the plea, and there are no exceptions thereto in the record. For aught that appears otherwise, the court may have heard evidence upon the plea, and found that Killeen resided in Galveston county. At a subsequent term of the court, and at the term at which the case was tried on its merits, the defendant Marshall took a bill of exceptions to the action of the court in overruling the plea, which only shows, however, that, upon exceptions being raised to the sufficiency thereof, the court overruled the plea. The bill of exception should have been taken and filed at the term at which the ruling complained of was made. Rev. St. arts. 1358, 1363; Dist. Ct. Rules 53, 60; Price v. Lauve, 49 Tex. 80; Campbell v. Cook (Tex. Civ. App.) 24 S. W. 980. There was a preliminary trial of the plea in abatement had at the July term of the court, but the bill of exceptions was not filed during that term, nor within 10 days from the conclusion of the trial of the plea, and was not filed until the next succeeding term of the court. When it is considered that the purpose of the rule is that the bill shall be taken and filed while the facts attending the ruling of the court which has been excepted to are fresh in the mind of the trial judge and of the opposing parties, it would be unreasonable to give the law any other construction than that the time within which a bill should be taken to an interlocutory ruling of the court should be from the time such ruling was made. Plaintiff having alleged that the defendant Marshall resided in Lampasas county, it may not have been necessary, as held in Crawford v. Carothers, 66 Tex. 199, 18 S. W. 500, for the defendant to have negatived the residence of himself in Galveston county. Boothe v. Fiest, 80 Tex. 144, 15 S. W. 799. Otherwise, on exception thereto, the plea would be good. It is not shown that there was error in overruling the plea in abatement.

Killeen was properly joined in the suit. Plaintiff set out in his petition the facts of conveyance to himself of an undivided half of the lot by Killeen, the subsequent reconveyance by himself, and the conveyance by Killeen to Marshall; averred, also, facts which showed that plaintiff was entitled to one-half of the proceeds of the sale, and charged that both Marshall and Killeen refused to pay over his share of the money, and that Marshall claimed to be withholding it by the instruction of Killeen. The evidence shows that Marshall was seeking to charge the plaintiff with one-half of the purchase money paid by him on Killeen's note for the purchase money, as well as of back taxes. Killeen was certainly a proper party upon this state of facts. Notwithstanding the fact that Killeen's deed contained covenants of special warranty only, he was still bound to discharge the entire purchase money on the lot himself. The deed contained the covenant, ingrafted on it by statute, that the lot was free from incumbrances, and

there was nothing to show an assumption of the incumbrances by Spillane. Rev. St. arts. 557, 558. The incumbrance for the purchase money was also the debt of Killeen himself, and there was enough of the share going to him of the purchase to pay it off fully, without touching any part of plaintiff's share. Plaintiff was liable for one-half the taxes that accrued upon the lot during the time he owned his interest therein, and the court properly charged him therewith, in rendering judgment. The judgment of the court below is fully supported by the evidence, is right, and will be affirmed.

MCNEIL v. MOORE.

(Court of Civil Appeals of Texas. June 14, 1894.)

HOMESTEAD-CHATTEL MORTGAGE-FORECLOSURE

PLEADING-ATTACHMENT.

1. Plaintiff sold an engine to S., taking his note therefor. S. sold it to defendant, title to remain in S. till defendant paid plaintiff's note. Thereafter S. and defendant gave their joint note for the debt due for the engine, and also a lien on the engine to secure the note. Subsequently there was substituted a note secured by mortgage on the engine. Held, that the mortgage was good, though at the time it was given the engine had become attached to and was part of defendant's homestead, and even though it was so attached at the time the lien was given.

2. Where plaintiff sues to foreclose a mortgage on an engine, and defendant pleads and proves that it was part of his homestead at the time the mortgage was given, plaintiff cannot, without appropriate pleadings, avoid this by showing that, while the exemption was good as against ordinary liens, it was not as against the mortgage, by reason of peculiar circumstances.

3. While the title to property attached to and part of a homestead may remain in the seller till paid for, by reason of a provision in the sale, it cannot be attached for the claim of any other creditor of the homestead owner. 4. Though property which has become part of a homestead is subject to a mortgage, it cannot be attached for the mortgage debt.

5. The levy of an attachment being unlawful, damages may be recovered therefor, though there were grounds for attachment.

Appeal from Tyler county court; J. A. Mooney, Special Judge.

Action by B. E. Moore against A. W. McNeil and another. Judgment for plaintiff. Defendant McNeil appeals, Reversed.

