The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-06-26
THE COURTS.
PROCEEDINGS IN THE TEMPLES OF
JUSTICE HERE IN
AUSTIN.
Important Decisions in the High Courts
and Minor Legal Matters in the Dis
trict and other Courts.
SUPREME COURT.

SUPREME COURT.
The supreme court decided the fol-
lowing cases:
AFFIRMED.
H. w. Merrell vs.. w. E. Roberts ct
al, from Clay county.
REVERSED AND REMANDED.
HIT. G. Ry. Co. VS.. A. J. Barragar,
from Travis county.
w. 3. WELLS, JR., EFT AL. VS.. NELLIE
DAVIS, from Grayson county. Opin-
ion by Henry, ].
Action by appellants against appel
lee for a house and two lots in Sher-
man. Appellee in possession claimed
under parol gift, and appellant under
deed from one Walker, who was made
party defendant. Verdict was rendered
in favor of defendant, Nellie Davis. Ii
the other circumstances of the case
are such as to entitle the vendee or
donee to a decree for specific per-
Torrance, the question of improve
ment must be treated as immaterial.
But if the right to decree depends
upon the fact of improvements, and
the Improvements relied on are insig-
nifcant, then the party who
made them must be treated as
not entitled to a decree.
When land is given to person and
the donee has been placed in posses
sion and has in consequence thereof
placed upon the lands improvements
of character that court of equity
will estimate as being within them
selves of sufficient Importance and
value to entitle the party to a decree
for specific performance then the
use of the premises from the date OF
such possession must be treated as
going with the equitable right to the
property itself. Under this rule and
the facts of this case the plaintiff
has no right to complain of the charge
of the court as to the improvements
and the judgment is affirmed.
l. & &. N. r. r. Co. VS.. G. S. Cock,
from Hays county. Opinion by
Stayton, c. j.
The facts bearing on the question
of appellants liability and the ques-
tions presented are the same as those
passed upon in the case of appellant
VS.. Prince at this term of court, and
for the reasons given in that case the
Judgment in this case is affirmed.
w. L. KENNARD VS.. C. MABRY EFT AL.
from Johnson county. Opinion by
Stayto G. J.
The Texas Loan agency had mort
gage properly recorded on some
land belonging to Westbrook,
to secure a loan of $4,000.
Subsequently Westbrook executed
to appellant deed on the same prop
erty, which deed was absolute on its
face, but was intended only as a mort
gage to secure appellant on account
of his liability on note for which he
had executed as surety for Westbrook
This instrument was filed for record
and was recorded in the record of
deeds in the county where the land
was situated. After this record had
been made, judgment was rendered
against Westbrook as principal and
Mabry as surety, and the abstract of
the judgment was filed, recorded and
indexed. Kennard acquired title to
the land by purchase under foreclosure
of his lien and the lien OF the Loan
agency, and this suit was brought by
him to enjoin execu An sale under
the execution on Westbrook and
Mabry Judgment, which Mabry had
acquired. The court below held that
the record of the deed from West
brook to Kennard in the book used
for recording absolute conveyances
did not give notice of the real
contract between the parties,
and that for this reason
the record and index of the abstract of
the judgment gave the superior lien.
There is apparently conflict Of
opinion on this question, but we hold
that, in so far as the question Of
notice is concerned, the record of a
paper purporting to be an absolute
deed, in d book kept for that purpose,
ought to be held to give notice of the
adverse right, whatever it may be-.
For one seeking to acquire title to
land would naturally not only inquire
whether the land is mortgaged, but
also whether the party proposing tc
sell or mortgage was the owner; and
every person is affected with notice of
every right less than absolute owner
ship, which the person holding
under a deed recorded may have,
and we think that this view
of the question is the better
The legislature has undoubtedly, how.
ever, power to deny any effect to reg
istration of an instrument not re-
corded in the book in which it is re-
quired to be recorded. In view of the
other statutes on the subject of regis
tration and more particularly of Art.
1899. it must be deemed that Art.
1904, requiring that trust deeds,
mortgages. etc., shall be recorded in
books separate from those in which
deeds are recorded is only directory.
From this we conclude that Kennard's
instrument of conveyance was properly
recorded. There was, however, no
sufficient ground for Injunction. The