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J. Harper, M. M. Harper, Mary A. Hanna, F. home or as a place of business to exercise J. Vesey, and J. B. Vesey recovered judg- the calling or business of the head of the ment against said Forsgard for $1,079.48, up- family; provided, also, that any temporary on each of which judgments execution was renting of the homestead shall not change the issued, placed in the hands of sheriff, and by character of the same when no other homehim levied upon the property described above. stead has been acquired." By this provision The plaintiffs, Forsgard and wife, claimed of the constitution the exemption is placed the lots as part of their homestead, and the upon the lots, and not upon the improve district judge issued a writ of injunction, en- ments. This is emphasized by the further joining the sale of the lots, which, upon trial provision that the value of improvements before the court, were found to be exempted, shall not be included, in determining the as part of the plaintiff's homestead, and the right. The use of the lot or lots impresses injunction was perpetuated. Upon appeal upon the land the homestead character. the court of civil appeals (25 S. W. 445) found Whatever is so attached to the land as to bethat so much of lot 5 as is covered by a one- come a part of it must partake of the charstory brick building was subject to forced acter of the land, and if the land is subject sale, and that all of that half of lot 5 in- to sale the improvements.upon it will be subvolved in the suit was part of the homestead, ject. If, however, the land cannot be sold, and exempted, but that two rooms on the neither can the structures built upon it as first floor of the building were not exempted, permanent buildings adapted to its use, and and decreed that these rooms be sold; dis- intended by the owner for such purposes. solving the injunction as to so much of lot 5 It would not be contended, if this lot were as was covered by the one-story brick build- not exempt from forced sale, that the sheriff ing, and as to the two rooms in the building could seize and sell the two rooms, under on lot 4. Under the findings of facts by the these executions, nor would it be asserted court of civil appeals, the judgment of that that a sale of the lot would not carry the court, as to the one-story brick and that part whole house. If the house, as a whole, be of lot 5, must be affirmed.

a part of the realty, as it evidently is, how The facts, as found by the court, with ref- can it be said that a portion of the house is erence to the half of lot 4, are, in substance, not a part of the land? And, if it be a part that lot 4 fronted on Bridge street 25 feet, of the lot, under what rule of procedure can with a two-story house upon it, covering the it be separated from the lot for the purposes entire front, and runing back 85 feet. Un- of seizure and sale under execution ? Let us der the entire house, running up to the front, suppose that the house should be destroyed was a cellar. The first floor above the cel- by fire. The purchasers of these rooms lar was divided into three rooms by running would not be entitled to participate in the a partition across the house 25 feet from the erection of another building upon the lot. front, and another partition dividing the The result of such a doctrine would be that front into two rooms fronting on the street. the land under the house would be protected The court of civil appeals finds that the en- by the constitution, but the use of a part of tire lot under the house is exempted, as home- it would not be. The purchaser of the two stead, by reason of its use; that the rear rooms would not dare, without the consent of room on the first floor and the second story the owner, to set foot on the soil, for if he are likewise exempted; but that the two did so he would be a trespasser; and the front rooms on the first floor are not exempt- owner of the soil upon which the house ed, they having been abandoned as home- stands would likewise be a trespasser, if he, stead, and rented out for other uses. The without consent, entered the two rooms which question presented is, can a part of a house rest upon the soil. This doctrine has been standing on a lot that is homestead be sub- asserted and acted upon in Iowa, under the jected to forced sale, under our constitution statutes of that state. McCormick v. Bishop, and laws? The house upon lot 5 was a fix- 28 Iowa, 239 In that case the lots and the ture, within the meaning of the law, and, as lower rooms were sold, and the upper rooms such, was a part of the land itself. A sale held to be homestead. It is evident that the of the land would carry the house, and every statutes of that state are very different in part of it. Hutchins v. Masterson, 46 Tex. their provisions from our constitution, or the 555; Sinker, Davis & Co. v. Comparet, 62 decision is not correct. The court say in that Tex. 476. The house, being attached to, and case that: “The owner might grant the right a part of, the realty, could not be seized and to use a part of the house, or he might sell sold separately from the land. Willis v. Mor- the lot, and reserve a use in a part of it,ris, 66 Tex. 628, 1 S. W. 799. The constitu- the building; and why is it that the like retion of this state (article 16, $ 51) defines an sult cannot be reached by forced sale?” The urba homestead in this language: “The reason is plain? The owner is not inhibited homestead in a city, town or village, shall by the constitution from disposing of the consist of lot or lots not to exceed in value homestead as he and his wife may deem $5,000 at the time of their designation as a best; but the officers of the law have no homestead without reference to the value of rights, by the process of courts, to enter the any improvements thereon; provided, that precincts of the homestead, to parcel out the the same shall be used for the purposes of a use and ownership of that which the constitution has exempted from the claims of cred- tion, prayed that, in the event the court itors and the powers of courts and officers. should be of opinion that the deed was in. In Wisconsin the supreme court has held tended only as a mortgage, they have judgthat no part of the house upon the lands ex- ment for the debt, and a decree foreclosing empted can be sold. One member of the the mortgage for its payment. To this the court dissented, but we think that the reason defendants pleaded that the debt alleged in of the law is with the majority of that court. the supplemental petition was barred by the Phelps y. Rooney, 9 Wis. 70.