W. B. Powell, for appellant. L. F. Chester, for appellee.

WILLIAMS, J. This suit was brought by appellee against appellant and one Smith on a note for $300, and to foreclose a mortgage given to secure it on an engine and boiler. An attachment was sued out and levied on the engine and boiler, and on other machinery. Smith made no defense, but appellant pleaded that the property mortgaged, as well as that attached, was, when the mortgage was given and when the attachment was levied, attached to his homestead and constituted a part of it, and was

that one Milner sold Smith the engine and boiler, taking his promissory note, without security, for the price. Smith thereafter sold them, together with the other property seized under the attachment, to McNeil, under the agreement that the latter should pay all debts against it, including that due to Milner, and pay a balance of $1,000 to Smith, and that the title to all this property should remain in Smith until McNeil had paid the purchase money. Some months after this trade was made, McNeil and Smith gave their joint rote to Milner for the debt due him for the engine and boiler, and a lien upon them to secure it. Whether at this time McNeil was the head of a family, or whether the engine and boiler had then been attached to the land constituting his homestead, does not dis tinctly appear. Thereafter the note sued on was substituted for that last mentioned, and a mortgage on the engine and boiler was given to secure it, and both were transferred by Milner to appellee before this suit was brought.

Under this state of facts, we are of the opinion that the mortgage on the engine and boiler was good. By the agreement between Smith and McNeil, the latter was required to pay the Milner note, and no title was to pass until he had done so. As against Smith, he could, therefore, acquire no complete homestead privilege in the engine and boiler so long as that debt was unpaid. Their rights so stood when the second note was given, by which a lien upon this property was conferred upon Milner. This changed the form of the contract between Smith and McNeil from a conditional sale, and vested in the latter the title to the property, incumbered with an express lien. This is true whether he was a married man and whether the engine and boiler were then attached to the land or not. For, his homestead right not having attached, but depending on the payment of this debt, it was entirely competent for the parties to make this change in the form of the transaction by which the debt was secured. The husband had ample power, even as against the wife, to so adjust the claim against the property, especially as the last arrangement was less onerous than the first had been. Clements v. Lacey, 51 Tex. 150; Harkey v. Cain, 69 Tex. 146, 6 S. W. 637. So that, while the legal title may have passed to McNeil under this second transac tion, it was charged, in the very act, with the lien to secure Milner's debt. The giving of the note and mortgage sued on simply put

this debt and security In a different form. As, however, the property was attached to the homestead at the time the mortgage was given, that instrument, prima facie, was not valid. In order to charge the lien on the property, it was necessary for plaintiff to go behind the mortgage, and show facts to sustain the lien which did not arise from the mere execution of that instrument. Such facts should have been pleaded. As the homestead right was complete against creditors and liens generally, the defendant made out his defense, prima facie, when he showed that the mortgaged property was part of his homestead. Plaintiff did not rebut these

This could not be done pleadings. Willis v. But none of the prop

facts, but undertook to show others in avoidance of them,-that, while the exemption was good against ordinary debts and liers, as to him it was not good, because of an exceptional state of facts. without appropriate Hudson, 63 Tex. 682. erty was subject to the levy of the attachment. If, notwithstanding the transaction between the parties subsequent to the sale by Smith to McNeil, the title of the other property still remained in the former, which is the most that can be claimed, but as to which we express no opinion, that fact would not render such property subject to attach.ment for the debts of McNeil due to third parties. McNeil could acquire the homestead right in such property, complete as against The latter every creditor except Smith. might have the right to resume the possession of the property for noncompliance by McNeil with the conditions on which his title depended, but no one else could subject it to a debt. Milner's debt constituted no lien on the other property, and, if it had, he would have had no right to take it by attachment. Low v. Tandy, 70 Tex. 748, 8 S. W. 620. Nor had he the right to take the mortgaged property from McNeil's possession by attachment. Until the lien was foreclosed and the property sold, McNeil was entitled to hold it, unless it was taken from his possession by a different process from that pursued. As against the attachment, his homestead right was a complete defense. It therefore becomes unnecessary to determine whether or not the attachment was wrongfully sued out. If the ground for it existed, still the levy was unlawful, and entitles appellant to recover such damages as he may have sustained therefrom. Reversed and remanded.

MICHALKE v. GALVESTON, H. & S. A. RY. CO.

(Court of Civil Appeals of Texas. June 14, 1894.) RAILROAD COMPANIES-ACCIDENT AT CROSSINGCONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. -DAMAGES WHEN INADEQUATE.

