time of Patterson's death, in June, 1891, he

son, on the

day of June, 1891, he had had on deposit with appellant the sum of on deposit with defendant the sum of two $2,000; and judgment was rendered against thousand dollars, and no more; that it refusappellant for that amount, with 6 per cent. ed to pay the same to any one until it had interest from March 9, 1894, the time the been established who were the heirs of said suit was commenced.

Patterson; that in two suits in the district It was proven, and is not disputed, that ap- court of Travis county, Texas, it was deterpellee is a daughter and only child of W. T. mined who the heirs of said W. T. Patterson Patterson; that her mother was an Indian were, to wit, in cause No. 10,393, G. M. Patwoman, named Alcy; and the only question terson vs. Francis Patterson, and in cause of fact in the case is whether or not she and No. 11,078, Estate of Wm. T. Patterson, proPatterson were married at the time appellee bating the will of said Patterson; that after was born, which was about the year 1818. it was established in said causes who were At that time, and prior thereto, Mrs. Alcy, the heirs of Wm. T. Patterson it paid out as she was called, was the surviving widow said money to the parties so shown to be the of a man named Atkins, who, it appears, heirs of said Patterson, and who are indeed went to California, and died. Mrs. Alcy re- his heirs." Then follows a statement of the mained in the Creek Nation, in the Indian sums paid out, and when paid out to each Territory; and, though there is no positive of the parties so found to be his heirs, giving proof of such an agreement, there is evidence names of each. The district court sustained tending to support the conclusion that W. T. an exception to so much of this plea as statPatterson and Mrs. Alcy, without having any ed to whom and why appellant had paid the marriage ceremony performed, agreed to be- $2,000 held by it for Patterson at the time come husband and wife, and the evidence is of his death; and this ruling is assailed by quite clear that they lived and cohabited with appellant. We do not understand counsel each other for a considerable time before for appellant to contend that, because it was and after appellee was born, and publicly prcved and decided in the suit between G. recognized and treated each other as husband M Patterson and Francis Patterson that and wife; that during that time, if Patterson certain persons were the only heirs of W. T. did not entirely support Alcy and her child, Patterson, therefore appellee, though not a he contributed largely to that end; and for party to that suit, is estopped from showing years afterwards he acknowledged appellee the contrary; but the proposition relied on is. to be his child, and contributed to her sup- stated thus in appellant's brief: "The probatport. It was also shown that at the time in ing of said will of W. T. Patterson was a question the Creek Indians had no written proceeding in rem, and the finding of the laws concerning marriage, and that, accord- court in said proceeding of who the heirs of ing to their customs and usages, the facts W. T. Patterson were is binding and concluabove recited would show a valid marriage. sive against all the world." We are not preSuch being the case, although there are some pared to agree to this proposition in its encircumstances in evidence tending to show tirety. It may be conceded that a proceedthat it was not Patterson's intention to, and ing to probate a will is a proceeding in rem that he did not believe that he had, legally as to all the property disposed of by the will, married the woman, Alcy, we cannot say but it is not such a proceeding as to proper'that the court's finding on this issue is not ty not disposed of by the will, and therefore correct.

not involved in the probate proceeding. If After the evidence had been introduced, the plea had shown that the will of W. T. and while the defendant's counsel was reply- Patterson had been probated, and that it deing to the opening argument of the plain- vised the property here involved to some pertiff's counsel, and contending that the plaintiff son other than appellee, it would have precould not recover, because she had not plead- sented a sustainable defense. As to property ed any customs and laws of the Creek Na- not devised, heirship cannot be established tion concerning marriage, the trial court al- in a proceeding to probate a will. But it is lowed the plaintiff, over the defendant's ob- not claimed that the will, or the probate projection, to amend her petition in that l'espect; ceedings, had any reference to the subjectand that ruling is assigned as error. Not- matter of this suit, and therefore we think withstanding the verbiage of the statute, and the plea was properly stricken out. No resome decisions tending to support the ob- versible error has been pointed out, and therejection that it was too late to amend, under fore the judgment will be affirmed. Affirmthe latest case by our supreme court that has ed. come to our knowledge, as well as some former decisions, it was within the discretion of the court to allow the amendment; and the

GLASSCOCK V. STRINGER et al. record does not disclose any abuse of discretion. Telegraph Co. v. Bowen, 84 Tex.

(Court of Civil Appeals of Texas. Jan. 15,

1896.) 477, 19 S. W. 554. The fifth section of ap.