statute of limitations. The case was tried The court of civil appeals erred in holding by a jury, who found that the deed was in that the two rooms in the house on lot 4 were fact a mortgage, and that the debt it was subject to forced sale, for which error the intended to secure was barred by limitajudgments of the district court and court of tion. Thereupon the court gave judgment civil appeals are reversed, and this court now for the defendant. The court of civil aprenders such judgment as the court of civil peals affirmed the judgment of the trial court. appeals should have rendered on the facts 23 S. W. 460. found by it. It is ordered that the injunction We have given the case a very patient and be dissolved as to so much of lot 5, block 2, deliberate consideration, and have concluded in the city of Waco, as is covered by the one- that the appeal was properly disposed of by story brick building, and the same is ad- the court of civil appeals upon all the points judged subject to sale under the executions presented. The conclusions of that court levied upon it, and that as to the remainder are ably supported by a well-considered and of said lot 5, and half of lots 4 and lots 10, elaborate opinion, and it would serve no use11, and 12, in said block 2, the said injunction ful purpose to review the question therein be, and the same is, made perpetual, and that discussed. I will say, however, that, if it the plaintiffs in error, S. J. Forsgard and F. were an open question in this court, I should G. Forsgard, recover of defendants in error, hesitate long before giving my assent to the and their sureties on their appeal bond, all rule laid down in Mann v. Falcon, 25 Tex. costs, and that this judgment be certified to 271. It seems to me that, when an absolute the district court for observance.

conveyance of land is made for the purpose of securing a debt merely, the grantee takes the legal title subject to the equitable right

of the grantor to recover the land upon payMCKEEN et al. v. JAMES et al. ment of the debt. Such being the right of (Supreme Court of Texas. June 28, 1894.) the parties, whatever the form of the action, TRESPASS TO TRY Title-DEFENSES-DEED MEANT in my opinion the grantor should not receive AS MORTGAGE.

the aid of a court of equity except upon con1. The defense that the deed under which

dition that he do equity; that is, that he pay plaintiff claims is a mortgage, and that the

the debt, whether barred by limitation or not. debt secured is barred by limitation, is available without tender of the amount of the debt. An examination of the authorities satisfies me Mann v. Falcon, 25 Tex. 276, followed. 23 S. that this the rul of decision in every state W. 400, affirmed. 2. The defense that the deed to plaintiff

in this Union except in this state and one was a mortgage, and that the debt is outlawed, other. But the doctrine announced in Mann is available to a subsequent purchaser from V. Falcon, supra, was reaffirmed by this the debtor's assignee in bankruptcy by con

court in Boggess v. Brownson, 59 Tex. 417, veyance subject to existing liens.

and perhaps in other cases. It has become Error from court of civil appeals of fourth a rule of property which is binding upon the supreme judicial district.

courts, and I fully concur in the proposition Trespass to try title by A. C. McKeen and

that it should be followed.

