J. Harper, M. M. Harper, Mary A. Hanna, F. J. Vesey, and J. B. Vesey recovered judgment against said Forsgard for $1,079.48, upon each of which judgments execution was issued, placed in the hands of sheriff, and by him levied upon the property described above. The plaintiffs, Forsgard and wife, claimed the lots as part of their homestead, and the district judge issued a writ of injunction, enjoining the sale of the lots, which, upon trial before the court, were found to be exempted, as part of the plaintiff's homestead, and the injunction was perpetuated. Upon appeal the court of civil appeals (25 S. W. 445) found that so much of lot 5 as is covered by a onestory brick building was subject to forced sale, and that all of that half of lot 5 involved in the suit was part of the homestead, and exempted, but that two rooms on the first floor of the building were not exempted, and decreed that these rooms be sold; dissolving the injunction as to so much of lot 5 as was covered by the one-story brick building, and as to the two rooms in the building on lot 4. Under the findings of facts by the court of civil appeals, the judgment of that court, as to the one-story brick and that part of lot 5, must be affirmed.

The

The facts, as found by the court, with reference to the half of lot 4, are, in substance, that lot 4 fronted on Bridge street 25 feet, with a two-story house upon it, covering the entire front, and runing back 85 feet. Under the entire house, running up to the front, was a cellar. The first floor above the cellar was divided into three rooms by running a partition across the house 25 feet from the front, and another partition dividing the front into two rooms fronting on the street. The court of civil appeals finds that the entire lot under the house is exempted, as homestead, by reason of its use; that the rear room on the first floor and the second story are likewise exempted; but that the two front rooms on the first floor are not exempted, they having been abandoned as homestead, and rented out for other uses. question presented is, can a part of a house standing on a lot that is homestead be subjected to forced sale, under our constitution and laws? The house upon lot 5 was a fixture, within the meaning of the law, and, as such, was a part of the land itself. A sale of the land would carry the house, and every part of it. Hutchins v. Masterson, 46 Tex. 555; Sinker, Davis & Co. v. Comparet, 62 Tex. 476. The house, being attached to, and a part of, the realty, could not be seized and sold separately from the land. Willis v. Morris, 66 Tex. 628, 1 S. W. 799. The constitution of this state (article 16, § 51) defines an urban homestead in this language: "The homestead in a city, town or village, shall consist of lot or lots not to exceed in value $5,000 at the time of their designation as a homestead without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a

home or as a place of business to exercise the calling or business of the head of the family; provided, also, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired." By this provision of the constitution the exemption is placed upon the lots, and not upon the improve ments. This is emphasized by the further provision that the value of improvements shall not be included, in determining the right. The use of the lot or lots impresses upon the land the homestead character. Whatever is so attached to the land as to become a part of it must partake of the character of the land, and if the land is subject to sale the improvements upon it will be subject. If, however, the land cannot be sold, neither can the structures built upon it as permanent buildings adapted to its use, and intended by the owner for such purposes. It would not be contended, if this lot were not exempt from forced sale, that the sheriff could seize and sell the two rooms, under these executions, nor would it be asserted that a sale of the lot would not carry the whole house. If the house, as a whole, be a part of the realty, as it evidently is, how can it be said that a portion of the house is not a part of the land? And, if it be a part of the lot, under what rule of procedure can it be separated from the lot for the purposes of seizure and sale under execution? Let us suppose that the house should be destroyed by fire. The purchasers of these rooms would not be entitled to participate in the erection of another building upon the lot. The result of such a doctrine would be that the land under the house would be protected by the constitution, but the use of a part of it would not be. The purchaser of the two rooms would not dare, without the consent of the owner, to set foot on the soil, for if he did so he would be a trespasser; and the owner of the soil upon which the house stands would likewise be a trespasser, if he, without consent, entered the two rooms which rest upon the soil. This doctrine has been asserted and acted upon in Iowa, under the statutes of that state. McCormick v. Bishop, 28 Iowa, 239. In that case the lots and the lower rooms were sold, and the upper rooms held to be homestead. It is evident that the statutes of that state are very different in their provisions from our constitution, or the decision is not correct. The court say in that case that: "The owner might grant the right to use a part of the house, or he might sell the lot, and reserve a use in a part of it,the building; and why is it that the like result cannot be reached by forced sale?" The reason is plain? The owner is not inhibited by the constitution from disposing of the homestead as he and his wife may deem best; but the officers of the law have no rights, by the process of courts, to enter the precincts of the homestead, to parcel out the use and ownership of that which the consti

tution has exempted from the claims of creditors and the powers of courts and officers. In Wisconsin the supreme court has held that no part of the house upon the lands exempted can be sold. One member of the court dissented, but we think that the reason of the law is with the majority of that court. Phelps v. Rooney, 9 Wis. 70.