JUDGMENT--LIEN ON HOMESTEAD-ALLOWANCE IN pellant's answer reads thus: “Further spe

LIEU OF EXEMPT PROPERTY-WHO ENTITLED. cially answering herein, the defendant says

1. A duly filed and registered judgment that at the time of the death of W. T. Patter- against a homesteader becomes a lien on the land occupied as a homestead on its being aban- , and, if our conclusion should be based upon doned as such. 32 S. W. 920, reversed. Marks

their testimony alone, we would be compelled v. Bell (Tex. Civ. App.) 31 S. W. 699, followed. 2. The minor children of a son of a de

to hold that some of the Peck purchase was cedent are not entitled to an allowance in lieu not homestead. John Stringer says that he of exempt property, where such son's family

was the only child that lived at his father's were not constituents of deceased's family at house at the time of his death; that they had the time of his death.

been living at the same house 242 years at On motion for rehearing. Granted.

the time of his father's death. “The property For prior report, see 32 S. W. 920.

left by my father at the time of his death

of outlot 35, Div. E consisted of two dwelCOLLARD, J. We adhere to our former ling houses,-a brick dwelling and a frame opinion in this case in all things except what

cottage. A fence separates them part of the was said concerning the effect of the regis- way, and the wall of the frame house is in tration of the Glasscock judgment abstract the place of the fence pa.t of the way. My in suit No. 988, for $383.80, and the quantity father moved to the frame cottage in 1885, of the land constituting homestead.

where he resided to his death, in May, 1888. 1. We recede in part from what was said The brick house was rented out when it as to the effect of the registration of abstract could be done, but the cistern was always of the judgment mentioned. The registra- used by my father's family, as was also the tion and the index was a compliance with the horse lot and cistern house or lumber room. statute, and it took effect as a judgment lien My mother and myself have continued to ocunder the statute as soon as certain of the cupy the frame house since his death. I do property was abandoned as a homestead by not remember the names of all the tenants John Stringer and family. When the ab. that occupied the brick house, nor how long stract was registered and indexed, the prop- they lived there, nor how much rent they erty was all homestead, and no lien could paid I never claimed the brick house as a then attach; but a lien attached on a part of | part of my homestead. My father first moved the land as soon as it lost its homestead char- there in September, 1871, and lived there unacter by abandonment. This was the hold. til March, 1872, when we moved out in the ing of the court of civil appeals for the Fifth | country.

country. He thon moved back to the brick judicial district at Dallas in the case of Marks dwelling in the latter part of 1873, and lived v. Bell, 31 S. W. 701, and the reasoning of the there until 1877, when we moved to the Avecourt in that case is entirely satisfactory to nue Hotel, where he lived until 1882. us. The lien in such case is distinguished then returned and lived there until he refrom the lien by levy of an attachment or moved to the frame cottage in 1885, where he execution upon property which is homestead, resided until his death, in May, 1888."

Mrs. and afterwards abandoned as such; as in Clara D Stringer testified that John Stringer, such cases the lien, if it exists at all, must Sr., was her husband, and that they lived totake effect at the time of and by the levy, gether for 50 years, until his death, on the whereas in the case at bar, the record being 5th day of May, 1888. "At the time of my in accordance with the statute to create a husband's death, myself, John Stringer, Tay. lien, the lien is created when the property be- lor Stringer, and Mrs. Maynard composed the comes subject to it, and not until then, and family. My son John Stringer was the only hence is not affected by any homestead right. child who remained with the family at my The lien arises as it would if the record were husband's death, and he was then 43 years made on the day of abandonment of home- old. There are two houses on the premises stead. It should not be held that the lien in question, but only one cistern and one failed because the record was prematurely stable. The frame house was built in 1883. made. Then we must hold that the lien of We lived in the brick dwelling in 1882, and the judgment was good upon and applied to moved to the frame house--my present place that part of the homestead abandoned, and of abode-in the latter pari of December, 1835. that plaintiff beiow is entitled to judgment We rented out the brick dwelling and yard, foreclosing his lien by the judgment in suit but continued to use the cistern and lumber No. 988 for $383.80 against defendant Peck room, as shown by the plac." We find the and all the defendants, Peck's deed of trust facts stated by John and Mrs. Stringer are and purchase of the property being subse. true. We refer to the plat as contained in quent to the abandonment of part of the the record, pages 80 and 81. The horse lot homestead; and for this purpose the debt is on the west end of the lot, 22.7 feet by 70 due by the judgment must be established. feet in dimensions; that is, 22.7 feet off part

2. There is no escape from the conclusion of the west end of the 93 by 138 feet. The that part of the property had been abandoned stable is on the 23 by 138 feet, on which is as a homestead in the lifetime of John String- the frame dwelling; and a part of the lot is er, deceased. The testimony of John String- also on the 23 by 138 feet. The facts are as er, Jr., and of Mrs. Clara D. Stringer, is the stated in the original opinion, except as heremost favorable of all the witnesses in support | in modified. of the lower court's conclusions that the Peck Now, construiag the evidence most forciproperty was not abandoned as a homestead bly in favor of homestead, we conclude that at the time of his deed of trust and purchase; / the land, 23 feet by 138 feet, on which is the

frame dwelling. the horse lot, the cistern, rily living els :where does not show that the and the cistern house or lumber room, consti.

