Beale v. Ryan

Citations

• 40 Tex. 399

Syllabus

<p>1. An instrument purporting to convey land which, upon its face, discloses that it was intended as a security that title should be made to another , tract, and as indemnity against a lien on such other tract, is a mortgage, though it may recite that upon failure to discharge the lien the instrument shall “remain in full force and virtue as a deed.”</p> <p>2. On a trial involving title to land, when the question is presented whether an instrument in evidence is a deed or mortgage, it is the duty of the . court to construe the instrument in charging the jury, and instruct them as to its legal effect'.</p> <p>3. A plea in abatement will not be considered on appeal or error unless the attention of the court below was called to it and a ruling thereon obtained.</p> <p>4. When a party against whom no liability is alleged, nor relief sought, is ■ made a party defendant for purposes of jurisdiction, and a recovery is had against his co-defendants, the costs incurred by reason of such misjoinder should be adjudged against the plaintiff.</p> <p>5. See opinion for facts upon which it was held error not to charge the jury on the question of homestead.</p> <p>5. It is the duty of a party prosecuting an appeal, and of the district clerk - .who prepares the transcript, to see that the same is methodically arranged and properly indexed.</p>