Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-19
THE HIGHER COURTS.
Synopses of Decisions Rendered at the Present
Austin Sitting.

synopses of Decisions Rendered at the Present
Austin Sitting.
Correspondence of the Gazette.
AUSTIN, TEX, June Nv. B. Wells, Jr., ct
al. VS.. Nellie Davis, from Grayson county;
opinion by Henry, j. Action by appellants
against appellee for house and two lots il
Sherman. Appellee in pos session claimed under
parol gift, and appellant under deed from one
Walker, who was made party defendant. Yer
dict 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 performance, the question Of
Improvement must be treated as immaterial.
But il the right to a decree depends upon the
fact OF improvements, and the Improvements re
lied on are Insignificant, then the party who made
them must be treated as not entitled to de-
cree. When land is given TO person and the
donee has been placed in posses 81 on and has in
consequence thereof placed upon the land i'm
provements OF a character that a court of equity
icient Importance and value to entitle the party
to decree for specific performance, then the
use of the premises from the date of such pos
session must be treated as going with the equita-
Bile right to the property itself. Under this rule
and the facts of this case the plaintiff has no
right to complain Of the chsrge of the court as
to the improvements, and the Judgment is af-
International and Great Northern Railroad
BY stsyton, c. J. The facts bear
ing on the question of appellants la
bility and the question presented 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.
NJ. L. Kennard rs. ]. c. Mabrv ct al, from
Johnson county; opinion bv Stauon. C. J.. The
Texas Loan agency had mortgage properly
recorded on some land belonging to westbrook,
to secure loan of $4,000. Subsequently West
brook executed TO appellant deed on the same
property, which deed IVES absolute on its face
but was intended only as a mortgage to secure
ant nj Of r,fafs.
for which he had executed as surety for Vest
brook. 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 q judgment was rendered
against Westbrook as principal and Mabry as
surety. The abstract OF the Judgment was fled
accorded and indexed. Kennard acquired title
TO the land by purchase under foreclosure of his
lien and the lien Of the loan agency. This suit
was brought by him to enJoin execution sale
under the execution the Westbrook- Mabry
Judgment, which Mabry had acquired. The
court below held that the record OF the deed
stfz1f4f estbrook 70 kennard IN the book used
sf6rs recording absolute conveyances did not
give notice of the real contract between
the record and index OF the abstract of the iudg-
ment gave the superior lien There is appar-
emily conflict OF opinion on this question. but
we hold that, IN so far as the question of notice
is concerned. the record OF paper purporting
to be an absolute deed, in 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 natprai5v
not only inquire whether the land is mortgaggE
but also whether the party proposing to sell or
mortgage was the owner And every person is
affected with notice Of every right less than ab-.
solute ownership which the person holding
under deed recorded may have; and we think
that this view Of the question is the better. The
legislature has undoubtedly power, however, to
deny any effect to registration Of an instrument
not recorded in the book IN which it is required
- Be recorded In view Of the other statutes OF
the subject of regi straton and more particularly
OF Article 4zs9 1t must be deemed that Article
shall be recorded in books separate from those
in which deeds are recorded. il only direc tory.
From this we conclude that Kennard's instru-
inent Of conveyance vaB properly recorded.
There was however. no sufficient ground for
1Sz3euctiOn. The judgment OF the court below is
reversed and Is here rendered dissolviDg the
injunction, etc.