farm was abandoned as a homestead. tuted the homestead of the family of John Appeal from district court, Lampasas counStringer and family at the time of his death, ty; W. A. Blackburn, Judge. and that all the rest of the 138 by 93 feet Trespass to try title by C. Aultman & Co. was abandoned as a homestead at the time against W. W. Allen and wife. From a judgof his death. The 70 by 138 feet, on which ment for defendants, plaintiff appeals. Atis the frame dwelling, the yard, except the firmed. horse lot, the cistern and cistern house, had

W. B. Abney and Thompson & Thompson, been abandoned at the time of his death as a

for appellant. Mathews & Browning, for homestead, and was not a part of the home

appellees. stead, and the same is subject to the lien of plaintiff Glasscock's judgment in suit No.

KEY, J. This is an action of trespass to 988, which lien should be foreclosed in this

try title, involving adverse claims to a tract suit, and sale ordered as prayed for in peti- of land. Appellant claims through a sale tion.

made under an execution against W. W. Al3. We do not think the minor children of

len. Appellees claim that at the time the Taylor Stringer are entitled to any allow

levy and sale were made the land was their ance in lieu of exempt property, as allowed homestead, and the court below so found, by the court below, out of the estate of John

and for that reason rendered judgment for Stringer, deceased. Taylor Stringer and his .

them. Appellant assigns error on this rulfamily were not constituents of the family of | ing, the contention being that all homestead John Stringer, deceased. None of them lived

rights in the land had been abandoned. The with John Stringer. Taylor Stringer's fam

property in question is a farm in Lampasas ily was independent and separate from that

county, It became appellees' homestead in of his father. The minor children of Taylor 1882, and they continued to occupy and use Stringer could only have been allowed an

it as such until 1890, when they moved to the amount in lieu of exemption out of the estate

town of Lampasas, and occupied a house and of their father, and we hold that the lien of

lot owned by them in said town, until after the plaintiff must be established as before

appellant had the farm levied on and sold in stated, without regard to such allowance,

1893; though the evidence shows that in The fee of $25 awarded to J. W. Brady, Esq., June before the levy was made in August guardian ad litem of the minor children of

appellees were preparing to return to the Taylor Stringer, deceased, and taxed as costs

farm, and had two of their minor sons plowin the case, will be allowed to stand. Such a

ing the field preparatory to sowing fall fee is authorized by the statute when minor's

wheat. Among other things, the trial court are made defendarts in a suit, and a guard- found as follows:

found as follows: "Eighth. I find that in ian ad litem is appointed to defend the suit

1890, when defendant left the land in dispute, for them, which fee is to be taxed as costs

and moved upon said property in the city of the suit. Rev. St art 1211.

of Lampasas, that the purpose of such reAs judgment will be here rendered for

moval was to educate his children; that he plaintiff below as stated in the foregoing,-- intended to return to the land in dispute such judgment as should have been rendered

within a period of about three years from by the court below,-all the costs of the suit

the time he so left it; that he at no time inin the lower court as well as of this appeal tended to permanently abandon the property, will be taxed against defendants, including

but, on the contrary, during all the time he the compensation allowed the guardian ad

was absent from the property, he intended to litem. The judgment of the lower court is

return to it after sending his children to reversed, and it is ordered that judgment be school for said period of three years." This here rendered for the appellant, Glasscock, in

finding is amply supported by testimony, accordance with this opinion. Reversed, re- and, in our opinion, is conclusive of the quesformed, and rendered.

tion of homestead. There being no intention to permanently abandon this property as a homestead, but, on the contrary, the inten

tion being to return, and use it as such, in C. AULTMAN & CO. V. ALLEN et ux. about three years, there was no abandon(Court of Civil Appeals of Texas. Jan. 15,

ment of the homestead rights therein, al1896.)

though in the meantime appellees occupied HOMESTEAD-ABANDONMENT – What CoxstitUTES

as a residence or temporary home other prop-EVIDENCE.

erty belonging to them. And this holding 1. The facü chat the owner and occupier of does not result in allowing them two homea farm moves from it to a city to educate his

steads. The farm being the homestead, the children, with the intention to return to the farm in about three years, does not constitute

town residence was not homestead. an abandonment of the farm as a homestead. It was proper to allow appellees to testify