1. In an action for injuries received while attempting to cross defendant's track, plain

tiff's evidence showed that he knew defendant's passenger train from the east was late; that his view of the main track was obstructed by buildings and by cars on a side track; that the main track to the east was straight for a long distance: that, at the time of the accident, it was raining hard; that he did not stop before crossing, but listened, and heard no train approaching; that he looked west, and saw nothing, and looked east just as he stepped on the main track, when he was struck by the train. Held, that plaintiff's contributory negligence was for the jury.

2. Plaintiff's ankle was broken and pernanently crippled, and he suffered from that nd injuries to his side and arm great pain or three months. He was confined to his bed or three months, was not able to work for ine months, and had to use crutches several onths. His expenses for physician were $100, nd his time was worth $200 a month. Held, hat a verdict for plaintiff for $100 was manifestly inadequate.

Appeal from district court, Colorado county; T. H. Spooner. Judge.

Action by H. R. Michalke against the Galveston, Harrisburg & San Antonio Railway Company for personal injuries caused by defendant's negligence. From a judgment in favor of plaintiff' for $100, he appeals. Reversed.

Perry J. Lewis and Foard, Thompson & Townsend, for appellant. Brown, Lane & Jackson, for appellee.

GARRETT, C. J. This action was brought by H. R. Michalke to recover of the Galveston, Harrisburg & San Antonio Railway Company damages for personal injuries received by the plaintiff from being struck by a locomotive as he was crossing defendant's track at public crossing in the town of Weimar, Colorado county, while he was going to defendant's station to take the passenger train then past due. Plaintiff averred that the injuries complained of were caused by the negligence of the defendant in leaving cars on their side track, and in permitting structures to be built on its right of way, so as to obstruct the view of the track, and by running its train at a fast and unusual rate of speed, and in failing to give the usual alarm. Defendant pleaded that it was not liable for the injuries, because they resulted from the negligence of the plaintiff contributing thereto, in failing to use ordinary precaution in approaching and crossing the track; that he walked in front of the engine without looking or listening for the approach of the train which was then due; and that, by the exercise of due care, he could have heard and seen the train, and avoided the accident. It was alleged and proved that the plaintiff received severe injuries. He was considerably bruised and shocked, his ankle was broken, and he was confined to his bed for three months. He was not able to work for nine months, and had to use crutches for several months after he left his bed. He suffered from this and other injuries to his side and arm great pain for three months. Since his ankle has healed, there is a deformlty in his

foot, and he is a cripple for life. Expenses for physician and medicine amounted to $100. His time was worth $200 a month. The injuries here stated are not stated so great as the evidence would reasonably show them to be. The case was submitted to the jury upon the issues above indicated, and they returned a verdict in favor of the plaintiff for the sum of $100. Plaintiff made a motion for new trial,-that the verdict of the jury in assessing his damages at $100 is contrary to and unsupported by the uncontradicted evidence. The motion was overruled by the court, and plaintiff has appealed.

The verdict is manifestly wrong in the assessment of damages, and, unless the facts show that the plaintiff had no case which ought to have been submitted to a jury at all, the judgment of the court below will be reversed, and the cause remanded. In the consideration of the facts for this purpose, all conflicts in the evidence must be resolved in favor of the plaintiff, since he would have the right to have a jury pass upon them, and to find upon issues submitted with respect to negligence. Defendant's passenger station at Weimar is situated on the south side of its main track, which runs east and west. There is a side track just north of the main track, with a space of about 7 feet 4 inches between the nearest rails. On the south of the main track there is another side track, which diverges on the east, and passes to the south of the passenger station. About 80 feet east of the station there is a public street crossing over the tracks. At the time of the accident, the defendant's tracks were obstructed from view on the north side from beyond the crossing west to the east, for some distance, by houses and stock pens built along the right of way, and by cars standing on the north side track, both to the east and west of the crossing. with only room enough between them on the crossing for a wagon to pass. On the south side there stood a freight train. The engine had steam up, which was escaping with noise. It was raining, and the west-bound passenger train was due, and about a half hour late. Weimar is an incorporated town, of about 1,800 inhabitants. On the day of the accident, plaintiff had business at Schulenberg, the next station west of Weimar, and desired to take the train for that place, which was due about 11:30 a. m. He heard that the train was late, and at about 12 o'clock started from where he was, on the north side of the track, to go across by the usual and nearest way, as he testified, to see how late it was. As it was raining, he raised his umbrella, and trotted across the street, and walked across the side track between the cars, on the main track. Just as he stepped on the main track, he was struck by the locomotive of the train, and hurt. It was raining hard, and the wind was blowing from the northwest, to which direction he held the umbrella, which did not obstruct

