Mr. Freeman says: .. The sale"of bomestllad property under execution has fl'equently been enjoined. Tbe injunction. in sucb cases, has uniformly been justified upon the ground that the sale, if permitted to be made, would create a cloud on the defendant's title." Freem. Ex'ns, § 439. In Thompson on Homesteads and Exemptions, (section 681,) it is said };lythe author that-.','One ,of the grounds On which courts of equity frequently interfere for the protection of the debtor's homestead is cloud upon title. Thus, where a bouse constituting a partQ! a debtor's homestead has been sold under an execution against bim, although ,the sale confers no title. yet it constitutes such a cloud upon the debtor's title that eqUity will interfere to enjoin possession. So, in to prevent aQloud being cast upon his title, a court of eqUity will enjoin a threatened sale of a debtor's homestead." See, also, 10 Amer. & Eng. Law, p. 809, tit. " Injunctions." Reference ll.1so to the cases will conclusively show that injunction, is remedy to prevent the threatened sale of a homestead under circumstances disclosed by the bill iothis suit. Gardne:r v. Dougla88, 8Upra; Van Ratcliff v. CaU! 72 Tex. 491, 10 S. W. Rep. 578i F'ink v. O'lfeil, 106 U. S. 272, 1 Ct. Rep. 325. ' Defendants rely, in support of their position, upon Whitman v. Willis, 51 Tex. 421i Carlin v. Hudson, 12 Tex. 202; and Cameron v. White, 3 Tex. 152. 'It isappll.rertt from an examination of those authorities that they are without application to the facts as set forth in the bill of complaint. There no homestead question was involved. Here the only purpose ofthe bill is to restrain the sale of homestead property, which is securely protected from forced sale by the constitution and laws of the state, The demurrer to the bill should be overruled; and it is so ordered. '
fla!. fl. HAYNER
CD£8trict Court" W. D, Texas. March 12, 1899.)
In Equity·. Suit by John A. Webb and wife against Hayner &, Co. and Paul Fricke to enjoin the sale of a homestead. Heard on demurrer to bill. Overruled. (Jeo1'ge e. Pendexter. for complainants. JamesB.(Jojf. for defenqants.
14AXEY, District Judge.. The bill in this suit is in all respects similar to thlit in case No. 182, (49 Fed. Rep. 601,) except that in the present bill it appears that the execution was levied by the marshal upon different. but adjoining. property; and the complainants in this suit have no homestead other than that described in the bill. which is used solely for business purposes. The llemurrer of defendants raises the same grounds of objection as those already considered, and a must follow. It is therefore ordered that th.e,deJDur.rer be overrqled.
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tCCrduli' oburl. 'D;
OJ" , ,i I .. , PlamiUl' and defendil!itbanks for several years had acted In., th.e.. o.olle,ction.Of .ohecks, no.tes, and d. .r a.f.t.s, the practice' betng'f. Ot". 'each to credit . . . .. tho f.O.r . c.4s Whe.n . ..f.. ordrafts lin.d..lJ.OtE1J! .. n villed f t.he.ir .. " pa;ttleilt;'· WMn a oheQk was returned. unpaid after bEiuig credited, t\Ie \\ttlount agmn.The ainburtt.s thus 1l01leof.cl1!were Intngled with , thereof oithe.ballk. PlainUft'sent defendant a note for "cOllection and ,oredit," wWoQ,. on maturity, was paid by a oredit was.immediat81y given on'tlie booftlt'.' But defehdantfailed, .andtlle oheok passed in,tp the hands of the re, oaiver; HeU!-1lnat, in View of the course of dealhig. the twpbanks stood in the relation of debtor and oNlditor with respect to theamoutit of the oheck,alld it be· came a part of the of the bank. '
In Equity. i:SUif by the Franl'lin iCounty National 'B,ank against recei\ter of the National Bank; to'recover pas. Thomas P. 'session o(a' certain check or its proceeds. Heard on .demurrer to the 'bill. Sustained: ' ." . ' G'amten BrfYll1fie, for H.utchins & Wheeler and Frank D. A¥en,U;S. Atty., for defendant.
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Covr,Circpit JudgE(' .'l'his upon de.murrerto the bill The?efe1)dant is ofthe Maverick National 'Bank, Wh1ch,closed doors for bUSIness, October 31, 1891.. For eral years' p'ri9r. to' th1sdate the Maverick Bank had been the agent of to collect checks. on,. other banks, and drafts and the vidu'al riotes,ofother wrttes. of dealing, the Maverick Bank received such checks, dralts. and' notes, crediting the checks to the complainant when received, and crediting the drafts and note!:! when it was advised of their payment; and UpOI1 such credits it allowed the plainant a certain rate of interest, but whenever a check received by the Maverick Bank, and credited to the complainant, was returned unpaid, the amount so credited was charged back to the complainant. The plainant was also agent of the Maverick Bank to collect checks, drafts, . and notes payable in Greenfield, Mass., where the complainant was 10,and the amounts of. such che,cks w,ere credited ,..to the Maverick Bank on and the amounts of such ,'drafts.and notes upon the advice of payment. The amounts collected were not kept separate by either bank, but the money was mingled with the general funds. On the 28th of September, 1891, the com plainant mailed to the Maverick Bank a letter inclosing various checks and notes... The letter stated that they were inclosed for "colleetion and credit." . Arnong was a note for $10,000,dra:wn by Brown,DurreU & Co., of B!>st0n, payable to their oWn by toemand also by J. A.Brown. The note fell due October3t,1891, .and Browo, purreU & Co. delivered to the said )j;averick· Bank,' before it suspended, their check, drawn on the -North NationaL Bank,for $10,000, in payme1)t of the note. This check was also indorsed by Brown, Durrell & Co. and J. A. Brown. Upon the re-