2. A husband and wife may testify that that when they left the land they intended when they left a certain farm claimed as x

to return to it. Nor did the court err in overhomestead they intended to return to it. 3. The fact that the owner of a farm claim

ruling the motion for a new trial. Conceded as a homestead offers to sell it while tempora ing proper diligence to secure the evidence of F. J. Harris, his testimony, to the effect as a reason for its judgment, among other that W. W. Allen, while living in town, offer things, stated that it found against the aped to sell the farm, would not probably pellant, because it did not appear that the change the result upon another trial. Men plaintiff had any interest in the land or waoften try to sell their homesteads, and such ter course in question. In view of the facts, an offer does not change the fact of home- if the matter complained of constitutes a nuistead. We adopt the conclusions of fact sance, it is of such a public character which and law filed by the court below, and affirm the city may abate or restrain. This was so the judgment. Affirmed.

decided in City of Llano v. County of Llano, 5 Tex. Civ. App. 133, 23 S. W. 1008, and in City of Belton v. Central Hotel Co. (decided

by this court December 18, 1895) 33 S. W. CITY OF BELTON v. BAYLOR FEMALE 297, a case involving the same character of COLLEGE.

nuisance as is complained of in this case.

The court was in error in its ruling in this (Court of Civil Appeals of Texas. Jan. 15,

respect. 1896.)

The court also based its judgment upon MUNICIPAL CORPORATIONS-ACTION TO ABATE NUI

other reasons, which were to the effect that SANCE_WHEN MAINTAINED-EVIDENCE --SUFFICIENCY-DEFENSE.

the matters complained of did not in fact 1. A city can maintain an action to abate a

constitute a nuisance. If the evidence upon nuisance caused by the emptying of a private which the court based this ruling clearly essewer into a creek running through the city, tablished the fact found, we could support though it has no interest in the land or the creek in question. City of Llano v. County of

the judgment of the court upon this concluLlano, 23 S. W. 1008, 5 Tex. Civ. App. 133, sion, although it erred on the other branch and City of Belton v. Central Hotel Co. (Tex. of the case, in holding that the nuisance was Civ. App.) 33 S. W. 297, followed.

not of such a character that the city may 2. In an action by a city to abate a nuisance caused by the emptying of a private sew

abate or restrain it. The testimony of a er into a creek running through the city, wit- number of witnesses on behalf of appellant nesses for plaintiff testified that the discharge establishes the fact that the discharge of the when the water was low caused the refuse mat

waste water and refuse matter from the ter to collect and generate offensive odors. Witnesses for defendant testified that they did not college building into the creek, when the wadiscover any of the bad odors complained of, ter was low in it, caused the refuse matter and that they went to the place to discover if there were any offensive odors. It did not ap

to collect, and generate offensive and unpear that the time to which they referred was healthy odors. The testimony of the witthe time testified to by plaintiff's witnesses. nesses in behalf of appellee that tends to esHeld, that the evidence did not clearly estab

tablish a different state of facts is of a lish the fact that no nuisance existed. 3. In an action by a city to abate a nuisance

negative character to some extent. Those caused by the emptying of a private sewer into witnesses testify that they did not discover a creek, it is no defense that the city authorities

any of the bad odors complained of, and authorized defendant to construct the sewer, and empty it into such creek.

that they approached the place where the ref

use matter was collected in order to detect Appeal from district court, Bell county; if there were any offensive odors. It does W. A. Blackburn, Judge.

not appear that the time in which they enAction by the city of Belton against the

deavored to ascertain if such odors existed Baylor Female College to abate a nuisance.

was when the water was at a low stage in From a judgment for defendant, plaintiff ap

the creek, or was at the same time testified peals. Reversed.

about by the appellant's witnesses. The witJames Boyd and W. K. Sanders, for appel- nesses of both sides may have stated the lant. Sanders & Harris, for appellee.

truth, for the bad odors may have existed at

the time testified about by the complainant's FISHER, C. J. This action is by the city witnesses, and may not have existed at the of Belton against the appellee, to abate a time appellee's witnesses failed to discover nuisance arising from the discharge of offen- the odors. Hence we conclude that the evisive matter conducted in a sewer from the dence upon this issue offered by appellee was Baylor Female College into Nolan's creek, not of such a conclusive or certain characa natural water course running through the ter as would authorize us to rest the judgcity of Belton, and to restrain the appelleement of the court below upon it. in the continuation of the nuisance, on the The court below admitted the testimony ground that the odors arising from the fecal of certain witnesses to the effect that the and refuse matter render the atmosphere to city authorities had authorized the appellee many inhabitants of said city unhealthy, to construct the sewer, and place the refuse and that the same is a public and private matter complained of into Nolan's creek. If nuisance. The judgment below was that the the matters complained of create a nuisance, plaintiff take nothing, and that the defendant | the appellee cannot justify under a pretended go hence with its costs, and that the injunc-authority from the officers of the city. The tion be dissolved, and plaintiff's bill be dis- city itself cannot create a nuisance that afmissed.

fects the health of its inhabitants, and, if The trial court, in its conclusions of law, I such is the case, it cannot authorize another