriediotion OF the District Court.
1fSrson W. Bear Bros. q Hirsch, |
Texss Law Review, a, b. and b. As
4 ;, - IN -. cochran, 90 Texas GO. J
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