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himself. (See note, p. 738.)

TRESPASS to try title. The opinion states the point. The
defendant had judgment below.

F, Barnard, for appellant,

Foard tC* Thompson, for appellee.

Gould, A. J. After the death of his wife, in 1867, Daniel
Draub, with two children of that marriage, continued to occupy
Ihe same homestead, it being community property. His son be-
come of age and lived elsewhere, and in 1873 his daughter married
and ceased to live with him. In 1874 Kessler recovered a judg-
ment against him, under which he levied on the late homestead,
and having bought it in, brought this suit to recover possession.

The question presented is whether, Daniel Draub continuing to
occupy the same place as his residence, but having with him no
family other than at times a single servant, that place was, in 1874,
protected from forced sale as his homestead.

Taylor v. Boulware, 17 Tex. 77, is authority for the continuance
of the exemption in favor of the surviving husband, "though
without servants or any one with him," so long as the place con-
tinued to be his residence. See also Wood v. Wheder^ 7 Tex. 13.

Digitized by


728 TBXAS,

Eeflfller t. Disab.

That the widow^ under like circamstanoes, retained her home-
stead rightSy has never been qaestioned, and indeed conld not be
under the provisions in her favor in the various probate laws of
the State. The act of August 15, 1870, which was in force in
1874, provided that exempt property should form " no part of the
estate of a deceased person when a constituent of the family sur-
vives/' — apparently extending to the widow no greater protection
than to the widower, both being constituents of the family.

It is not proposed to discuss the question, or attempt to vindicate
the reason and consistency of the law in continuing to protect the
surviving husband in the late homestead of the family, whilst it
denies to him, or to any single person not the head of a family, like
protection in a newly acquired home. It is enough that we find in
the constitutional and statutory provisions on the subject, and in
the decisions of this and other courts, authority for our conclusion,
that at the time of sale, Daniel Draub was still protected in resid-
ing on the late family homestead. Const, of 1869-70, art. 12, §
15; Paschal's Dig., arts. 5487,6834; Taylor x. Boulware, 17 Tex.
77; Wood v. Wheeler, 7 id. 13; Silloway v. Brown, 12 Allen, 30;
Burneyw Leeds, 51 N. H. 253; Smyth on Homestead, §§ 151, 152;
Const, of 1876, art. 21, § 52; Rev. Code, art 2009.

Under the evidence, the court did not err in holding that Daniel
Draub had not abandoned his homestead at the time of the sheriflTs
sale. His subsequent sale of his half-interest to his children was
not a matter of which creditors could complain, and certainly gave
the plaintiff no right to recover in this suit.

Judgment affimted.

Note by thk Rbpobter.— The same conclusion was reached in KUnbrel ▼. IFiQiit, 97 ni.
405. The court said: ** The proofs show ttie plaintiff to have been the owner of the land ;
that he moved thereon some twenty-six years ago; that at that time he had a wife and
eleven children ; that his wife died about eighteen years since; that his children had all
reached their majority, the youngest two or three years previously. He says that he never
removed his household goods from the place ; that for the last four or five years he had
rented the land mo^t of the time ; that he had no team, and worked around, returning at
times to the place as his home ; that he had no family living with him at the time of the
rendition of the judgment or of the execution sale.

*' The estate of hom^tead imder the statute is allowed, not to any person occupying
premises of the designated value as a residence, but to * every householder, having a
family,* so occupjring premises.

'* Plaintiff once was a householder having a family, and became entitled to an estate of
homestead in tlie premises. He afterward ceased to be such a householder, and was not
such at the time of the judgment and execution sale in this case.

The inquiry then <s, whether plaintiff, having once acquired an estate of homestead by
virtue of being a householder having a family, lost the estate on cea^ng to be a house-
holder having a family — whether the being such a householder having a famtb'. which is

Digitized by


TYLER TERM, 1879. 729

Eessler v. Dntab. «

the eseential condition of the creation of such an estate, is also the necessary condition of
its continuance. The statute makes no expression in this regard. It mentions several
ways in which the estate may become extinguished, but does not name among them the
ceasing of the relation of such householder, as above, and contains no hint in respect to
the continuance of such relation as being necessary to the continuance of the estate.

