exist, it can be seasonably remedied; but in cases in which the objection to the pleading is not disclosed until the evidence is offered, or the judgment is about to be rendered, it should be overruled, unless there be found to be a total absence of averment upon the point. In this case the petition contains a distinct allegation that this lot was the homestead of Wells at the time of its purchase by appellant on the 1st day of August, 1892, and after stating the issuance and levy of the execution on the 21st day of July, 1892, contains the further general allegation "that, by the issuance and levy of said execution as aforesaid, defendants herein attempted to fasten a lien upon the homestead of B. C. Wells, and that said homestead was exempt, under the laws of the state of Texas, from forced sale, and that said execution, in so far as it attempts to create a lien on said homestead property, is null and void, and of no force or effect." We think this can only be treated as a defective averment that the property was exempt at the date of the levy of the execution, and not as an entire absence of allegation, and that the court therefore erred in rendering judgment in favor of appellees upon the ground above stated.

The next question we are to decide is as to whether or not the lot in controversy had become the homestead of B. C. Wells previous to the death of his wife. It seems that Wells purchased this property in January, 1890, at which time it was improved and occupied under a lease which did not expire until March, 1891. At the time of this purchase, Wells' wife was living, but died in October following. He also had living with him an orphan boy, Claude Walker, whose age is not given in the record, whom he had taken to raise upon the death of his parents; but it does not appear whether he had regularly adopted him as his heir, in compliance with our statute, or not. The only evidence as to the designation of this property as a homestead is the testimony of Wells himself, copied in our conclusions of fact. It will be observed that, while this witness in one place says he made this purchase "for a homestead," he nowhere says this was known to any one but himself; it not even appearing that his wife was aware of his intention in this regard, or concurred therein, during her life. The record is also silent as to whether or not the witness owned another place upon which he lived at the date of this purchase, or during the time that intervened before he took actual possession. The court below found against the homestead right. The burden was upon appellant to establish the exemption. It has been repeatedly held that, while intention is the most important element in the designation of a homestead, it alone is not sufficient to fix this character upon a new place, but in order to secure the exemption this intention must be followed with such acts of preparation for

occupancy as to clearly evidence the intended use. This question is discussed at length, with a review of the authorities, in Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033. It is true these acts of preparation have been dispensed with, where the head of a family who has no home purchases improved property already under lease, with the avowed intention of making it his place of residence, and, with his family, actually does this as soon as the lease expires. Gardner v. Douglass, 64 Tex. 78. But this does not apply where the purchaser already owns a place upon which he is living. In such case there must be an abandonment of the old in order to the acquisition of a new homestead. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177. We are aware of no case in which it has been held that undisclosed intention alone is sufficient to fix the homestead character upon a new place, even though it be in the possession of a tenant, in the absence of evidence that the claimant was without another home. If Wells really owned a homestead where he lived during the life of his wife, it is clear from the decision in Archibald v. Jacobs that character did not attach to the lot in controversy during that time; and, the burden being upon appellant, he should have shown affirmatively the necessary facts to sustain the exemption claimed. We therefore conclude that the evidence is not sufficient to authorize us to hold that this place had become the homestead of Mr. Wells previous to the death of his wife, especially in view of the fact that this purchase was never followed by an actual residence of the family thereon.

The next question is, did this lot become the homestead of Wells by reason of his moving on it after the death of his wife, and continuing to make his home there with Claude Walker, under the circumstances hereinbefore set forth? We think not. It is not by any means an easy task to define a "family," within the meaning of our constitution creating this exemption; but we believe the best-considered cases in this state, in the absence of a wife, require either a legal or moral obligation on the part of the one claiming the exemption to support the others for whom it is claimed. Roco v. Green, 50 Tex. 489; Lane v. Philips, 69 Tex. 240, 6 S. W. 610; Howard v. Marshall, 48 Tex. 477; Whitehead v. Nickelson, Id. 517; Barry v. Hale, 2 Tex. Civ. App. 668, 21 S. W. 783. We believe it would not be safe for us, from the meager statements contained in this record, to conclude that. Wells had adopted the boy referred to in compliance with the forms prescribed by our statute, and clearly there is no evidence that he had ever been apprenticed to him. The case must therefore be treated as an ordinary one where a single man has a boy living with him, whom he has taken to raise through dictates of kindness or self-interest, but to whom he is under no obligation, either legal or moral. That this

to be known as the county of Montague." Act July 9, 1879 (defining the boundary lines of Montague): "Beginning 6 miles west of the northeast corner of Wise county; thence west with the north line of Wise and Jack counties to a point 4 miles west of the northeast corner of Jack county; thence due north to Red river; thence down said river with its meanders to a point due north of the beginning; thence due south to the place of be ginning."