The court of civil appeals erred in holding that the two rooms in the house on lot 4 were subject to forced sale, for which error the judgments of the district court and court of civil appeals are reversed, and this court now renders such judgment as the court of civil appeals should have rendered on the facts found by it. It is ordered that the injunction be dissolved as to so much of lot 5, block 2, in the city of Waco, as is covered by the onestory brick building, and the same is adjudged subject to sale under the executions levied upon it, and that as to the remainder of said lot 5, and half of lots 4 and lots 10, 11, and 12, in said block 2, the said injunction be, and the same is, made perpetual, and that the plaintiffs in error, S. J. Forsgard and F. G. Forsgard, recover of defendants in error, and their sureties on their appeal bond, all costs, and that this judgment be certified to the district court for observance.

MCKEEN et al. v. JAMES et al. (Supreme Court of Texas. June 28, 1894.) TRESPASS TO TRY TITLE-DEFENSES-DEED MEANT AS MORTGAGE.

1. The defense that the deed under which plaintiff claims is a mortgage, and that the debt secured is barred by limitation, is available without tender of the amount of the debt. Mann v. Falcon, 25 Tex. 276, followed. 23 S. W. 460, affirmed.

2. The defense that the deed to plaintiff was a mortgage, and that the debt is outlawed, is available to a subsequent purchaser from the debtor's assignee in bankruptcy by conveyance subject to existing liens.

Error from court of civil appeals of fourth supreme judicial district.

Trespass to try title by A. C. McKeen and others against John H. James and others. Judgment for defendants affirmed on error in the court of civil appeals (23 S. W. 460). Plaintiffs bring error. Affirmed.

Denman & Franklin, John Ireland, Shook & Vander Hoven, John A. & N. O. Green, and Fisher & Townes, for plaintiffs in error. Simpson & James, for defendants in error.

GAINES, J. The plaintiffs in error, who were plaintiffs in the trial court, sought to recover the land in controversy in an ordinary action of trespass to try title. They claim under a deed absolute upon its face, which the defendants, who claimed under a conveyance from the grantor's assignee in bankruptcy, alleged to have been only a mortgage. The plaintiffs, in a supplemental peti

tion, prayed that, in the event the court should be of opinion that the deed was intended only as a mortgage, they have judgment for the debt, and a decree foreclosing the mortgage for its payment. To this the defendants pleaded that the debt alleged in the supplemental petition was barred by the statute of limitations. The case was tried by a jury, who found that the deed was in fact a mortgage, and that the debt it was intended to secure was barred by limitation. Thereupon the court gave judgment for the defendant. The court of civil appeals affirmed the judgment of the trial court. 23 S. W. 460.

We have given the case a very patient and deliberate consideration, and have concluded that the appeal was properly disposed of by the court of civil appeals upon all the points presented. The conclusions of that court are ably supported by a well-considered and elaborate opinion, and it would serve no useful purpose to review the question therein discussed. I will say, however, that, if it were an open question in this court, I should hesitate long before giving my assent to the rule laid down in Mann v. Falcon, 25 Tex. 271. It seems to me that, when an absolute 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 payment of the debt. Such being the right of the parties, whatever the form of the action, in my opinion the grantor should not receive the aid of a court of equity except upon condition that he do equity; that is, that he pay the debt, whether barred by limitation or not. An examination of the authorities satisfies me that this is the rule of decision in every state in this Union except in this state and one other. But the doctrine announced in Mann v. Falcon, supra, was reaffirmed by this court in Boggess v. Brownson, 59 Tex. 417, and perhaps in other cases. It has become a rule of property which is binding upon the courts, and I fully concur in the proposition that it should be followed. That a purchaser from a mortgagor may, as a general rule, plead the statute of limitations to the debt secured by the mortgage is settled in this court. Cason v. Chambers, 62 Tex. 305. In this case, however, the mortgagor was adjudged a bankrupt, and the land was sold by his assignee in bankruptcy, subject to existing liens. Whether this fact ought to take the case out of the general rule or not we have had some doubt. We have referred the question back for argument and citation of authority, but no direct authority has been produced, nor have we found any. Not having found that an exception has ever been recognized in such a case, we are of opinion that the general rule ought to prevail. The judgment of the court of civil appeals and that of the trial court are affirmed.