" There is much force in the observation that the Homestead act has respect to the family
of the debtor, is for its benefit, to secure a home for the family, and that iu any case where
tliis family relation is not found to exist, the homestead exemption does not subsist, there
being no reason or cause for the application of the Homestead law. This is very true as to
the coming into existence of the homestecul estate, and although the prime object of the
statute be the securing of a home for the family, and for the benefit of the family as such,
the second section of the statute shows that not to be the sole purpose throughout. That
section provides, that upon the death of the original owner of the homestead, the home-
stead exemption shall continue after the death for the benefit of the husband or wife surviv-
ing, so long as he or she continues to occupy the homestead. It is not so long as he or she
also remains a householder having a family, but simply so long as he or she continues to
occupy the homestead, entirely irrespective of the condition of being a householder having
a family. There may be no surviving child and no family, still the homestead exemp-
tion is continued to the surviving wife or husband, so long as she or he continues to oc-
cupy the homestead.

" If then the homestead exemption may continue in such surviving husband or wife so
long as he or she continues to occupy the homestead, without the condition of being a
householder having a family, why. in the case of the original owner of the homestead
before his death, after the homestead estate has once become vested in him, should
not the homestead exemption continue for him so long as he occupies the homestead
premises, although he may have ceased to be a householder having a family? Why
should not the statute in this respect regard him, the original owner, the meritorious cause
of the homestead exemption, with equal favor as the survivor of such an one after his
death? We are of opinion that it does, and that within the spirit of the second section, and
the fair intent of the Homestead act, taken together, the homestead exemption continued
here after plaintiff had ceased to be a householder having a family; that after the home-
stead estate has once been acquired, under the statute, it continues in the original owner
so long as he occupies the homestead premises, although he may have ceased to be a house-
holder having a family, and will only become extinguished in some one of the modes men-
tioned In the statute, of which ceasing to be a householder having a family is not one.
This rendering of the statute would be in accord with the liberal interpretation which this
court has always given to the Homestead law.

*' We are referred to decisions of courts in other States, as RevdUc v. Krcemer^ 8 Cal. 66,
and Cooper v. Cooper, 24 Ohio St. 488, that where the householder ceases to have a family
his homestead exemption ceases, but they were under peculiar State statutes, differing, as
we take it, from ours. We are not satisfied that under the phraseology of our statute, the
construction there would have been different from the one we adopt. '*

The principal case is also supported by Doyle v. Coburju, 6 Allen, 71, and TTood* v. Z>at)is,
84 Iowa, 264, which were cases where the wife was divorced and given the custody of the
children. In the latter case, the court said: *' There seems to us greater reason why the
defendant should be allowed to hold this property exempt from the debt sued on, than if
he had been left a widower without Issue and continued to occupy it.'' The '" decree does
not exonerate him from liability to support the child. ** " The Homestead law is intended
for the benefit of the children as well as the parent.'' The same doctrine is laid down in
Sttloway V. Brown^ 12 Allen, 34, where the wife died, and the children moved away.

In Cooper v. (k)0per^ 24 Ohio St. 488. on the other hand, the court said: " It appears that
at the time he was living alone; that he had three children, one of whom, about five years
of age, was the child of his divorced wife, to whose custody it was decreed by the court,
and has ever since remained with and been supported by her; that his other children by a
former wife lived separately from their father ; that one of these, a son sixteen years of
age, lived in the State of Tennessee, working and receiving his own wages therefor, and
the other, a daughter arrived at nearly the age of majority, did the same thing at another
locality; that both of these children controlled their own wages and supported themselves

Vol. XXXVI— 92

Digitized by



WilUams v. Ball.

enUrely, and with the oonaent of their father, and without any control or aMistanoe trout

** Under this state of the facts, we cannot say the District Oourt were not warranted In
holding that Cooper had emancipated some of his cliildren, and that all of them had ceased
to be members of his family, iu the sense of looking to him for a home ; that he had aban-
doned the idea of haying a homestead for a family, and had therefore ceased to be the
head of a family.

