The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-10-28
THE APPELLATE COURTS



cana. He ownei a ten-acGe lot 1000 yards
away, a portion OF which was in the COZ
porate limits and u portion without. Upon
the tract in question there was tenement
house, garden, etc The testimony of the
defendant and his wife was that the lot In
controversy was used exclusively for Tn,
convenience and benefit of the family il
connection with the home in the city. Tn,
lot was occupied by servant who was moi
charged rent. He furnished vegetabl es e ggs
etc, TO the family. Held, there is mo- doubt
hut that the defendants residence was ur-
ban, consequently, to determine its extent i,
must be known what portion was, and what
was not. within the corporate limits. The
urban homestead exemption is confined to
lot or lots within the limits of the town
or city, and mus be used rs home. The
burden Of proof is upon the defendant to
establish his homestead right. Here the
evidence does not establish prima facie
case that TIE particular part of the con
tested property was in ad unCt use to his
home, as garden, poultry yard, etc. There
can be no blending of homestead rights so
that the exemption can be partly in town
and partly in the country. There is moth
Ing IN the case to bring II within any exccp-
ton, Two requisites must concur to con
!.
intcnd the property as part of his home
stead. ., lie must In some way use it as
such. 10 was question for the Jury under
the above rules to determine the nome cad
right, Reversed aud remanded. Walker,
pc.
Halcomb VS.. Kelley from Coryel coun.
W. Where an injunction is intended mere
ly aS writ of revision Of any judgment of
u ju3tlCe Of the peace which could either be
nrp ~ tn1 hx,. .,,tt .,f
itshouId not be granted. An injunction to
restrain the execution Of II Judgment of
justice OF the peace will not be granted for
error in the decision where by negligence
of the party he has no. availed himself Of
the appeal or certiorar. Equity does not
relieve against neglect or failure when an
Opportunity to pursue and obtain legal re-
dress was given Reversed and dismissed.
Walker =. G.
Additional opinion by Watts, Judge:
Judge Watts fully ooucurs on the above
questions, but says further, the case shoul
be dismissed for want Of jurisdiction in the
diatlGt court, adding that The amount
In controversy being SIC, the counter claim,
The case might have been appealed to the
d,s.r.c5 court or moved taere 0y certiorari.
Had Il writ of celtorari been granted the
district c0ur, would haze had Jurisdiction
and had the right to issue the Injunction
tutcd by that Injunction. | Until he had
acquired jurisdiction either By appeal or
writ Of error he could not have issued legal
ly Che writ OF injunction. Respectfully sub.
mitted, with reqaos, that the supreme court
settle the question. Watts, c.
Blum ct al. vs., Bycrs; from Boaque
county. Appellant brought suit on pur.
chase money note and sought foreclosure
Of lien given therein upon the laud and
IA mil a.
Defendant plead fraud upon the part of
plaintiffs agent In including in the mote and
deed the lieu uron the mill, machinery,
eJc, when II was expressly agreed that such
hen should not be given Defendant
sought revision and cancellation OF the con.
tract, made tender of land, and plead Tor
damages In rec0nventior. Judgment re-.
sending contract, and for damages in re-.
convention Held q person must offer TO
reeohd promptly on discovery otany fraud
nAGtiIcd on him, or within such time as
the fraud might have been found out,
before he Is entitled to resCiiM n contract
on account of such fraud. He
must use reasonable and ordinary diligence
TO discover the fraud, aud he is bound to
promptneSs in informing the opposite party
OF The fraud and what the deilgudcl party
intends to on account of it, He must re-
turH OF O;ler 20 return within n reasonable
w
he keep 10 rs his own or offer to sell il he
cannot rescnt. The deed containing a re.
clth that the note was a consideration SO.
Gurol by lien, etc, charged 10 defendant ms
smatler OF law with notice of the alleged |
fraud Evidence consisting of written in |
Stfumentin the chain of title charges the |
party with notice, Defendants alleged ~.
norance OF contents OF the note until served |
with copy vi the petition, does not vary
A. Of ia 10,
conclusive against a revision of contract,
Reversed aud remanded, Walker, pc.
smith, administration, vs.. Sheim ct nj.
rom Wise county. TO constitute Il vari-
anoe between the pleading and evidence
itlal the misdeScripticn In the written in.
atrument must be such as to mSlcad or
surprise the adverse party: l5i Texas, 5G3 J
AS lar as the record shows, appellant was
neither miSIcd or surprised TO his injury
ny the supposed variance In the name of
the patentec. Where the evidence fails to
show that a clause giving authority 20 sell,
etc, to another and inserted in 4 bounty
warrant was not authorized, the prest,mn
tion VIII he INDUCED in favor of the secrc
tary OF war that he has authority TO insert
~ " is upon appellee to show That such
cause was inserted through fraud or mis-.
take, and without the knowledge and con.
sent OF the patentce, The authorized agent
" ''""'N AVth IIllut laClt ngnt To
make transfer which carried with il both
hls aud his principals interest as Texas.
OK J. Reversed ana ICWapled, Watts, q.
Harrson vs.. Grant; from Robertson
couu ". When Garrison settled on The
iohd Ia controversy his wife owned In her
own hight another tract .. land UNION
which they had lived for many wears.
Ihoy rented this aud settled On another
traot' The law giving the head of a fam. |
ny The right of presumption OF 100 acres as n
homestead out of tho unappropriatcd do.
nam, was then IN force. But held, the
exemption is the same whether the home. |
ateai be the community property of both
tho husband and wife, or OF eitapr, foy in |
any such case II is exempt rs the home.
stead OF the faulty. Garrison, therefore.
could not acquire two homesteads, Al
hrmcd. Watts, Q.
Merrill vs., Shoemaker; from Wise county.
inc land IN controversy being the separate
property Of the wife, u conveyance must he
mauc IN strict compliance with the statutes.
US OF no avail TO prove by parole that
both the husband aud wife We're anxious IN
have the land solid aud did receive the
money after tho sale, The law required mn
knowledgment Of the wife, IL taken out
OF the state and within the United States
"a be taken before n Judge of court of
rccord having u seal. In this case Il was
taken before justice OF an inferior court,
Sesides, the deed neither shows an ac.