GULF, C. & S. F. RY. CO. v. PIERCE. (Supreme Court of Texas. June 14, 1894.) NEGLIGENCE OF BRAKEMAN-AUTHORITY--EVI

DENCE.

Plaintiff, a conductor on a passenger train, injured by jumping from his train, which had run in on a side track, and was about to collide with a freight train thereon, sued the company, on the theory that the switch was left open through the negligence of M., a brakeman on the freight train, and that he was incompetent, to the knowledge of the company. Heid, that evidence of a rule of the company that conductors will be responsible for the proper adjustment of switches used by them and their trainmen, except where switch tenders are stationed, and that whoever opens a switch shall remain at it till it is closed, and that conductors obeyed this rule by having brakemen adjust the switches, and that, at the time of the accident, M. was asleep near the switch, was sufficient, in the absence of any evidence of there being a switchman at the place, to show that he had been intrusted with the throwing of the switch.

Error from court of civil appeals of second supreme judicial district.

Action by T. C. Pierce against the Gulf, Colorado & Santa Fe Railway Company. A judgment for plaintiff was affirmed by the court of civil appeals (25 S. W. 1052), and defendant brings error. Affirmed.

Alexander & Clark and J. W. Terry, for plaintiff in error. Stuart & Lewis, for defendant in error.

BROWN, J. J. A. Miller was in the employ of the Gulf, Colorado & Santa Fe Railway Company as a brakeman on a freight train which arrived at Wynnewood, Ind. T., and went in on the side track. It was Miller's duty to adjust the switch for the main track, but he failed to do so. Plaintiff, Pierce, was in the employ of the same company, as conductor on a passenger train which arrived at the same station on the same day, after the arrival of the freight train. The switch being thrown for the side track, the passenger train ran in on it, instead of keeping to the main track, as it should have done, and a collision occurred between the passenger and freight trains. Pierce, seeing that the collision was imminent, jumped from the platform or steps of the passenger coach, and his leg was broken, which made amputation of the limb necessary. He sued the railroad company for damages, alleging that Miller was in the employ of the said railroad company as brakeman on the freight train, and that he negligently left the switch so as to run the passenger 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, and that his unfitness was known to the defendant. It was not definitely alleged that Miller was required by his employment to adjust the switch. The railroad company interposed a general demurrer and special exception, in this language: "Specially ex

cepting, the defendant says it [the petition] states no facts that render it liable for the misconduct of J. A. Miller, or that it authorized such conduct." The court overruled the exception and general demurrer. Defendant pleaded a general denial and special answer, which it is not necessary to notice. Upon trial, judgment was rendered against the railroad company, which was affirmed by the court of civil appeals. A number of objections are urged against the judgment of the court of civil appeals, but, upon an inspection of the record, we conclude that the judgment is correct; and the carefully-prepared opinion of the chief justice of that court disposes of each objection in a satisfactory manner, so that it is unnecessary for this court to add to what has been said.

The record shows that defendant introduced in evidence one of its rules, which contains the following: "Conductors will be held responsible for the proper adjustment of the switches used by them and their trainmen, except where switch tenders are stationed. Running switches are strictly prohibited.

Whoever opens a switch shall remain at it until it is closed, unless relieved by some other competent employe." It is plain that this rule required the trainmen to adjust switches where there were no switchmen stationed, and it is not shown that there was a switchman at this station. Conductors were held responsible; that is, required to see that the trainmen obeyed instructions in the use of the switches. The evidence, which was properly admitted, shows how the order was executed; that is, that brakemen adjusted the switches at such stations. When the plaintiff jumped from the passenger train, he alighted on a man lying near the switch, whom he afterwards recognized, and heard him called "Miller." Miller was a brakeman on this train, and was seen near the place of accident by others who knew him, and there was but one man present of that name,-at least, the evidence shows no other. The conclusion cannot be resisted that Miller was discharging a duty as brakeman, in throwing the switch, and that he was, in obedience to the rule shown in evidence, remaining at his post, but by reason of his infirmity, of which the railroad company had notice, had fallen asleep, and failed to throw the switch for the main track, which resulted in the injury to plaintiff.

There is no error in the judgment of the district court or of the court of civil ap peals, and both judgments are affirmed.

TEXAS & N. O. RY. CO. v. ECHOLS. (Supreme Court of Texas. June 14, 1894.) MASTER AND SERVANT-PRESCRIBING RULES.

A railroad company, having creosote works for the treatment of ties, had the ties brought in on one track, and piled between it and another, by which they were taken to the

works. Held, that the business was not of such a nature as to require the company to prescribe rules for those taking away the ties to leave the remnant of a pile in such condition that it would not fall on employes unloading other ties. Error from court of civil appeals of first supreme judicial district.