his view. He did not stop, but, just before reaching the track, he listened, but did not hear the approaching train, nor the whistle blow, nor bell ring. Plaintiff looked west, and, just as he looked east, stepped on the track. He knew the train was expected from the east. The track coming into Weimar from the east is perfectly straight, and a person on the track looking east could see a train coming at a considerable distance. The train was running at about 25 or 30 miles an hour, and the whistle was not blown, nor the bell rung, as it came into the station. For the defense there was evidence that the usual alarm was given, and that the train was running at a slow rate of speed. In Railway Co. v. Bracken, 59 Tex. 71, cited by counsel for appellee, it was held that the evidence showed that the negligence of the deceased in attempting to cross the track in full view of the engine, which was backing along the track towards him, was the proximate cause of his death, and not the fact that the engine was being run backward; and the judgment of the court below was reversed, because there was no evidence to sustain it. The duty of a person about to step on a railroad track is stated in that case and authorities cited. "He must listen and look before attempting to cross, in order to avoid an approaching train, and not walk carelessly into the place of possible danger." There must be due care on the part of the plaintiff before the defendant will be held liable, although the defendant should itself be negligent. Due care on the part of a person about to cross a railway track at a public crossing is what is usually defined to be ordinary care, and would devolve upon the plaintiff the duty as announced in the Bracken Case. When negligence on the part of the defendant has been established, it would still be necessary for the plaintiff to show that he exercised such care in crossing the track as that no negligent act or omission on his part contributed directly to the injury. Railway Co. v. Ormond, 64 Tex. 489. Plaintiff testified that he looked and listened for the train; that he did not hear the train at all; that his view was obstructed, so that he could not see along the track until he passed between the cars on the crossing; and that he then looked first to the west, and, as he was about to look east, he was struck. His view was not obstructed by his umbrella, which he held to the northwest. The crossing was also an approach to defendant's passenger depot, which it should have kept open and unobstructed. Plaintiff testified that, if he had stopped and looked and listened, he could have avoided the injury; but the authorities in this state do not go so far as to require him, as a matter of law, to stop. Whether or not he ought to be required to do so would be, in connection with all the facts, a proper inquiry for the jury, but it would not be a proper subject even for a charge. Whether or not plaintiff

exercised due care under the circumstances should be submitted to the jury. We cannot assume that the jury, by its verdict, meant to find that the injury was the result of plaintiff's negligence. The court is of the opinion that the facts in evidence made it a question for the jury as to whether or not the plaintiff was guilty of such negligence that he ought not to recover. The judgment of the court below will be reversed, and the cause remanded. Reversed and remanded.

GULF, C. & S. F. R. CO. v. WELCH. (Court of Civil Appeals of Texas. June 14, 1894.)

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INJURIES AT RAILROAD CROSSING-INSTRUCTIONS. 1. In an action against a railroad pany for injuries received at a crossing, it is error to instruct, where the evidence is conflicting as to whether defendant gave the proper signals, that if defendant did everything in its power to stop the train, after discovering plaintiff, it is not liable.

2. It is error to instruct that defendant is liable if plaintiff used every precaution in approaching the crossing, as it leaves out of question defendant's negligence.

3. It is error to instruct that if, plaintiff being free from contributory negligence, defendant failed to give the proper signals, it is liable. as the jury should be required also to find that defendant's negligence caused the accident.

Appeal from Burleson county court; Thomas M. Hurt, Judge.

Action by George Welch against the Gulf, Colorado & Santa Fe Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

J. W. Terry and Chas. K. Lee, for appellant. S. G. Ragsdale and Hume & Kleberg, for appellee.

WILLIAMS, J. A freight train of appellant struck a wagon in which appellee was traveling, at the crossing of a public road, inflicting the injuries for which the recovery was had below. The negligence charged against appellant consisted of its failure to ring the bell and to blow the whistle as required by statute, in approaching the crossing. The defense was a denial of such negligence, and a charge of contributory negli gence on part of plaintiff, in getting upon the track without using proper precaution. If defendant complied with the statute, in giving the signal required, there was neither allegation nor proof by which it could be made liable for failing to use proper efforts, after discovering plaintiff, to avoid the collision.

