Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-17
Supreme Court.

J. W. stayton, c. J.; R. R. Gaines, j. L.
Henry. a. J.
Tbs ScrewInen's Benevolent Association VS..
Thomas Benson; Galveston county. Reversed and
remanded. Gaines, A. J. The writ of man
damus is the appropriate remedy by which to
restore member OF an incorporated order 10 his
rights and privileges in the association. But
this is a remedy of the last resort The rule that
this extraordinary writ will not lie when another
adequate remedy exists applies with peculiar
force TO this character OF cases, where the laws
Of the association expressly provide for an ap-
peal within the society itself.
NJ. Juernemann, guardian, vs.. C.. J. Won
Rosenberg, Henry Bran ct al, plaintiffs in
error, vs.. c. j. Won Rosenberg, defendent in
error; Fayette county. Homestead. Reversed
and rendered, Gaines, a. j. The court below
concluded as matter of law that the minor de-
feudants were entitled to the use of the home
stead during their minority, but that, subject to
this use. the Inheritance OF each of the defend
payment of the ancestor debt We think the
legislative intent in enacting provisions on this
question was 10 utterly exempt the homestead
from the claims OF the general creditors OF an
estate, provid ed a constituent of the family
rived the deceased, and in case the estate was
insolvent, 10 remove 1t beyond the pale OF adj
Dinistration. 1t follows that the homestead IN
this case could not be subjected 20 the payment
OF the plaintiffs debt. The judgment is reverse d
and rendered in favor OF defendants In the court
below.
Henry Bran ct al. VS.. c. ], Won Rosenberg.
Dissenting opinion. Stayton, G. j. While con-
curing in the reversal of the Judgment, am
OF opinion that the interest inherited by those
who are adults fixes upon them liability for
debts Of their ancestors TO extent OF the value
inherited, In Givens VS.. Hudson l64 Texas, All
II was correctly held that upon the death OF the
surviving parent and owner OF the homestead,
his adult heirs, not constituents of his family
could not hold the land free from the claims Of
their fathers creditors. The reasonable con-
stTuctlon of the statute upon the question IS
that the legislature intended, IN case an estate
was insOlyent, to vest the interests owned by a
widow, minor children, or unmarried daughter
remaining with the family, in them absolutely,
free from all claims of creditors; and to secure
them in the right to use the share Of adults, in
like manner freed from claims of creditors Of an
estate. Adult heirs are liable to creditors Of
the estate for a sum equal to the value of their
interest IN the homestead, which may be sold
under execution IN satisfaction OF that naoliltY,
the purchaser taking the interest subject to the
right of the minors to use under the terms Of
the law.
Anna and Charles Graham VS.. Amanda Strewe:
Washington county. Affirmed. Stayton Q. j.
I he conveyance in question IN this suit was
made by the wife alone directly to her husband,
without valuable consideration, and under such
circumstances as to show it was properly can
celled. married woman labors under dis
abilities resulting from coverture. and can make
conveyance where the common law is in force
and gives measure to her capacity TO contract,
only in such manner as the statute may permit.
4. j. Robertson ct al. VS.. G. J. Tom; Wash
ington cOusty. Reversed and rendered. Stay
Ton, c. J. B. H. Bassett liable for the
money in question both as surety on the bond Of
appelee's guardian and as member of the
banking firm with which the money had been
deposited. The claim actually proved and
allowed by the assignees of the banking firm, on
which dividends were received, was identical
with that on which the judgment in this action
on the guardian bond is based. For this claim
both partnership and separate estates were liable.
and a payment from one would satisfy the claim
against both. The discharge of a principal
which discharges a surety must be a discharge
by some act or NEGLECT OF the creditor. The dis
charge in the present case wss & voluntary one,
and not by the operation of law. The discharge
of B. H. Bassett was discharge of his cOsurety.
One taking dividends under an invalid assign
ment is precuded from controverting its validity
n its entirety.
J. 4. Moore vs. F. Giesecke. Washington
county. Reversed and remanded. Henry, 4. J.
We understand every decision on the subject to
recognize the right of the vendee to assert his
equities whenever tAe suit of the vendor Is for q
RECESSION OF the contract. But we do not under
stand that in suits to try title and for possession
the equities in favor OF the yendee, of nature
emitting him to relief, would not be heard. We
see no good reason why the question should de-
pend on the character or form OF the plaintiff s
suit. Whether or not the vendee Is entitled to
any equitable relief will be proper subject OF
inquiry in every case. The re edy by resell
sion is not favored, and slight circumstances will
be treated as a waiver of the right to rescind.