The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-07-06

homestead figlt was Cfrhltu, Nhu WuUe
homestead laws are everywhere 10 be con
ildered hyOmbly, yet thoy are not a. be
construed 80 W. ~ destroy existing rights,
10 An attachment Hen, like
other liens, though not an estate IN lands
u Kan Soils such vested interest therein,
that 10 cannot he effected by any such
scqucnt act Of the debtor. az Kansas, lOl.l
That a Judgment lien creates such vested
right as will be protected by section 10, art
icle |, Constitution United States, which
prohibits q 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 Courtsi 10
| Wall, go; q Otis, COZ a change of desig-
nation of homestead by moving the homes
or by changing the boundaries OF 1t, sub
| stantially different from the locality which
the pre-existing facts of ostensible use and
enjoyment have fixed as homestead, cam
not be made to the injury or destruction oil
rights of Judgment lien holders or OF pur'
chasers from the husband without the wife
Joining and existing before such attempted
change; Al Tex, 507, wherein Roberts, C,
t., says: "lf the judgment lien was acquired
| on said tract when it was no part OF
the homestead the defendant could not
change the homestead so rs to cover any
part of il necessary for the satisfaction OF
! the Judgment" Al Tex. Gl5. In that case
| it 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 prlnci-
pie The case might be rested here, but we
| refer to some of the many authorities by
which it is sustained: 10 Wal, Go; Dial
Las, 3SS; 6 Otto, COZ Bush (Ky.l, 243: 40
Miss, 100. The supreme court OF Nebraska
holds: at is clearly shown that the lien
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 a
honest cad. Does the right of homestead
attach in such case so rs to
defeat the lien of the Judgment?
we think not. The homestead law being
remedial in its character, should receive
the most liberal construction for the pur-
pose OF preserving ID home to the unior
tunate. But it must not be forgotten that
the payment of Just obligations is the foun-
dation on which rests our industrial and
commercial prosperity ; and the design of
the homestead law is not to enable those
claiming its benefits to evade the pay ment
of debts Justly due, but to prevent the
household being broken up and destroyed,
and to leave under the control of the debtor
the means by which he may, by economy,
retrieve his fortune and be enabled, in time,
to meet his obligations:n Neb, 496. This
language and sentiment we heartily en-
dorse. TO the same effect are these cases
20 Kan, 675 % Cal, 219; 10 Iowa, 45l 81
Iowa, 534 II ID. 600; in which the ques-
ton was as to the superiority of Judgment
liens or subsequent acquired homestead
rights. So also the cases in CT n. c., % and
270, and the case OF mechanics lien, 43
ILL.,, 1863: % ID, PA, and Freeman ON judy
ments, sec. 353, which relates to judgment
lien.
Yhe learned Judge reviews the following
cases and clearly shows that they do not
DObbs, So Mississippi, 1913; so Idaho, 1853; so
Idaho. 79l: 3 Nevada, -: 80 Iowa, no.
The opinion concludes: The authorities
cited, and many others which could be
lound, place it beyond doubt that as gen.
eral rule a previously acquired lien, wheth-
er general or special, voluntary or involun.
tarv. upon all real property cannot be sub |
seouentlv defeated by the voluntary act of
The debtor in attempting to make it his |
homestead. The only exception arises un. |
der our decisions in inSolvent estates in
which it has been held, that under the pc |
culiar phraseology of our statute, the |
allowance made to the surviving widow |
AND children would defeat a prior specific |
lien. In these cases, however, the creditor |
is held bound to have taken notice of the |
existing statute and to have contracted in |
reference to it. We do not decide that the |
legislature might not have the power
whether the court may have or not, TO de-
clare that homestead right might attach |
to nroperty acquired subsequently, to the |
rendition of Judgment against the
debtor, when brought with present bona
Ifde Intention TO dedicate il as a homestead,
complete with acts of preparation and sub
seGuent early occupation as such. AT |
frmed. Bonner, i.
TThis is the last opinion delivered by this |
on which he has nobly acquitted himself as |
A man and Judge. The opinion is one of !
the most important and able delivered du- !
ring the term, and q shorter svno, sis |
would mt sutiice.-Rep.1
BORGESS. ct al VS.. johnson ct al, from Nc
Lehman county, The court permitted |
certified copv Of a deed in evidence alleged |
NOT 10 be duly recorded for want of proper
certificate Of acknowledgements. The OBJ.
iertinnuble mari reads. "And acknowledged |
that he signed. sealed and delivered the in
strnmpnt Of writing on the reverse hereof !
and declared the same to be his binding act |
and deed for the purposes and considera-
lions therein stated.n Held, sufficient and
The court did not err.
The heir is liable for the indie btedness
of the deceased 10 the extent only of the
value of the property of the estate
which he receives as such and if in
enforcing the Judgment any one of the !
heirs NAV be compelled to pay more than
a due proportlon. as between them all
his will he ground for EQUITABLE contribu-
lion i'm another suit. Affirmed. Bonner, i.
A. l.. Fretelhire VS.. Kinds ct al; from
Bexar comfy. The only question raised I
and relied on in the motion for rphearinp
is n ouestion which does not seem TO have
bern raised I'm tho court below. No as
signment of error raises II I'm this court, nor
ala the briec of counsel directly present it
- ~ -. - s,,h,,ittad Hid
whatever Of merit there NAV be i'm the
ouestion. under the settled rules and decis.
inns Of Ills conrt i'm Inc absence OF AN as. 4
= -. -, J, : -, ro;a;n1, ~ ouas4ion a /