The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-06-27
COURT DECISIONS.
.,,opsls Of opInionsof the Supreme coul


Terrell ct al. vs.. Neblett; from Navarro
.,unty. The controlling question in this
case Is: which is superior, a judgment lien
An land. or subsequently acquired home
stead right. In 81 Tex, SIS it was decided
,h.t an attachment lien on land will not be
ssfested by subsequently acquired home.
.,esd right. This doctrine has since been
.firmed by the court, is sustained by au-
,bority and we think is grounded on JUS
lice and sound principle. "The attachment
lien existed nearly three months before the
bomestead right was created. and while
homestead laws are everywhere to be con-
sidered favorably, yet they are not to be
construed so as to destroy existing rights.
An attachment lien, like
other liens, though not an estate in lands
f9Kan. Soils such vested interest therein,
Mat il cannot be effected by any such
sanuent act of the debtor. az Kansas, 10l. J
That Judgment lien creates such vested
right as will be protected by section 10, art
;cle /, Constitution United States, which
nrohibits state from passing any law
which impaiis the obligation Of contracts
has been expressly decided by the United
States supreme court, whose decisions on
questions of this character are of peculiarly
binding authority upon state courts; 10
Wall, Go; Otis, COZ. A change of desig-
nation OF homestead by moving the homes
or Inv changing the boundaries of it, sub
stantialy different from the locality which
the pre-existing facts of ostensible use and
enioyment have fixed as homestead, can
not be made to the injury or destruction OF
rights of judgment lien holders or OF pur-
chasers from the husband without the wife
ioining and existing before such attempted
change; A Tex, 597, wherein Roberts, C.
/, SAYS: "If the judgment lien was acquired
on said tract when it was no part on
the homestead the defendant could not
change the homestead so as to cover any
mart of it necessary for the satisfaction OF
the Judgment" A Tex. 6l5. In that case
il was sought to change the boundaries Of
an already existing homestead in this case
it is sought.to acquire new homestead, both
to the prejudice of pre-existing Judgment
liens. There is no difference in the princi
ple. The case might be rested here, but We
refer to some of the many authorities by
which it is sustained: 10 Wall, 610; Dial
las. SSS; 6 Otto, 607; Bush (ky.), 243; 4s
Miss, 700. The supreme court ofNebrasks
holds: at is clearly shown that the lier
of the Judgment had attached to the lands
in question, at the time the entry was made
for the purpose of claiming the same as
homestead. Does the right of Homestead
attach in such q case so as t
defeat the lien of the judgment
We think not. The homestead law beinl
remedial in its character, should receiv,
the most liberal construction for the pur
pose of preserving home to the untor
tunate. But it must not be forgotten tina
the payment ofjust obligations is the foun
dation on which rests our industrial ant
commercial prosperity and the design O
the homestead law is not to enable thos
claiming its benefits to evsde the paymen
of debts justly due, but to prevent tn
.bousehold being broken up and destroyed
and to leave under the control Of the debto
the means by which he may, by economy
retrieve his fortune and be enabled, in time
to meet his obligations" Neb., 496. Thi
language and sentiment we heartily en-
dorse To the same effect are these cases
20 Kan, CTS % Cal, 279; 16 Iowa, 45l 2
Iowa, 534; II ID, 600; in which the ques
ton was as to the superiority of iudgmen
liens or subsequent acquired homestea
rights So also the cases in "a N. e., 70 an
20, and the case OF o mechanics lien,
ILL.,, 100; % ID, ga, and Freeman on Judf
ments, sec. 1853, which relates to judgmer
lien. -,
The learned Judge reviews the iollowin
cases and clearly shows that they do nj
conflict with this doctrine. Trotter VI
Dobbs, So Mississippi, l9S; so Idaho, 1888;
Idaho. T9l; 8 Nevada, -; So Iowa, 10.
The opinion concludes: The authoritis
cited, and many others which could b
found, place it beyond doubt that as q ger
eral rule previously acquired lien, whetl
er general or special, voluntary or inyoluI
tary, upon ~ real property cannot be sui
seauently debated by the voluntary act
the debtor in attempting TO make 1t b
homestead. The only exception arises III
der our decisions in insolvent estates
which it has been held, that under the p
culiar phraseology OF our statute, u
allowance made to the surviving wido
and children would defeat prior specif
lien. In these cases, however, the creditt
is held bound to have taken notice of Il
existing statute and to have contracted
reference to it. We do not decide that Il
legislature might not have the pow,
whether the court may have or not, TO d
clare that homestead right might attat
to property acquired subsequently to Il
rendition of Judgment against Il
debtor, when brought with present boz
fide intention to dedicate it as a homestea
complete with acts Of preparation and su
sequent early occupation as such. a
firmed Bonner,j.
[This is the last opinion delivered by tn
learned Judge in retiring from the benc
on which he has nobly acquitted himself
n man and Judge. The opinion is one.
the most important and able delivered d
ring the .erm, and a shorter synoss
worli not suffice. -Rep.l
Synopsis OF Opinions of the Court of a
peals.
Doggess ct al VS.. johnson ct al, from M
Lehman county, The court permitted
certified copy of deed in evidence alleg
moi to be duly recorded for want of prop
certificate of acknowledgement. The, o
iectionable part reads: And acknowledg
that he signed, sealed and delivered the
strument Of writing on the reverse here'
and declared the same tot his binding q
and deed for the purposes and consider
tions therein stated" Held, sufficient OIL
the court did not err.
The heir is liable for the indie btedne
of the deceased to the extent only Of q
value of the property OF the ests
which he receives rs such, and II
enforcing the Judgment any one OF =
heirs may be compelled to pay more TIL
ma hatvaau than ,