The homestead exemption statutes of this State are based, not so much upon the idea of
a personal privilege to the debtor, as upon that of presenring a family home . The exemp-
tions therefore are prorided only for *the head of a family/ and hare sole reference, as
stated in the title of the act, to * the homesteads of families. '

" Without quoting the particular sections of the statute under which the exemption in
question is claimed, we deem it sufficient to say that they are in harmony with the obvious
policy of the whole act, to exempt the homestead of a family from forced sale, or to give
* the head of a family ' a sum of money, not exceeding $500, ' in lieu of a homestead. * None
of the exemptions were ever intended for the exclusive benefit of a debtor who has no
family, and no occasion for a family homestead ; nor for one who has ceased to be ^e 1
of a family, and has voluntarily abandoned all idea of maint^iinlng a family home."

Williams v. Ball.

(51 Tex. 608.)

JudgmmU — jurUdietion — justices^ courts — impea&hmerU of judgment of,

Jastices' oourts, being created by the Constitution, with defined jurisdictiont
and having exclusive jurisdiction within the defined limits, their judgments
cannot be collaterally attacked as void, although the record does not show
all the facts necessary to confer jurisdiction.

• mRESPASS to try title. The opinion states the point The
X plaintiff had judgment below.

/. M, Long, for appellant.
K. IL Capers, for appellees.

Bonner, A. J. To the introduction in evidence in this case of
the judgment of F. Miles, a justice of the peace, in the suit before
him of Over street £ Rodger s \, A. S, Nowell, and which was a ma-
terial link in plaintiff's chain of title, it was objected, by the defend-
ant, that " the judgment failed to recite or show that A. S. Nowell
was ever legally cited, or waived service, or had his day in court,
when said cause was tried."

The admission of the certified copy of the judgment of the jus-

Digitized by



WUliams v. Ball.

tice of the peace, over this objection, is assigned as error, and brings
up for our consideration the most material question in the case.

The general rule is, that the law will presume that a domestic
court of general jurisdiction had power to make the judgment ren-
dered by it, unless the contrary is shown by the record. The same
presumption will not be indulged in favor of the judgment of a
court of limited or special jurisdiction, but the facts necessary to
tlic exercise of its jurisdiction must afiBrmatively appear upon the

All our courts are limited in their jurisdiction ; but those cre-
ated by express constitutional enactments, with general and exclu-
sive powers to hear and determine all controversies within their
particular judicial sphere, cannot be said to be courts of limited or
special jurisdiction within the meaning of the above rule. Bumhus
V. Fisher, 21 Tex. 567 ; Guilford v. Love, 49 id. 744.

In the case of Bumbus y. Fisher, 21 Tex. 567, in commenting
upon the judgment of a justice of the peace, it is said:

"It is the tendency of American decisions to liberalize the rule
of construction with reference to the inferior courts. Our Probate
Courts generally would strictly come under the denomination of
courts of special and limited jurisdiction. Still liberal presump-
tions are indulged in reference to their orders and judgments, al-
though that which gave the power to act, as the predicate for tak-
ing jurisdiction, might not appear in the record.

" The rule, then, with respect to courts of limited jurisdiction,
that every thing must appear on the record strictly and affirmatively
which will give them jurisdiction to hear and determine, is rapidly
giving way by the application to our courts, as they are actually
constituted, of the same principles which originally formed the rule
with reference to their own courts in England."

It was argued by the learned justice who delivered the opinion in
the above case, that public policy, the nature of the powers and
duties of justices of the peace, and the order of legal capacity which
must be employed to fill this office, forbid that their judgments
should be construed with every intendment against them, as if they
were pleas in abatement, which had to be certain to a certain intent
in every particular. 21 Tex. 569.

In the elaborate opinion of Chief Justice Roberts in the subse-
quent case of Guilford v. Love, 49 Tex. 740, it was decided that our
Probate Courts, though having, under the Constitution, only limited

Digitized by


732 TEXAS,

Williams T. B^l.

and special powers, are courts of general jarisdiction within the
division of subjects allotted to them, and that their orders and judg*
ments made within this scope should be upheld and shielded from
collateral attack, the same as those of any other court of general

It is said by the Supreme Court of Massachusetts, that '' a justice
of the peace exercised his jurisdiction mainly according to the course
of the common law ; his court is for many purposes a court of rec-
ord, to which a writ of error will lie." Martin v. CommonweaUh,
1 Mass. 347, 389; Thayer v. Cammonwealth, 12 Mete. 9; Vattierv.
Hart, 11 Mass. 300; Arnold y. Tourtellot, 13 Pick. 172; Oay \.
Richardsony 18 id. 417.