Action by L. Echols against the Texas & New Orleans Railway Company for personal injuries. A judgment for plaintiff was affirmed by the court of civil appeals (25 S. W. 1087), and defendant brings error. Reversed.

Perryman, Gillaspie & Bullitt, for plaintiff in error. Goldthwaite, Ewing & H. F. Ring, for defendant in error.

BROWN, J. The Texas & New Orleans Railway Company, jointly with other railroads, owned and operated creosote works near the city of Houston, for the purpose of treating ties. There was a large number of ties in the yard, stacked between two tracks, and extending from near the one to near the other track. The south track was used to carry the ties to the works from the stacks by placing them on trucks or cars for that purpose, taking them from the stacks. The ties were in stacks about eight feet high, one tie upon another. The ties, from bottom to top of the stack, were called a "tier," and each tier was about eight feet long and eight inches wide. When the ties were brought into the yard for treatment, the cars were unloaded from the north track, and stacked, beginning near the south track, and extending back to a point within about four feet of the north track. There were two gangs of hands that worked at night removing the ties to the works, beginning at the south track, and taking them back to the north track. The hands employed on the night before the injury occurred removed all of a stack except about four or five tiers near to the north track, but left that remnant standing without bracing or other security against falling over. A gang of hands to which Echols belonged commenced work to unload a car of ties on the north track on the morning he was injured. Echols was employed on the 1st of March, and was injured on the 3d of that month. He had worked there for two or three months before that time; that is, at a time previous to this employment. Echols and his gang were ordered to push a car down the north track to an opening, and, a train following them, they walked on the side of the car to push it. When he (Echols) got opposite to the remnant of the stack left by the night gang, it fell towards him, and caught him between the car and the ties, breaking his leg. He sued the Texas & New Orleans Railway Company for damages, alleging, among other things, that it was negligent in failing to make and enforce rules to govern the gang removing the ties to the works, in the performance of their work, and especially as to the manner in which remnants of stacks

should be secured. He recovered judgment against the railroad company, which was affirmed by the court of civil appeals. The court of civil appeals found, as a conclusion from the evidence, that "the defendant had adopted no rules or precautions for the protection of the men unloading the cars against liability to injury from the falling of the remnant tiers of the stacks, and by which they would be left in a reasonably safe condition."

Plaintiff in error presents a number of objections to the judgment, but we will consider one only, as the others are either not well taken or are embraced in the one considered. Defendant asked the court to give this charge to the jury: "The evidence being insufficient to warrant a verdict for the plaintiff, you will return a verdict for the defendant, the Texas & New Orleans Railroad Company." It was refused. There is no evidence of negligence on the part of the defendant, other than a failure to make rules to govern the hands as to what should be done to secure the remnant of stacks. We must consider this case, under the findings of the court and the manner of its presentation here, as if that finding was fully sustained by the evidence. Whether or not the evidence is sufficient to show a case in which the duty to make rules rested upon the defendant is a question of law for the court. If the facts raised that issue, it should have been submitted to the jury; otherwise it should not. When submitted to the jury, the reasonableness of such regulations is a question for the jury. The rule of law as to when it becomes the duty of the master to make rules for the safety of employes is well stated by Mr. Wood, in his work on Master and Servants, thus: "If a master is engaged in a complex business, that requires definite regulations for the safety and protection of his employes, a failure to adopt proper rules, as well as laxity in their enforcement, is negligence per se, and the establishment of defective or imperfect rules is such negligence as renders the master responsible for all injuries resulting therefrom." Wood, Mast. & Serv. § 403; 3 Wood, Ry. Law, § 382. This rule is quoted and approved in Reagan v. Railway Co., 93 Mo. 348, 6 S. W. 371, and in Morgan v. Iron Co. (N. Y. App.) 31 N. E. 234. This question has been before this court in the following cases: Railroad Co. v. Watts, 63 Tex. 552; Railroad Co. v. Smith, 76 Tex. 618, 13 S. W. 562; and Railroad Co. v. Hall, 78 Tex. 658, 14 S. W. 259. In the first case this court said: "Where the employe is engaged in a dangerous service, it is the duty of the master to use all reasonable and recessary means to protect him against any superadded danger that might be reasonably expected to arise from extrinsic causes; * for, having placed

its servants at labor upon these repair tracks, it was incumbent upon the company to use due care in protecting them against danger arising from these extrinsic causes." In the

