Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-18
THE HIGHER COURTS.
Decisions Rendered at the Pres
ent Austin Sitting.
COMMISSION OF APPEALS.
The Findings of the Supreme Court-Hon.
John W. Stayton, C. D.; r. r. Gaines
and John L. Henry, Associate
Judges;C c. S. Morse, Clerk.
Supreme Court.

Supreme Court.
Ell PasO Building and Loan Association
vs.. e. D. & Z. NJ. Lane; from Ell Paso. /.
In July, 1888, appellees borrowed from ap-
pellant, (being a stakeholder in same) the
sum Of $500, for which a note was executed
for 5000 payable January l, 1890, with inter
est on the last named sum payable monthly.
Certain securities were deposited by ap-
pellees to secure the debt On October g,
1887, written agreement was entered into
by both parties in which appellant re-
funded to appellees $193. IS in full satisfac-
ton of any excess of legal interest paid by
appellees to that date, and it was also fur
Their agreed that the rate of interest on the
transaction above referred to should be
$50 per annum. 1t was further declared
that it was not the intention to change the
first contract entered into. This suit was
by appellees to prevent the collection Of
any part Of said note and for surrender of
same, with all securities. Appellees
claimed they had paid $50 on stock sub
scription and S1017.12 interest The court
gave Judgment for appellees for $50 TO-
Held: An important element of usury was
the execution of the note for $4,000
for the $1,000 actually received.
This was not pretended to be
changed by the agreement of October %.
1887. As long as it continued, the original
faint of usury remained, and as long as it
remained the intervention of other parties
upon new or additional considerations
could not have the slightest effect toward
rescuing the transaction from the con-
domination of the law. 1t was not proper
to apply appellees' payment on stock to his
debt. 1t was correct to apply all payments
for interest whether made before or after
the 1st day OF October, 1887, to the dis
charge of the principal. Affirmed. Henry, J.
III. C. Morrow VS.. ST. L.. H. and II. rail
road from Grayson. Suit by appellant to
recover damages for the construction by
appellee of side track abutting his prop
erty in the city of Sherman. l. The court
did not err in charging that Fin estimating
the amount of damages, if you find in favor
Of plaintiff, you will not take into considera-
tion either the benefits or injuries to plain
tiff's said property which he may receive or
sustain in common with the community
generally where said property is situated.
which results from the construction anu
operation of defendants railroad and
which are not peculiar to him and connected
with his ownership, use and enjoyment Of
said property" The charge was correct
See 63, Tex. 46a None of the assigned
errors are well taken. Affirmed. Henry, ].
Heirs John Rogers VS.. A. Z. Watson ct
al; from Falls. Suit by appellees to re-
move cloud from title !. Four years hay
ing elapsed from the death of Rogers and
there having been no administration on his
estate, the rule laid down in Is Texas. Az,
and followed in - Texas, 1855; 80 Texas, 81,
and 81 Texas, 2SS, to the effect that sale
made in pursuance of power given mort
gage after the death of the mortgagor was
void, although the mortgage was given to.
secure the payment of the purchase n1oH1rll
of the mortgaged premises does not apply
After the time had passed within which let
tiers of administration could be granted
upon Rogers estate, the debt being for a
vendors lien, and no claim having priority
over it as TO the mortgaged premises, we
see no good reason why the power which
had been in allegiance did not Immediately
become effective and why the sale did not
pass the title to the property in controversy.
There was no error in everything the de-
murrer 10 the petition of appellees. g The
ruling that after the lapse of four years
from the death of Rogers without admins
tration upon his estate, the trustees were
empowered to sell the land for the payment
of the notes secured by the deed of trust,
disposes of the sufficiency of defendants
special answer. Same was defective in
its alleging full payment of ali the notes at
maturity. 3. Title to the land having
passed at the trustees sale to plaintiffs
(appellees) it is clear that appellants can
not claim compensation for the improve
ments alleged TO have been placed upon the
land by Rogers. Affirmed. Gaines, j.
Galveston, Harrisburg ard San Antonio
Railway VS.. the State; from Val Verde
The court, through Judge Gaines. asks
both parties to file additional briefs on
the following questions: /. Did not appel
liant company fail to comply with the terms
of its charter with reference to the COM
pletion of its road to San Antonio within
a stated time! 3 If the company did SO
fail, did the act Of August is, 1876, entitle
the company to receive lands for work
done after the 2lst of August, 1S76-the
day on which the legislature adjourned
after the constitution went into effect.
Briefs must be filed by Tuesday, the 23d
inst. Gaines, J.
W. S. Jones ct al VS.. Dan Robbins; from
Bell. l. A former submission may be set
aside by agreement and cause continued for
the term. Submission set aside and con-
tinued until 1892. Per curtain.
Texas and Pacific Railway vs. J. p Da-
wilson; from Eastland. Motion to set
aside former submission. 1. BY agreement
to that effect former submission may be