That a purothers against John H. James and others.

chaser from a mortgagor may, as a general Judgment for defendants affirmed on error rule, plead the statute of limitations to the in the court of civil appeals (23 S. W. 460). debt secured by the mortgage is settled in Plaintiffs bring error. Affirmed.

this court. Cason v. Chambers, 62 Tex. 305. Denman & Franklin, John Ireland, Shook

In this case, however, the mortgagor was & Vander Hoven, John A. & N. 0. Green, adjudged a bankrupt, and the land was sold and Fisher & Townes, for plaintiffs in error.

by his assignee in bankruptcy, subject to exSimpson & James, for defendants in error. isting liens. Whether this fact ought to

take the case out of the general rule or not GAINES, J. The plaintiffs in error, who we have had some doubt. We have referred were plaintiffs in the trial court, sought to the question back for argument and citation recover the land in controversy in an ordi- of authority, but no direct authority has nary action of trespass to try title. They been produced, nor have we found any. Not claim under a deed absolute upon its face, having found that an exception has ever been which the defendants, who claimed under recognized in such a case, we are of opinion a conveyance from the grantor's assignee in that the general rule ought to prevail. The bankruptcy, alleged to have been only a mort- judgment of the court of civil appeals and gage. The plaintiffs, in a supplemental peti- that of the trial court are affirmed.


cepting, the defendant says it (the petition) GULF, C. & S. F. RY. CO. v. PIERCE. states no facts that render it liable for the (Supreme Court of Texas. June 14, 1894.)

misconduct of J. A. Miller, or that it auNEGLIGENCE OF BRAKEMAS-AUTHORITY--Evi

thorized such conduct." The court overruled

the exception and general den urrer. DePlaintiff, a conductor on a passenger

fendant pleaded a general denial and special train, injured by jumping from his train, which

answer, which it is not necessary to notice. had run in on a side track, and was about to

Upon trial, judgment was rendered against collide with a freight train thereon, sued the company, on the theory that the switch was left the railroad company, which was affirmed by open through the negligence of M., a brakeman the court of civil appeals. A number of objecon the freight train, and that he was incompe- tions are urged against the judgment of the tent, to the knowledge of the company. Held, that evidence of a rule of the company that con

court of civil appeals, but, upon an inspecductors will be responsible for the proper adjust- tion of the record, we conclude that the judgment of switches used by them and their train- ment is correct; and the carefully-prepared men, except where switch tenders are stationed,

opinion of the chief justice of that court disand that whoever opens a switch shall remain at it till it is closed, and that conductors obeyed

poses of each objection in a satisfactory this rule by having brakemen adjust the manner, so that it is unnecessary for this switches, and that, at the time of the accident, court to add to what has been said. M. was asleep near the switch, was sufficient, in the absence of any evidence of there being a

The record shows that defendant intro switchman at the place, to show that he had duced in evidence one of its rules, which conbeen intrusted with the throwing of the switch. tains the following: “Conductors will be Error from court of civil appeals of second

held responsible for the proper adjustment supreme judicial district.

of the switches used by them and their trainAction by T. C. Pierce against the Gulf,

men, except where switch tenders are sta. Colorado & Santa Fe Railway Company. A

tioned. Running switches are strictly projudgment for plaintiff was affirmed by the hibited. Whoever opens a switch shall recourt of civil appeals (25 S. W. 1052), and

main at it until it is closed, unless relieved defendant brings error. Affirmed.

by some other competent employe." It is

plain that this rule required the trainmen Alexander & Clark and J. W. Terry, for

to adjust switches where there were no plaintiff in error. Stuart & Lewis, for de

switchmen stationed, and it is not shown fendant in error.

that there was a switchman at this station.

