The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-06-29
HIGHER COURTS.
sUpREarE COURT.

lien. mary OeDnaru, Wlie OF II. ii.
Gerhard, owned lot in Waco as her
separate property. This was occupied
as homestead. This lot was sold
and the lot sought to be subjected to
the lien was bought with part OF the
proceeds. At the time Of the pur.
chase and at all times they de-
clared that they intended to
make the lot purchased their
homestead. Plaintiff furnished
lumber to build home upon the lot,
knowing the manner of it's purchase
and the intent of the owners to hold it
as homestead. No contract in writ
ing was made. We think the home
stead right of defendants had attach
ed before the contract was made and
without written contract properly
acknowledged no lien was created up
on the lot. 1t is almost impossible to
lay down definite rules to govern cases
arising under the homestead law.
Each must be governed by it's own
state of facts. This court said in SwOpe
VS.. Stantzetberger, SO Tex, Sin a great
majority of the states it is held that an
actual occupation of the land must
concur with the dedication as pre-
requisite to impress upon it the home
stead character, but a more liberal
rule prevails in this state" Though
intention alone cannot give home
stead right it seems that 1t is the most
potent factor in securing that right.
This intention was plainly shown in
this case. Plaintiffs knew it. The
judgments of the court of civil appeals
and of the district court are affirmed.
Opinion by Brown, IT,
Cargil & Dennis vs.. Kountze Bros.
This case comes before this court
upon writ of error to the court
OF civil appeals for the First
district. Kountze Bros. alleging
themselves to be creditors OF Cargill q
Dennis sought to compel the latter to
make discovery of their assets and
disclose under oath al their assets of
every kind. The district court sus-
tanned demurrer to the petition.
This finding was reversed by toe
court of civil appeals and the cause re-
manded. We are of the opinion that
the district court was correct. Broad
expressions of eminent ext writers
would seem to sanction this proceed
ing. We think, however, the propo.
sitions announced by them are not
supported by the cases cited except in
q restricted sense. Mr.. Freeman says
full and complete discovery may be
obtained OF defendant's assets. e Free
a
cases cited do not sanction a general
bill of discovery like that under con-
sideration. Most of the cases are
where bills were brought against adj
ministrations. 1t is we'll established
that such bill may be maintained.
Other cases illustrate the bringing of
q bill of discovery in connection with
an action to set aside a fraudulent
conveyance. In others the proceed
ings were provided for by statute.
Mr.. Pomeroy sanctions such pro-
ceedings. e Pomeroy's Ed. Jur., sec.
1415). But the authorities cited are
subject to the came objections as those
cited by Mr.. Freeman. In Bispham's
Equity (page 572), this doctrine is sup
ported, but the case cited by him
Newman VS.. Welletts, 81 ILL.,, was q
to set aside fraudulent
conveyance. In the latest edition of |
Story's Commentaries on Equity Ju-
e Story Ed. Jur., 18th |
ed, section 1893, note g., the case cited
in support of the doctrine is New |
Hampshire case where the statute
a, .norizes the remedy. Neither does
the jurisprudence of England recog-
nize the right of a judgment creditor
to compel his debtor by a bill of dis
covery to make disclosure of his
property.
Bills of discovery against executions
were frequently entertained in the
court of chancery, for all these cases
involved trust, and in case of fraudu-
Tent conveyances equity will extend ii
Md where the particulars wherein the
fraud consists are specified. In the
case before us there is no trust, there
is the simple relation of creditor and
debtor. Fraud is alleged, but none is
specified. In Cremer vs. Goey, 20
Tex, 460, such proceeding was char
(.cterized as anomalous. In this case
hs we'll as that of Love VS..
Keowne, So Tex, the court
says that our statutes pre-
scribe this mode of discovery |
as auxiliary to q regular suit. We
think the general trend of our de-
cisions is to confine creditors to their
statutory remedies and not to aid
them in court of equity except in
cases of trust and fraud. Many OF
the states have statutes authorizing
bills of discovery. 1t is in the power
OF our legislature to make such law,
and it must be left to it's wisdom to
determine whether or not it ia proper
TO confer this inq1isitorial powerupo
the courts of the state. The judg-
,ment of the court of civil appeals is
reversed and that of the district count
of Harris county affirmed. Opinion
by Gaines, A. j.
Texas Trunk Railway Co. vs. jack
SIN Bros. This is certified question
from the Second district.
Jackson Bros, received judgment
against the company and its sureties |
on appeal bond in the county court on
the IS of September, 1891. On the 81
of December following the parties
against whom the judgment was rem
~ M ri