The purported statement of facts inserted in the record seems to have been filed after the adjournment of court. We find no order authorizing such filing, and we, therefore, are required to ignore this paper. Consequently, also, we adopt the conclusions of fact found by the trial court, as follows: "(1) After the organization of Wise county, in 1856, L. E. Camp was duly appointed by the county court of Wise county to run out and mark the lines of said county, and he did so, and located the northeast corner of Wise county one mile north of the northwest corner of Denton county, and then ran and marked as required by law the north line of Wise county. The north line of Wise county was not run due west, being a little north of west. The report of said Camp was made November 17, 1856, and was approved by the county court of Wise county, and was recorded on the records of said county. (2) It does not appear that any one representing Cooke county (from a portion of the territory of which Wise was made) was with Camp at the time the north line of Wise county was run. (3) The officials of Wise county and of the county of Montague, after it was created, recognized the line as made by Camp as the line between said counties, until about the year 1876 or 1877, when some controversy arose as to the correctness of the line. (4) In 1859, Cooke county, after due notice to Wise county, and by representatives of each, had the line from the northwest corner of Denton county to a point six miles west of that point run and established as a true line between said counties, and then ran the west line of Cooke, being also the east line of Montague, and in so doing crossed the north line of Wise, as run by Camp, about six miles west of where the northeast corner of Wise county had been established by Camp. Said survey of the line between Wise and Cooke, for the six miles east and west and the one mile north and south, was returned to Cooke county, and duly approved and recorded, and the two counties from that time acquiesced in the line thus located. (5) In 1877, after a contention arose between Wise and Montague counties, the commissioners' court of Wise county, intending to act under the act of 1846, and in accordance with the same, appointed A. Daverneux to retrace and remark the north line of Wise county, and notice was served on the county court of Montague of the fact of such appointment and the time of the survey, but as to wheth

er said notice was served for the length of time required by law does not appear from the evidence. (6) At the time designated in the order, A. Daverneux went to the northwest corner of Wise county, as established by Camp. and, no one appearing to represent Montague, ran the line. He passed the Camp corner, and traced the old Camp line from the said corner to the northwest corner of Wise county, the same being easily traced. The said Daverneux remarked the said Camp line, and made report to the commissioners' court of Wise county, and the same was approved and recorded. (7) From the time of the running of the line by Daverneux, and even before that time, and on until 1881, both Wise and Montague counties claimed the strip of land in which the land in controversy is situated, and each claimed the right to assess and did assess the same for taxes. (S) In the latter part of 1881 the commissioners' court of Montague county ordered the line between said county and Wise surveyed, and appointed Wm. Yarbrough to run the same, and appointed a time to run the same, and notice was ordered by the commissioners' court to be served on the commissioners' court of Wise county, and a notice was issued to the county judge of Wise county, with a copy of the order attached, and was served on said county judge of Wise county. | (9) The commissioners' court, nor county judge, nor either of them, ever took any steps to send any one to meet said Wm. Yarbrough, surveyor for Montague, but did nothing in the premises. (10) Said Wm. Yarbrough went to the northwest corner of Denton county at the appointed time, to wit, day of 1882, and, no one being there to represent Wise county, proceeded to run a line from a point 6 miles west of the northwest corner of Denton county, on a due west course, for a distance of about 24 miles, or 30 miles from the said northwest corner of Denton county, and marked the same as the line between Wise and Montague counties, and established the corners, mile posts, etc. (11) In running the said line, the surveyor did not look for the old line as run by Camp and retraced by Daverneux. (12) The line so run by Wm. Yarbrough ran about 2,600 varas south of the town of Sunset, where the property involved in this case is situated. (13) Said Yarbrough made due return of his survey to the commissioners' court of Montague county, and said county received and approved said work, and the testimony showed that said report was recorded in Montague county. (14) In 1884 the county judge of Wise county made an order for the survey of the line between said county and Montague, and appointed A. Daverneux to represent Wise county, and issued notice to the county court of Montague county; and the commissioners' court, acting upon said notice, appointed E. S. Eades and Wm. Yarbrough, in April, 1884, to meet A. Daverneux, and run and establish a line. (15) When the