Conductors were held responsible; that is, reBROWN, J. J. A. Miller was in the em

quired to see that the trainmen obeyed inploy of the Gulf, Colorado & Santa Fe Rail- structions in the use of the switches. The way Company as a brakeman on a freight evidence, which was properly admitted, train which arrived at Wynnewood, Ind. T., shows how the order was executed; that is, and went in on the side track. It was Mil

that brakemen adjusted the switches at such ler's duty to adjust the switch for the main

stations. When the plaintiff jumped from track, but he failed to do so. Plaintiff,

the passenger train, he alighted on a man Pierce, was in the employ of the same com

!ying near the switch, whom he afterwards pany, as conductor on a passenger train recognized, and heard him called “Miller." which arrived at the same station on the

Miller was a brakeman on this train, and was same day, after the arrival of the freight

seen near the place of accident by others who train. The switch being thrown for the side

knew him, and there was but one man prestrack, the passenger train ran in on it, in- ent of that name,-at least, the evidence stead of keeping to the main track, as it shows no other. The conclusion cannot be should have done, and a collision occurred

resisted that Miller was discharging a duty between the passenger and freight trains. as brakeman, in throwing the switch, and Pierce, seeing that the collision was immi.

that he was, in obedience to the rule shown nent, jumped from the platform or steps of in evidence, remaining at his post, but by the passenger coach, and his leg was broken,

reason of his infirmity, of which the railroad which made amputation of the limb neces

company had notice, had fallen asleep, and sary. He sued the railroad company for failed to throw the switch for the main damages, alleging that Miller was in the em

track, which resulted in the injury to plainploy of the said railroad company as brake- tiff. There is no error in the judgment of man on the freight train, and that he negli- the district court or of the court of civil ap gently left the switch so as to run the pas- peals, and both judgments are affirmed. senger train on the side track, causing the collision and injury to the plaintiff. The petition also alleged that Miller was incompetent to perform the duties of brakeman,

TEXAS & N. 0. RY. CO. v. ECHOLS. and that his unfitness was known to the defendant. It was not definitely alleged that

(Supreme Court of Texas. June 14, 1894.) Miller was required by his employment to

MASTER AND SERVANT-PRESCRIBING RULES. adjust the switch. The railroad company in

A railroad company, having creosote

works for the treatment of ties, had the ties terposed a general demurrer and special ex

brought in on one track, and piled between it ception, in this language: "Specially ex- and another, by which they were taken to the works. Held, that the business was not of such should be secured. He recovered judgment a nature as to require the company to prescribe against the railroad company, which was afrules for those taking away the ties to leave the remnant of a pile in such condition that it

firmed by the court of civil appeals. The would not fall on employes unloading other ties. court of civil appeals found, as a conclusion Error from court of civil appeals of first su

from the evidence, that "the defendant had preme judicial district.

adopted no rules or precautions for the proAction by L. Echols against the Texas &

tection of the men unloading the cars against New Orleans Railway Company for personal

liability to injury from the falling of the reminjuries. A judgment for plaintiff was af

nant tiers of the stacks, and by which they firmed by the court of civil appeals (25 S.

would be left in a reasonably safe condiRe

tion." W. 1087), and defendant brings error. versed.

Plaintiff in error presents a number of ob

jections to the judgment, but we will considPerryman, Gillaspie & Bullitt, for plaintiff

er one only, as the others are either not well in error. Goldthwaite, Ewing & H. F. Ring,

taken or are embraced in the one considered. for defendant in error.