other cases the court followed Railroad Co. v. Watts. It will be seen that the rule laid down is substantially the same as quoted from Wood on Master and Servants. In Railroad Co. v. Watts, 63 Tex. 552, the injured party was engaged in repairing cars on a repair track, standing between the cars, when an engine backed down against the car at which he was employed, injuring him. Railroad Co. v. Hall was a similar case; and in Railroad Co. v. Smith the plaintiff was on a train, on the road, and, for want of orders, the train collided with another train, whereby he was injured. In each of these cases the servants were engaged in hazardous employments, in which they were exposed to dangers arising from the acts of other employes, by which they were liable to injury, unless some system were adopted by which such employes would be warned of the approach of danger. In Abel v. President, etc., 103 N. Y. 581, 9 N. E. 325; Sheehan v. Railroad Co., 91 N. Y. 332; Railroad Co. v. Lavalley, 36 Ohio St. 221; Reagan v. Railroad Co., 93 Mo. 348, 6 S. W. 371 (quoted above); Morgan v. Iron Co. (N. Y. App.) 31 N. E. 234; and Corcoran v. Railroad Co., 126 N. Y. 673, 27 N. E. 1022, -the facts showed that the business in which the servants were engaged was of a hazardous nature. In all of these cases the same doctrine is announced.

We have carefully examined the authorities, and find no support for the proposition that in a business which involves no exercise of peculiar skill, in which there is in use no dangerous machinery, or that in itself does not involve extra hazard to the servant, an employer is required to make and enforce rules for the performance of the work. In this case the work to be done was of that character which could be performed and understood by any laborer of common intelligence. In its performance there was no danger greater than attends any work commonly done in the ordinary avocations of life. The reason for the rule requiring of the master the precaution of prescribing regulations for the discharge of such duties does not exist here, and therefore the rule does not apply to this case. The same requirements apply to all employers,-railroads, manufacturers, merchants, farmers,-and in fact in every branch of business, when the business is such that the danger to the servant exists by reason of the very nature of the service to be performed; and it applies to neither when that danger may not be reasonably anticipated on account of the character of the work. Suppose that a citizen of the city of Houston had been running a wood yard, with hands employed hauling and stacking cord wood, and at the same time other hands taking down the stacks of wood, and delivering it to customers. The same danger would exist as in this case,-that a stack of wood eight feet high, left unsecured, with a narrow base, might fall upon one passing, in discharge of a duty, in the yard. The same rea

son for the owner of the wood yard to make rules for the performance of this duty would arise out of this state of facts. Indeed, there is scarcely an employment in which labor finds remuneration that is not attended by some dangers, arising out of the negli gence of coemployes. The rule is a sound and salutary one, when applied to cases involving extra risks; but it would be burdensome to all characters of ordinary business if extended beyond the necessity out of which it. originated. There was no evidence in this case of negligence on the part of the railroad company, and the court erred in not giving the charge requested, for which error the judgments of the district court and court of civil appeals are reversed, and the cause remanded to the district court for trial.

SIMMONS HARDWARE CO. v. DAVIS et al. (Supreme Court of Texas. June 14, 1894.) TRESPASS TO TRY TITLE-EVIDENCE.

Where in trespass to try title it is agreed that both parties claim from a common grantor, and plaintiff shows a title in himself under an execution sale against such grantor, he shows a prima facie right of recovery, and he is not also required to show the nature of defendant's title, and the falsity of it. 27 S. W. 426, reversed.

Error from court of civil appeals of fifth supreme judicial district.

Action by Simmons Hardware Company against N. A. Davis and others. From a judgment of the court of civil appeals affirming the judgment of the district court plaintiff brings error. Reversed.

Morris & Crow and W. R. Heath, for plaintiff in error. E. A. King, for defendants in

error.

GAINES, J. This was an action of trespass to try title, brought by the plaintiff in error against the defendants in error. The judgment of the trial court was in favor of the defendants, and it was affirmed by the court of civil appeals.

It was agreed between the parties that both claimed under one L. G. Davis, and that he was the common source of title. Upon the trial, the plaintiff introduced in evidence a writ of attachment in its favor against L. G. Davis, together with a levy on the land in controversy as his property; a judgment in the attachment suit against the defendant therein, foreclosing the lien of the attachment on the land, and ordering it to be sold for the satisfaction of the judgment; the order of sale in pursuance of that decree, with the sheriff's return, showing that he had sold the land under the order of sale and that the plaintiff had become the purchaser; and a sheriff's deed, conveying the land in accordance with the sale. tiff then rested, and the defendants offered no evidence. The court then directed a verdict for the defendant, which was according

The plain