The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-02-27

az Decisions 90 ibe supreme Court
Galveston Term, 1850,
Galveston News,

ny houlnt d. lhe pllhplPhl qN'hNph w
this case Ia US TO tho sullicleney Of tho follow
Ing certificate to tho pTiyy examination and
acknowledgment
TnE STATE oF Texas, County Of Calves
ton,--Boiore me, w, II, johnson, notary
public for said county and State NJ tho city
Of Galveston, on this lllh day Of April, 1872,
personaly came mud appeared Francis Sol
YER and Caroline l.. HOly0r, his wife, 10 mo
personaly known, and seVernly pekn0wl-
edged that they Ind executed and delivered
tho foregoing conveyance NJ their voluntary
net and deed for the purpose and cOnsdera'
ions therein eSpressedi aud tho said Caroline
l., Solver having been examined by me,
priyIly and apart from her said husband, mud
having tho same fully explained 10 hor she,
tho said Caroline w. Solyer, declared that
she had willingly signed, sea cd and delivered
tho same, and that she wished not W relrnot II,
Given under my hand and Impress Of my
Official seal this lth day Of April, 1872,
w. H. jon ksOk,
Notary Public Galveston County.
On tho authority of BelchOr Va, Weaver
ti6 Tex. 29i) we hold that this certificate
shows substantially that Mrs. Sulyer In her
privy examination acknowledged the decd M
her act and that tho requisites Of the statute
then In force had been complied with. L,
d., art. 1904 II, notwithstanding h0r priyy
examination and acknowledgment, Mrs,
Solver did not execute tho deed willingly,
lh0ro waa no evidence whatever tending to
charge GirNrdn aud Romanot with notice Of
tho fact, or Of my defect In tho delivery Of
the deed. Tho evidence shows that the OBJ
Iect of the conveyance of Solyer and wifo 10
their son WAS 10 enable SolyOr To borrow
money on the security Of tho lot, aud 1t fails
10 show that Girardin or Romanet had any
notice that Mrs. Solycr objected or had any
right 10 object to tho deed Of trust There
was no evidence in tho charge Of tho court
M TO tho validity Of the deed, nor In the
failure 10 submit to the jury issues M to
which th0rO was no evidence affecting the
plaintiff The court, by reason Of various
public nets, judically know that tho city of
Galveston was In the county of tho same
name, in the State Of Texas. Even were IL
otherwise, II was too late TO object that the
suit did not appear to be brought in the
county where the lot WAS, and tho charge
asked on that subject was rightly refused,
Affirmed.
Charles Kcsslor W.. Daniel Draub. Ap.
peal from Colorado. Opinion by Gould, j.,
Aftor the death Of his wife, in 1867, Daniel
Draub, with two children of that marriage,
continued to occupy the same homestead, II
being community property. His son became
of ago and lived elsewhere, and in 1873 his
daughter married and ceased to live with
him, In 1874 Kessler recovered judgment
against him, under which he levied ON the
late homestead and having boughtTh in,
brought his snit to recover possession. The
question presented is wcther Daniel Draub,
continuing to occupy the same place as his
residence, but having with him no family
other than ut timos II single servant, that
place was In 1874 protected from forced sale
as his homestead, Taylor Va. Boulwaro ~
Texas ~ Is authority for tho continuance of
the exemption in favor Of the surviving hus-
band, "ihough without servants or any
one with hire" so long as the place contin-
ued to be his residence, Sec also Wood VS..
Wheeler & Texas, l3) That the widow,
under like circumstances, retained her home
stead rights has never been questioned, and,
indeed could not be under the provisions in nor
favor IN the various probate law of the State
The act of August 10, 20, which was in force
in 1874, provided that exempt property
should form mo part Of the estate of
deceased person when u constituent of the
family survives apparently extending TO
the widow no greater protection than TO
the widower-both being constituents of
tho family. 1t is not proposed to discuss
the question, or attempt to indicate the
reason and consistency of the law in
continuing to protect the surviving
husband in the late homestead Of the
family, whilst it denies to him, or to any
single person not the head of = family, like
protection in newly-acquired home, 1t is
enough that we find in the constitutional and
statutory provisions on the subject, and in
the decisions Of this and other courts, author
ity for our conclusions that, at the sale,
Daniel Draub was still protected in residing
on the late family homestead Const. 1863
70, art. II, sec. Is; z. D., arts. 5ls7, 1884;
Taylor vs. Boulware, II Tex, II; Wood Va.
Wheeler, Tex, -; Silloway vs. Brown, II
Allen, 80; Borney VS.. Leeds, 81 N. H., 253;
Smyth on Homestead, secs. 1912; see also
const. Of 1876, art. Il, sec. 50; Il. c., art 2000
Affirmed
Il. 0. w. McAlanus VS.. f. NJ. Wallis.
Appeal from Liberty. Opinion by Bonner,
j. Although not SO stated by the Judge
that counsel had failed TO agree in making
out the statement of facts, it has however,
been held by repeated decisions of this court
under the former statute (P. d., art, l490,)
substantially the same rs that now in force,
that if the statement be made by the Judge
alone, it will be presumed that this was done
because the attorneys had failed to agree.
(Harlans --lIcirs VS.. Haynie, 8 Tex, 457
Kelso vs.. Townsend, 10. Tex, l40,) Appel
liant urges that tho action flor damages for
malicious prosecutioh) was barred by
the statute Of limitation of
one year. The action would have
been barred on May Is, 1876. The file mark
on the petition bears date May %,
1876. The testimony shows that on May Is,
1876, plaintiff Wallis deposited his petition
with Cameron, the late District Clerk, and
who, on April 30, 1876, had been appointed
County Clerk, and had that day qualified as
such. The testimony tends to prove that
Cameron, though no had been appointed to
the office of County Clerk and had qualified
IS such, seemed still to have htd charge of
the office of District Clerk. Thathe refused
upon consideration to flo the pc
tition, and that subsequently, on
the evening of the same day
it was handed by plaintiff to Chambers who
had been elected to the office, but who did
not qualify until May 90 thereafter, and by
whom the petition was that day indorsed
asd. The testimony further tended to
prove that from May 10 to May Is it WAS