In our view, the rule which makes the judgment of a court of rec-
ord binding upon the parties until reversed by proper proceedings
therefor, although jurisdiction of the person was not pre perly ob-
tained, is applied as well to a judgment of a justice of the peace as to
one of a court of general jurisdiction, ffendrickx. WhttteTiore, 105
Mass. 28. In that case it is held, that there is a broad distircfcion be-
tween a case where the justice assumed to exercise a judicial power
which he did not possess, and one where lie possessed the requisite
judicial authority, but in the exercise of it failed to secure by proper
proceedings jurisdiction of the person of the defendant. Hendrick
V. Whittemore, 105 Mass. 28 ; Lightsey v. Harris, 20 Ala. 409 ; BiU
lings V. Russell, 23 Penn. St. 189 ; Tarbox v. Hays, 6 Watts, 398.

The case of Mitchell v. Runkle, 25 Tex, Supp. 132, cited by
appellant, was a summary proceeding, penal in character, and not
within the ordinary jurisdiction of the justice of the peace.

The judgment in this character of case should be strictly con-
strued. As said by Chief Justice Marshall in Thachery. Powell,
6 Wheat. 127 : ^*In summary proceedings, where the court exer-
cises an extraordinary power under a special statute prescribing its
course, wo think that course ought to be exactly observed, and
those facts especially which giva jurisdiction ought to appear, in
order to show that its proceedings are coram Judice,^*

Courts of justices of the peace have been expressly provided for
by our several State Constitutions with certain defined limits, like
our Superior Courts, within which they could exercise a general
exclusive jurisdiction, and which, by the Constitution of 1876, was
largely increased.

Doubtless hundreds of titles to lands in this State are based

Digitized by



Williams Y, Ball.

upon their jadgments. To hold that these titles are void unless
the record shows affirmatively all the necessary facts, would virtu-
ally defeat many of them, involve the country in litigation, and
would be contrary to repeated rulings of this court, which hold that
such proceedings should be liberally construed. Freem. on Judg.,
§ 53 ; Clay v. (7%, 7 Tex. 250; Davis v. Rankin, 50 id. 286.

We are of opinion, that judgments of justices of the peace, when
apparently within the ordinary scope of this power and jurisdiction,
cannot, as was sought to be done in this case, be collaterally at-
tacked as being void for the reason that they do not show affirm-
atively all the facta necessary to have given the court jurisdiction.

[Omitting other matters.]

Digitized by






PiBST National Bake of North Bbkkikgtok ▼• Towv Of

Mount Tabob.


Trwt — pMie — delegated to three — one refuHng to exeovte.

A statute authorized a town to issue bonds, to aid the oonstrnction of a rail-
road, upon the written assent of a majority of the tax-payers, certified by
three specified commissioners. Two of the commissioners signed the corti-
cate, but the third, although sharing in their deliberatigns, refused to con-
cur. Held, that the certificate was conclusive, and evidence was inadmissi-
ble to show that the requisite number of tax payers bad not assented.

ACTION for interest on town bonds. The opinion states ti»
case. The plaintiff had judgment below.

W. O. Veazey and W. 0, Duntony for defendant

E. J. Phelps^ for plaintiff.

BoYOB^ J. This was an action brought to reooTer the interest
dne upon certain bonds purporting to be issued by the defendant

Digitized by


OCTOBER TERM, 1879. 735

FinM National Bank of North Bennington v. Town of Mount T&bor.

town under the authority conferred by No. 1 of the Acts of the
Special Sessions of 1867^ and represented by interest coupons cut
from such bonds. Interest coupons detached from bonds, payable
to bearer at a specified time and place^ are negotiable promises for
the payment of money, and therefore subject to the same rules as
bank notes or other negotiable instruments. They are in effect
prom iissory notes by the law merchant, and possess all the attri-
butes of negotiable paper. Jones' Railroad Securities, §§ 317, 320,
322, and authorities there cited. Town of Concord v. National Bank
of Derby Line, 51 Vt. 144. Assumpsit will therefore lie.

