The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-29
THE COURTS.
Hemesteads and Community Property
The Intent Of the Statutes,
Sherif's Deeds and Their Validity
Strong and Weak Points.
Other Legal Nuts Well Cracked.
SUPREME COURT.

elfkENh WYNN
Mcmillan vs.. Frost ct AL, from Navarro
county. Opinion BY Walker, p. j., adopt
ed. Information having been communi-
Gated to this court, this cause has been set
tied between the parties, according to the
established practice. the cause is dismissed
nj the cost Of appellant without reference to
the merits OF the cause. Dismissed.
Robertson vs.. McCreary, from Robertson
county. Opinion by Walker, p. j., adopt.
ed, One OF the counsel OF record IN TINS
cause having informed the court that the
matters In dispute have been settled, ana
due and proper notice being given the par,
ties, the cause is dismissed at the COST OF
appellant. Dismissed.
Ssyles ct al. vs.. Blum, from Hill county.
Opinion by West, ]. The district court
was in error in holding that the evidence
showed an abandonment on the part OF APP
pellants OF their homestead in Hill county.
Take all together the evidence failed to
show the acquisition OF q new homestead;
or to disclose with the required certainty
the facts OF the abandonment OF the origi-
nal homestead. Cline vs.. Upton, Galveston
term, 1888; Cline vs. Upton (56 Tex. go;
20 Tex. 9S; Al Tex 1852; % Tex. 533; 20 Tex.
29) Judgment reversed and rendered for
ADOellAntH, htvtTetu hlh ItuuCiSu.
Thompson ct al. VS.. Jones ct ALL from
Fannin county. Opinion of Watts, j.,
adopted. The case of Campbell VS.. Elliott
(52 Texas; 15l) is almost identical with the
one under consideration and fully settles
the first question raised. II was there held
that a sale under judgment foreclosing
mortg ,ge upon the homestead, the vile not
being a party to the suit, is void and pur-
chaser under such decree could acquire no
title to the property, and that such fore.
closure and sale, did not preclude recov-
cry of the land from the purchaser, by the
heirs after the death OF their father and
mother. As to the remaining half OF the
land, as 1t was conveyed to Thomas ana
Nancy Jane Harrison encountered by a
mortgage, no homestead right could attach
as against the mortgage, and II that inter-
est was community property, then the wife
was not necessary party TO the toreclosu 9
suit, and the Judgment OF foreclosure and
sale BY virtue thereof would be valid and
effectual as to that interest. Reversed and
remanded.
WeIlsvs. Slater; from Washington county.
Opinion by Willie, Q. ]. The lot in question
was the community property of Mrs. Wells
and her husband during his lite time. lie
LETT will in The first clause Of
which he bequeathed to her all
of his right in their community
estate. The third clause can hardly be
construed to limit or change this DISPOSE
ton. 1t merely states that his property is
not more than sufficient to enable her to
take care of her younger children, with
whose education and maintenance she is
charged, and that Is the children's at her
death. Held: We must look to all parts
and provisions OF O will to ascertain the in
tention Of the testator. III Texas, lS). The
meaning OF the testatOr was to make Mrs.
1 Wells his sole legatee with statement of
lie views of the testat0r as to what would
bothe result III her having, as the mother
Of the children, the entire control. manage
meat and ownership of the property. But
Il the true construction Ia that Mrs. Wells
tcok the property, charged with trust for
Tie maintenance Of the children, she took
The legal title to the property beaueathed,
lnd with 1t the power OF sale. Inc pur.
ehnser was not bound to see that the money
Vas applied to the education and main.
iensnce Of the children, and there is no
I fraud charged or proved to have been per-
petrsted BY Mrs. Wells as against her chill
dren in the sale Of this property. (5l Texas,
N5) Judgment reversed and rendered 80
e 10 decree recovery In favor of appel
liant for the full amount Of principle and
interest due upon the note. and FORE
closure of the lien upon the latter. Re-
vtrsed and rendered.
Baker VS.. Denton aud Wife, from Faupin
: county Opinion by West, J. The only
snineniento Of error specially noticed Is TO
tnis efiect That the evidence was not
sufficient to establish the property Of the
plaintiff. Held; The assignment Is we'll
husband, and the fact that the note upon
which the original judgment was rendered
Is payable to Mrs. Denton, did not con.
stitute In itself alone, evidence that 1t was
her seperate property, $50 Tex, l79). Plain
tiff must recover, If at all, In the right in
which he, or she sues, az Tex, 4l) Re-
versed and remanded.
Hughes ct al, vs.. Duncan ct al, from
Dallas county. Opinion by Delany, j.,
adopted. Suit by injunction brought by
Hughes against the sheriff and Duncan to
restrain said sheriff from making deed to
cetain land to Duncan, which he had bid
Off at q foreclosure sale. The facts are
these; Hughes obtained Judgment and a
decree Of foreclosure against Guedry and
wife upon the land in controversy, but
agreed with them If no appeal was taken,
and they would pay one half OF the judg-
issue without notice. Guedry raid one
half OF the judgment. The clerk, without
the knowledge Of either party, issued the
order Of sale, and 1t was sold
and bought for $25. Guedry
and vile afterwards came in
and made themselves parties plaintiff.
Judgment against them all. Held. error.
The learned judge, after quoting from
Freeman ON Execution Sales, 800, and re.
ferring to and discussing cases cited as
Texas, 672, q Texas, l45, As Texas, 395, IS
Texas, 67D concludes that the gross made
Quacy of price (the land being worth 81 200
together with the serious results happen.
ing to Guaedry and wife, who are also in.
terested. that the interest of the admins
tration Of Justice demand Judgment fol-
appellants. Reversed and rendered.
English vs.. Hutchins, from Hays county
Opinion by Walker, p. j., adopted. Plain
til's action was plainly suit to try title
to the land, and where that Is the case, II
10 In Effect an action OF "trespass to try
title" and IL Is not essential to constitute
IL such that the technical allegations Of
actual tYespass. and custer shall be made
in conformity to the rules applicable to the
actions Of ejectment az common law. Plain
tin alleged ownership and let out the title
under which he claimed possession BY
defendant, and prayed for restitution ant
general relief. These were sufficient tc
constitute an action Of trespass to try title
(46 Texas, Az, 20 Texas, 537, A Texas
503) Although, according to thu
date written ON the notices Of tn,
sale under the deed Of trust, there
would have been but twenty. nine instead
OF thirty days, as required, but Hutchin,
testified that the notices were posted a day
preceding, making the thirty days. Held
The recital on the notices Of the date an
not conclusive evidence as to the time wher
they were posted. The actual date on which
they were posted was question Of fact
and might be proved as any other fact
Parol evidence was maniiestly admissible
Schneider 4 Bro. W. Bray: from LANAI
county. Opinion by Willie, 0. ]. indie
psndant ofthe 10th article and sd section
Of the constitution Of 1870, the suryivin,