Among other things, the court charged, at request of defendant, as follows: "The jury are instructed that, if they believe from the evidence that defendant's employes saw plaintiff approaching the track of defendant, they would have the right to presume that he would stop, and not attempt to cross in front of an approaching or backing train, and it

was only when the actions of plaintiff manifested an intention not to do so, but to cross the track, that the defendant's employes were required to stop the train to prevent a collision; and if the jury believes from the evidence that after the intention of said Welch, which may have been manifested by his actions to cross said track, became known to the defendant's employes, and that they did everything that was in their power to stop the train and avoid a collision, then you will find for defendant." After this had been given, the plaintiff asked the following instruction, which was also allowed: “(4) If the jury believe from the evidence that plaintiff, in approaching defendant's track, used that degree of care and prudence that a reasonably prudent man would ordinarily exercise, as heretofore defined, and that, whilst on said track, his wagon was struck and knocked off, as alleged by plaintiff, even although you should further believe that defendant's employes used every effort in their power to stop their train after they discovered plaintiff on the track. This charge is asked to be given in connection with charge No. 8, given for defendant, and is to be construed therewith." Neither of these instructions should have been given. The rule which was, it is presumed, intended to be laid down, had no application to the case; and, had it been applicable, the charge should have been so framed as not to mislead or confuse the jury in the consideration of the other issues. By the eighth charge the defendant is exempted from liability if, after its servants saw plaintiff's danger, they did everything in their power to stop the train, though they may have already failed both to sound the whistle or ring the bell; and, by the fourth charge, defendant is made liable, though it may have been guilty of no neglect of duty, if plaintiff exercised proper care in approaching the track. The last charge was not simply a correction of the error contained in the first, but announced a distinct ground of liability, without including all of the facts essential to constitute it. These charges had no reference to rules stated in the other instructions given, each of which assumed certain states of fact which would make defendant liable, or else sustain its defense; and the effect of the erroneous instructions was not, therefore, removed by such other charges. There was a conflict of evidence upon the question whether or not the defendant failed to give the proper signal, and the error was material.

In other instructions given for plaintiff, the jury, in effect, are told that if defendant failed to ring the bell or blow the whistle, and if plaintiff was free from contributory negligence, and the collision occurred, plaintiff was entitled to recover. These instructions were defective, in not requiring the jury to find, also, as a condition of defendant's liability, that its negligence caused the collision. It is unnecessary to say whether the

case was such as to require a reversal for this, if there were no other, error.

The charges as to the burden of proof might well be omitted on another trial, if the evidence should stand as the record now exhibits it. The facts were all before the jury, and the question whether or not they showed defendant to have been guilty of negligence, or plaintiff of contributory negligence, should have been left to the jury, for them to determine from all of the facts, without unnecessary instructions as to which party should furnish the evidence. For the error in giving the fourth instruction the judgment is reversed, and the cause remanded. Reversed and remanded.

CUNDIFF v. CORLEY.

(Court of Civil Appeals of Texas. June 14, 1894.)

RESCISSION OF SALE-NONPAYMENT OF PRICE-DEFENSES TENDER-VENDOR'S LIEN.

1. An action by an administrator to rescind his sale of a certain tract of the intestate's land, or to recover, in the alternative, on a note given for the purchase price, was brought 16 years after the sale. The land was by order of the court to have been sold on 12 months' time, the purchaser's note and a mortgage on the land being taken as security. Only the purchaser's note was taken, and this had not been paid. Held, that defendant might plead as a defense that the delay in the payment was caused by an agreement with plaintiff to include the note in a settlement of claims due defendant from the estate, and plead such claims in connection with the defense, though they could not have been set off in an action on the note.

2. Where in such case the defendant pays into court the purchase price, with interest, plaintiff cannot rescind the sale.

3. The fact that with a plea of tender into court there is also pleaded a general denial does not render the tender conditional.

4. A vendor's lien on land sold by an administrator is not lost by reason of a failure to take a mortgage or to recite such lien in the deed where the lien is acknowledged in the purchase money note.

5. Where one note is taken in payment for several parcels sold separately, in which it is recited that it is a "lien and mortgage" on the lands, there is merely a lien on each tract for the purchase price of such tract, and not for the amount of the note.

Appeal from district court, Angelina coun. ty; James T. Polley, Judge.

Action by William H. Cundiff, administrator, against James A. Corley. From a judgment for defendant, plaintiff appeals. Affirmed.

Carter & Lewright, for appellant. J. W. Madden, for appellee.

GARRETT, C. J. This action was brought April 26, 1893, by William H. Cundiff, as administrator of the estate of Jesse Duren, deceased, against James A. Corley, for the recovery of the Daniel F. Edwards one league of land situated in Angelina county; and in the alternative, if mistaken in his right to recover the land, to recover of the defendant on a promissory note which plain