Defendant asked the court to give this charge

to the jury: “The evidence being insufficient BROWN, J. The Texas & New Orleans to warrant a verdict for the plaintiff, you Railway Company, jointly with other rail- will return a verdict for the defendant, the roads, owned and operated creosote works Texas & New Orleans Railroad Company." near the city of Houston, for the purpose of It was refused. There is no evidence of neg. treating ties. There was a large number of ligence on the part of the defendant, other ties in the yard, stacked between two tracks, than a failure to make rules to govern the and extending from near the one to near the hands as to what should be done to secure the other track. The south track was used to remnant of stacks. We must consider this carry the ties to the works from the stacks by case, under the findings of the court and the placing them on trucks or cars for that pur- manner of its presentation here, as if that pose, taking them from the stacks. The ties finding was fully sustained by the evidence. were in stacks about eight feet high, one tie Whether or not the evidence is sufficient to upon another. The ties, from bottom to top show a case in which the duty to make rules of the stack, were called a "tier," and each rested upon the defendant is a question of tier was about eight feet long and eight law for the court. If the facts raised that isinches wide. When the ties were brought sue, it should have been submitted to the into the yard for treatment, the cars were un- jury; otherwise it should not. When subloaded from the north track, and stacked, be- mitted to the jury, the reasonableness of such ginning near the south track, and extending regulations is a question for the jury. The back to a point within about four feet of the rule of law as to when it becomes the duty north track. There were two gangs of hands of the master to make rules for the safety of that worked at night removing the ties to the employes is well stated by Mr. Wood, in his works, beginning at the south track, and tak- work on Master and Servants, thus: “If a ing them back to the north track. The hands master is engaged in a complex business, that employed on the night before the injury oc- requires definite regulations for the safety curred removed all of a stack except about and protection of his employes, a failure to four or five tiers near to the north track, but adopt proper rules, as well as laxity in their left that remnant standing without bracing or enforcement, is negligence per se, and the esother security against falling over.

A gang

tablishment of defective or imperfect rules is of hands to which Echols belonged com- such negligence as renders the master remenced work to unload a car of ties on the sponsible for all injuries resulting therenorth track on the morning he was injured. from." Wood, Mast. & Serv. § 403; 3 Wood, Echols was employed on the 1st of March, Ry. Law, $ 382. This rule is quoted and apand was injured on the 3d of that month. He proved in Reagan v. Railway Co., 93 Mo. 348, had worked there for two or three months be- 6 S. W. 371, and in Morgan v. Iron Co. (N. Y. fore that time; that is, at a time previous to App.) 31 N. E. 234. This question has been this employment. Echols and his gang were before this court in the following cases: ordered to push a car down the north track to Railroad Co. v. Watts, 63 Tex. 552; Railroad an opening, and, a train following them, they Co. v. Smith, 76 Tex. 618, 13 S. W. 562; and walked on the side of the car to push it. Railroad Co. v. Hall, 78 Tex. 658, 14 S. W. When he (Echols) got opposite to the rem- 259. In the first case this court said: nant of the stack left by the night gang, it "Where the employe is engaged in a dangerfell towards him, and caught him between ous service, it is the duty of the master to use the car and the ties, breaking his leg. He all reasonable and recessary means to prosued the Texas & New Orleans Railway Com- tect him against any superadded danger that pany for damages, alleging, among other might be reasonably expected to arise from things, that it was negligent in failing to extrinsic causes; * for, having placed make and enforce rules to govern the gang its servants at labor upon these repair tracks, removing the ties to the works, in the per- it was incumbent upon the company to use formance of their work, and especially as to due care in protecting them against danger tue manner in which remnants of stacks arising from these extrinsic causes." In the other cases the court followed Railroad Co. v. son for the owner of the wood yard to make Watts. It will be seen that the rule laid rules for the performance of this duty would down is substantially the same as quoted arise out of this state of facts. Indeed, from Wood on Master and Servants. In there is scarcely an employment in which laRailroad Co. v. Watts, 63 Tex. 552, the in- bor finds remuneration that is not attended jured party was engaged in repairing cars on by some dangers, arising out of the negli. a repair track, standing between the cars, gence of coemployes. The rule is a sound when an engine backed down against the car and salutary one, when applied to cases inat which he was employed, injuring him. volving extra risks; but it would be burdenRailroad Co. v. Hall was a similar case; and some to all characters of ordinary business if in Railroad Co. v. Smith the plaintiff was on extended beyond the necessity out of which it . a train, on the road, and, for want of orders, originated. There was no evidence in this the train collided with another train, whereby case of negligence on the part of the railroad he was injured. In each of these cases the company, and the court erred in not giving servants were engaged in hazardous employ. the charge requested, for which error the ments, in which they were exposed to dan- judgments of the district court and court of gers arising from the acts of other employes, civil appeals are reversed, and the cause reby which they were liable to injury, unless manded to the district court for trial. some system were adopted by which such employes would be warned of the approach of danger. In Abel v. President, etc., 103 N. Y.