said surveyors of the said counties met, they could not agree on a beginning point, nor as to what variation they should run the line upon. They certified the fact of their disagreement as to the fact to the commissioners of the general land office, and were instructed to begin to run the line from a point one mile north of the northwest corner of Denton county, and to run due west. (16) The parties then went to the west line of Cooke county, as run in 1859, and started at a point one mile north of what was located by said survey of 1859 as being the southwest corner of Cooke county, and about 6 miles west of the northeast corner of Wise county as located by Camp, and at a point a little south of the place where the Camp line ran, and from said point the surveyors of Montague ran a line due west, and marked the same as required by law as a line between said counties. (17) In the running of said line, the surveyor of Wise county refused to participate, and the same was never agreed to by him, nor reported by him to his county in writing, but the county judge and commissioners' court of Wise county were verbally notified of the result of the effort to agree upon a line, and the commissioners' court of Wise county paid said Daverneux for his services on said line. (18) The surveyors from Montague reported the line run and marked by them as just mentioned to the commissioners' court of Montague county, and said court, in 1884, received and approved same, but the same was not recorded. (19) At the time of the survey in 1881 and the survey in 1884 mentioned, and at the time the orders for said surveys were made, there was no uncertainty as to where the line as run by Camp was located on the ground; but from the time it was retraced by Daverneux, in 1877, its location was well known. (20) The line or place where Daverneux retraced the said Camp line was both before and after said survey by Daverneux, in 1877, recognized as the true location of the line as surveyed by Camp. There was never any dispute of the existence of a line as run by Camp, nor was there any, or, if any, very little, question as to where the same was located, but this was well known. (21) The contention of Montague county was that the line, as the same was run by Camp, was not the correct line; that is, was not run out as it should have been,-that is, not located at the place where a proper survey, run at the proper variation, and from the proper starting point, would have located the north line of Wise if run according to the act creating Wise county. (22) This last line, as run by Eades and Yarbrough, to wit, in 1884, ran south of Sunset about 800 varas. This line was run about due west, as before stated, and that of Camp, in 1856, was run a little north of west, and ran north of the town of Sunset. (23) It is agreed by the parties to this suit that, if the land in controversy lies

in Wise county, the plaintiff shall recover, and, if in Montague county, then the defendant is entitled to recover."

Opinion.

On the foregoing conclusions, the court found that the line run by Camp and retraced by Daverneux was and is the north line of Wise county. This conclusion we believe to be erroneous, under the facts found by the court. To constitute the line as run by Camp the north line of Wise county, it must appear from the facts either that the line so run was required by the boundaries of Wise county and of the surrounding counties, or that it was established as provided by the statute in the case of dispute about boundaries between adjoining counties, such as Wise and Montague, or that the court was justified in finding that Montague was precluded from disputing the line thus run. 1. Was the Camp line, the course of which is established by the court's conclusions of fact, run as required by the boundaries of Wise county and of Denton? If determined by the boundaries of the former county, and its northeast corner be fixed at a point 30 miles north of the southwest corner of Denton, the conclusions fail to show that a line run due west from the northeast corner thus established of Wise county would course north of the town of Sunset, or would follow the line made by Camp; but the conclusions Nos. 16 and 22, on the contrary, indicate, though they do not positively establish, that a line thus run would course about 800 varas south of the town of Sunset, leaving the disputed land in Montague county.