The plaintiff was a bona fide holder of the coupons sued upon,
without notice of any defense to said coupons or the bonds to
which they were originally attached, and which were also owned
by the plaintiff. To defeat the plaintiff's right of recovery, the
defendant offered evidence tending to show that the facts set forth
in the certificate which was signed and caused to be recorded by
two of the three commissioners named in the instrument of assent
to which said certificate was appended, were not true. The act
provides (§ 6) that such certificate, if duly executed and recorded,
shall be conclusive evidence of the facts therein set forth. See
First National Bank of St. Johnsbury v. Concord, 50 Vt. 257, 281.
The claim of defendant is that the certificate in this case, being
signed by but two of the three commissioners, was not a compliance
with the act, and consequently does not estop the town from dis-
proving the truth of the facts set forth in it. The offer was to show
that the third commissioner refused " to sign such certificate for
the reason that such instrument of assent had not been signed by a
majority of the resident tax-payers of said town, as required by said
act"; which necessarily implies that he acted with his associates,
although the case does not show that ho took the oath required by
section 6, so far as to satisfy himself that the requisite assent
did not appear upon the instrument, and thereupon refused to con-
cur with them in the decision which they reached and embodied
in their certificate. The question of law presented for our decision,
then, is, was the act of two of the three commissioners, the third
sharing in their deliberations but refusing to concur in their decis-
ion, a suflScient compliance with the law ? In view of the fact that
there is a dictum by Wheeler, J., in DanvtUe v. MorUpdier A St.
Johnsburp' Railroad Co., 43 Vt. 144, 155, in which that learned
judge expresses the opinion, upon common -law principles, that the

Digitized by



First National Bank of North BenningtoD v. Town of Mount Tabor.

authority conferred upon the commissioners under an enabling act
almost precisely similar in its terms, so far as the duties and pow-
ers of tlie commissioners are concerned, to this one, was a joint
authority, in the exercise of which all must concur, we have deemed
it proper to give to the subject a more extended consideration than
wo should otherwise have thought necessary. It seems, at com-
mon law, that when an authority is conferred upon several it is
sometimes necessary to its lawful exercise that all should act together
and all concur in the result, while under other circumstances the de-
cision and act of the majority is good, provided all meet and delib-
erate, or have notice so to do ; and in yet other cases the act of the
majority, or the majority of the quorum alone, will be upheld. In
the case at bar it is only necessary to deduce from the authorities
which of the two first named rules is to be here applied.

The distinction is laid down by Lord Coke, Co. Litt 181 h :
"Secondly there is a diversitie between authorities created by the
par tie for private causes and authoritie created by law for execu-
tion of justice. As for example, if a man devise that his two
executors shall sell his land, if one of them dye the survivor shall
not sell it ; but if he had devised his lands to his executors to be
sold, then the survivor shall sell it. * * * If a man make a
letter of atturney to two, to do any act, if one of them dye the
survivor shall not do it ; but if a venire facias be awarded to foure
coroners to empannell and returne a jury, and one of them dye, yet
the other shall execute and returne the same. If a charter of
feoffment be made and a letter of atturney to foure or three joyntly
or severally to deliver seisin, two of them cannot make liverie ;
because it is neither by them foure or three joyntly, nor any of them
severally; but if the sherife upon a capias directed to him make a
warrant to foure or three joyntly or severally to arrest the defendant,
two of them may arrest him, because it is for the execution of
justice, which is pro bono publicOy and therefore shall be more
favourably expounded, than when it is onely for private : and so
hath it beene adjudged. Jurapublica exprivato prarniscue decidi
nan debent:^ Following and applying this principle, the decisions
down through the English reports, though not numerous upon this
point, are clear that when an act is to be done by several which is
matter of public concern, all must meet and confer, and the majority
may then decide. In BUlings v. Prinn, 2 Bl. Com. 1017, where a war-
rant of commitment required to be signed by two justices and they

Digitized by


OCTOBER TERM, 1879. 737

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 81 of 123)