SIMMONS HARDWARE CO. v. DAVIS et al. 581, 9 N. E. 325; Sheehan v. Railroad Co., 91

(Supreme Court of Texas. June 14, 1894.) N. Y. 332; Railroad Co. v. Lavalley, 36 Ohio

TRESPASS TO TRY TITLE-Evidence. St. 221; Reagan v. Railroad Co., 93 Mo. 318, 6 S. W. 371 (quoted above); Morgan v. Iron

Where in trespass to try title it is agreed

that both parties claim from a common grantor, Co. (N. Y. App.) 31 N. E. 231; and Corcoran and plaintiff shows a title in himself under an v. Railroad Co., 126 N. Y. 673, 27 N. E. 1022, execution sale against such grantor, he shows --the facts showed that the business in which

a prima facie right of recovery, and he is not

also required to show the nature of defendant's the servants were engaged was of a hazard

title, and the falsity of it. 27 S. W. 426, reous nature. In all of these cases the same versed. doctrine is announced.

Error from court of civil appeals of fifth We have carefully examined the authorities,

supreme judicial district, and find no support for the proposition that

Action by Simmons Hardware Company in a business which involves no exercise of

against N. A. Davis and others. From a peculiar skill, in which there is in use no

judgment of the court of civil appeals afdangerous machinery, or that in itself does

firming the judgment of the district court not involve extra hazard to the servant, an

plaintiff brings error. Reversed. employer is required to make and enforce rules for the performance of the work. In

Morris & Crow and W. R. Heath, for plainthis case the work to be done was of that

tiff in error. E. A. King, for defendants in character which could be performed and understood by any laborer of common intelligence. In its performance there was no dan- GAINES, J. This was an action of tresger greater than attends any work commonly pass to try title, brought by the plaintiff in done in the ordinary avocations of life. The error against the defendants in error. The reason for the rule requiring of the master judgment of the trial court was in favor of the precaution of prescribing regulations for the defendants, and it was affirmed by the the discharge of such duties does not exist court of civil appeals. here, and therefore the rule does not apply to It was agreed between the parties that this case. The same requirements apply both claimed under one L. G. Davis, and to all employers,-railroads, manufacturers, that he was the common source of title. Upmerchants, farmers,-and in fact in every on the trial, the plaintiff introduced in evi. branch of business, when the business is such dence a writ of attachment in its favor that the danger to the servant exists by rea- against L. G. Davis, together with a levy on son of the very nature of the service to be the land in controversy as his property; a performed; and it applies to neither when judgment in the attachment suit against the that danger may not be reasonably antici- defendant therein, foreclosing the lien of the pated on account of the character of the attachment on the land, and ordering it to work. Suppose that a citizen of the city of be sold for the satisfaction of the judgment; Houston had been running a wood yard, with the order of sale in pursuance of that decree, hands employed hauling and stacking cord with the sheriff's return, showing that he wood, and at the same time other hands tak- had sold the land under the order of sale ing down the stacks of wood, and delivering and that the plaintiff had become the purit to customers. The same danger would ex- chaser; and a sheriff's deed, conveying the ist as in this case,—that a stack of woodland in accordance with the sale. The plaineight feet high, left unsecured, with a narrow tiff then rested, and the defendants offered base, might fall upon one passing, in dis- no evidence. The court then directed a ver. charge of a duty, in the yard. The same rea- | dict for the defendant, which was according,


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