Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-30


holding deed OF assignment invalid
i0r causes not apparent upon its face,
when such objections were urged be-
lore proceeding to hear proof, the
trial court erred, Reversed and re.
manded.
Getzweller VS.. Collier, from Bosaue
county. The action in this case was
founded on purchase-money notes.
The answer Of the defendant set up
as defense to this action breach OF
warranty in the deed conveying the
land for which the notes sueu on were
given. 1t aflirmatively appears from
the answer, however, that the defend.
ant had notice of the outstanding Sill
perior title at the time he purchased
the land and received the warranty
deed, and there is no offer to cancel
the deed made to him, or to surrender
possession Of the land, although II IL
inferrable from his answer that he Ia
in possession OF the land. The plain
titi7s demurrer to the answer was
properly sustained by the court below.
Affirmed.
The Galveston, Harrisburg & San
Antonio Railway Company VS.. Jones,
from Harris county. On motion for
rehesring. The motion for rehearing
in this case presents no questions
which were not considered on the
original hearing, when the opinion of
this court adopted the report of the
commission OF appeals, affirming the
judgment, and which opinion has
been duly reported and published in
these columns. However, the cues.
tons have been thoroughly reconsid-
cred, and the former opinion ap-
proved. Rehearing refused
Duncan, Wyatt IL Co. Va. Taylor,
from Red River county. 1t has been
heretofore held, and Is now reasserted,
that liens coming within the provis.
ions of the 18th section of the act oil
March n, 1879, regulating assessments
for the benefit OF creditors, are abso
lutely void. That section OF the
statute IL not within the prohibition o.
article 3, section 3 of the constitution
which provides that no bill shall com
promise more than one subject matter
which shall he expires sed In its cap
ton. Such an instrument then as this
being absolutely void, the property re
mains in the same condition as though
no effort had been made TO create the
lien, and 1t is liable to attachment oil
execution for q mortgagee's debts
in the same manner and to the same
extent as though he had not sought TO
subject II to the payment of the claims
of the creditors named in the mort
gage. The instrument derives no vi
tallty by being recorded. Reversed
and rendered in favor Of appellant, Sc
| ordered.
, The Gulf, Colorado & Santa Fe Rail
way vs. Neeley, from Bosque county
, Originally this was suit IN Justice
t court by appellant to recover of APP
pellee his subscription to the fund tC
, secure appellant right Of way. APP
=. pellant recovered Judgment in justice'i
: court, but on appeal the district cour
\ held the promise of appellee nudun
!, pactum and of no binding force. Oh
/ the case, held: 1t was the expressed
i intention OF the parties who signed
;. the subscription list to max
n il available in securing tn
i construction of the railroad on tn
/. designated line and the establishment
o OF a depot on the place named. Tn
}. committee, to secure these objects
4 rendered appellant the sub
scription list as it stood, but as tn
, subscribers were unknown to the com
/. pany, it required the committee I
q raise the money. Then, TO meet thl
q demand, all subscribers. save appelle
d and one other, paid the amount q
/. their subscriptions In advance. Thi
4 amounted to $235O in money and
n balance on the list Of $3.50 The none
\ and subscription list was accepted b
r. the company for $500. 1t appear
n from the evidence chat prior 10 the In
!. stitution of this suit the company hs
g complied with its part of the contrac
o by constructing the road and establish
4 ing the depot, as agreed. There wa
no change in the original agreemen
80 far as it affected appellee, and hi
+ liability was not affected by the pay
q ment by the other subscriber
i in advance. The appellee di
not withdraw his sui
scription until after it was accepte
F.. and the company had complied wit
n its contract. The substance of tn
opinion is that the appellee could nc
!. avoid the payment OF his subscriptio
a under this state OF affairs. Reverse
/, and rendered in favor OF appellant.
, The Houston Il Texas Central Raj
4 way vs. Childress, from Bosque cour
ty. To test the constitutionaliiy
!. art 424S, r. s., all of its parts mu'
y be construed in connection, and thu
construed they make railroads lab
10 for damages unless, at the prescribe
~ places, their roads are fenced
, If fenced, then only from damages Il
=. injuries arising from want OF o
=, binary care. 1t was competent II
a the legislature to declare what sha
20 be prima facie case against a raj
~ road, and what reasonable facts shs
=, ~ amount to y defense by which itcould
~ rebutted. The object OF the statu
" was to compel the roads 10 fence the
r. tracks at the prescribed points to pr
r vent damage to live stock, aud to pr
g tect passengers on their trains 1t
IS therefore, an exercise Of police pow
ia which must be upheld. The state
q entirely constitutional, and when
h has been violated, it is no answer 10
n suit for damages that they result
in from no negligence on the company
90 part. Plaintiff is not required topro
~ that the road was not fenced, but II
| a Il. - y