The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-12-17

| kle q Davis VS.. PabSt Brewing COmpa-
ny, from Potter.
Judgment of Court Of Civil Appeals
Reversed and Judgment of Trial Court
Affirmed-Lockridge. VS.. McCommon,
from Gonzales.
| Causes Submitted-Eustis ct al. VS.. City
of Henrietta, from Clay; Ozee ct al. vs..
City of Henrietta, from Clay; Missouri,
Kansas and Texas Railway Company VS..
| Colburn, from Clay.
| Motion for Rehearing Submitted-Fow-
Ter VS.. Bell ct al, from Wichita.
OPINIONS.
Following are synopses of the opinions
delivered by the supreme court Monday:
Thomas Lockridge VS.. L. T. Mccain
mon; trespass to try title, from Gonzales
county, Fourth district. Judgment of
| court of civil appeals reversed and that
| of trial court affirmed.
Andrew Lockridge and his wife, Anna
| Lockridge, on February 3, 1866 executed
and delivered deed conveying 800 acres
of land to their sons, Robert l.. and John
L. Lockridge. Under the terms of this
| deed the grantors were to retain life
estate Ill Sdlu lduu, anu Ut the uedtu VI
| the survivor of them, the grantees were
to take a fee simple title, with the limi-
tation that if Robert II. Lockridge should
die without having disposed of his share
of the land by deed or will and without
| issue or their descendants living at the
| time of his death, then the estate should
pass and vest in the issue and descend
ents of John Il. Lockridge. In default
of such issue or descendants of John L.
I n1rr,I 20 cold ln,, 10
in all the children and the issue of such
| as were dead, of the grantors, share and
share alike. Robert b. Lockridge died
without issue or their descendants and
never disposed of the land in controversy
except by making a deed of trust on
same. Plaintiff Thomas Lockridge was
the only issue of John Z. Lockridge. De
| PENDANTS claim under sale made by or
der of the probate court, at which one
given by Robert B. Lockridge, became
| the purchaser of the land in controversy.
There was judgment for plaintiff in
| the trial court, which judgment was re-
versed by the court of civil appeals and
| by them rendered for defendants.
First-The instrument under considera
| ton contains all the elements of con-
ditional limitation and is valid unless it
be rendered voice by the insertion of the
1
| the land by the donee.
The condition does not restrict or in
any way limit the power of the grantee
| to control or dispose of the land. In fact,
| by the insertion of this condition, his
power of disposition is enlarged and by
| the exercise of that power he might have
| cut off the estate, which was to be sub
| stituted upon failure to dispose of the
land and the failure of issue. IL, how
/ avar II ha GRO Mod TINT tho former nnn-
dtion was repugnant to the estate vested
in Robert B. Lockridge, then the repug-
nant condition would be invalid and the
| instrument would be construed as If it
had never been inserted. That condition
being eliminated the deed would vest the
title in Robert B. Lockridge. limited upon
the contingency of failure of issue and
their descendants. Upon the happening
of this limitation, the title would vest in
plaintiff
| Second-Was the making of the deed
of trust by Robert B. Lockridge to Walk
er O disposition by deed" according to
| the intent and meaning of the language
used? We are of the opinion that it was
not. The deed of trust was not dispo-
sition Of the title to the land. 1t was
merely a security for the debt under our
laws and conferred no title upon the trus-
tee or beneficiary. 1t follows that the
| SAFE OIL tUe huu ny lut va
Robert B. Lockridge, in whose estate no
title was left, conferred no right upon the
purchaser, and therefore created no bar
to plaintiffs right to recover.
| The judgment of the district court is
affirmed.
| Opinion by Brown, j.
Friqua. Hinkle & Davis VS.. Pabst
Brewing Company; suit on a bond given
| of tho nurpho 70
price of certain beer, from Potter county,
| Third district. Reversed and remanded.
| In August, 1892 the Pabst Brewing
company, a foreign corporation, entered
| info a written contract with Q. Z. Kings
| bury of Amarillo, Tex, whereby the
| former agreed to sell to the latter beer.
| Among other provisions. it was stipulat-
ed in the contract that the brewing COM
pany shou Id not sell or consign any beer
| within the city of Amarillo or vicinity
during the HE Of the contract and that
| Kingsbury during said period was neither
| to sell nor be interested in the
sale of any beer not manu-
| featured by the Pabst Brewing company.
| Defendants below, al the date of the
execution of said contra ct signed men,
orandum endorsed therein whereby they
| jointly and severally guaranteed to said
brewing company the ran nIul perform
ance of said contract by said kingsbury,
| their liability not to exceed $1,000.
| This is suit brought upon said memo
randum of guaranty against said guar
antors by the brewing company. There
was judgment for plaintiff in the trial
court, which was affirmed by the court
of civil appeals.
| First-The question of the legality of
the contract, the performance of which
| was guaranteed by defendant below was
first raised upon motion for a rehearing
in the court of civil appeals. We are of
| the opinion, however that we must pass
upon this question. The general demur-
rer urged in the trial court necessarily
raised the question of the validity of the
| contract sued on it being the settled prac-
| tice to disregard the reasons given in an
assignment and to treat the same as if
the reasons had been omitted. Also. if
the contract is violative of the law against
trusts, it is thereby rendered void, and
| it was the duty of the court of civil an
| peals. Notwithstanding the absence of an
| assignment, to set aside the Judgment
! rendered thereon and its rendition was
| IAN error of law apparent on the
| face of the record" Or. S., Art. 1O141
Second-The contract contemplated and
provided for combination of capital and
acts, and the tendency and purpose of