2. Was the line as run by Camp established by any method known to the law as the dividing line between Wise county and Montague? To accomplish such a result, it was incumbent upon the county court of Wise county to appoint him as a surveyor to ascertain, survey, and mark the line, and, further, to cause a copy of the order of the appointment to be presented to the county court of Cooke county (then including the territory now known as Montague) at least 10 days before the time appointed for the running of the line. Act May 12, 1846 (Sayles' Early Laws, art. 1714). The court, in its conclusions, fails to find that any such notice was given. The necessity of such a notice, in order to bind the county in adverse interest, is apparent, because otherwise the proceeding would be wholly ex parte on the part of the acting county, and the result such as might be easily contemplated to have been brought about by an exclusive consideration of its own interests. It thus follows that the record fails to disclose that the conditions concur which would justify the conclusion that the line run by Camp was declared to be the true line, and established in the manner prescribed by law. Jones v. Powers, 65 Tex. 207.

3. Can we adjudge this line to be the true boundary line between the two counties interested, on account of the fact found by the court that the officials of these counties "recognized the line as made by Camp as the line between said counties until about the year 1876 or 1877, when some controversy arose as to the correctness of the line"? We think not. In this state the doctrine seems to be that, with reference to actions involving the right or title to land, where the county acts as the representative of sovereignty, the statute of limitations cannot be invoked against it; and this because counties, unlike "municipal corporations proper," are regarded as subdivisions of the state, and as representatives of the sovereignty of the state, with reference to which, in its fullest signification, the maxim applies, "nullum tempus occurrit regi." Cole man v. Thurmond, 56 Tex. 514; Railway Co. v. Travis County, 62 Tex. 16. The doctrine also is, in this state, that ordinarily the principle of estoppel cannot be applied to the state. Saunders v. Hart, 57 Tex. 8. It would follow, therefore, that such a principle could not be applied to a county when, as in a case such as here presented, it acts as a subdivision of the state, and in right of the sovereignty of the state. But, if the doctrine of estoppel could be held to apply to a county under any circumstances, we do not think that the facts found by the trial court in this case would justify the application of that doctrine to Montague county. During the period of acquiescence referred to by the court, the interval beginning January 28, 1861, and ending December 3, 1869, was not reckoned in applying the statute of limitations. By analogy, this interval should not be estimated with reference to the question whether Montague county was guilty of laches. No affirmative or positive act or conduct on the part of the officials of Montague county is referred to in the court's conclusions, and we apprehend that the recognition referred to was purely passive. A county should not be made to suffer on account of the neglect of its officers to enforce its rights. It should appear, in any event, in order to justify the application of the doctrine of estoppel, that the action of the other county in adverse interest had been in some way influenced by the conduct of the county sought to be bound, and that through an agent authorized to represent it. This record fails wholly to present us with such a condition of facts. Board of Sup'rs v. City of Lincoln, 81 Ill. 156; Sims v. Chattanooga, 2 Lea, 694.

As we are unable to concur with the conclusion of law drawn by the learned trial judge upon the facts stated by him, and as the condition of the record is not such as to enable us to ascertain what is the correct location of the boundary line involved, we are constrained to reverse the judgment, and remand the cause; and it is so ordered.

1. In an action for the death of a boy eight years old, killed by defendant's engine while on a trestle, where the defense of contributory negligence was set up, it was error to refuse to charge that "if the deceased voluntarily went on defendant's track at a place of danger, and exposed himself to peril from approaching trains, and if he had intelligence to appreciate and avoid the danger of the situation, then plaintiff cannot recover."

2. Where the evidence failed to show that deceased was of such tender years that no contributory negligence could be charged to him, and there was evidence tending to establish the plea of contributory negligence, it was error to charge that if deceased was killed, while on defendant's track, "by the negligence of defend ant's employés, either in failing to discover him in time to avoid injuring him, or in failing to use all reasonable means to avoid injuring him after he was discovered, you will find for plain tiff."

3. It was error to charge that, "although you should find plaintiff guilty of contributory negligence in allowing his son to walk on the track, if you find that defendant's employés saw him in time to have avoided the injury by the use of every reasonable means in their power, and if they failed, after seeing the boy's danger, to use such means to prevent the injury, defendant is liable."

4. It was not error to refuse a charge to find for defendant if plaintiff consented to allow his child to walk on the track.

Appeal from district court, Lamar county; E. D. McClellan, Judge.

Action by C. C. Christian against the St. Louis & San Francisco Railway Company for the death of plaintiff's minor son through negligence of the company. Judgment for plaintiff, and defendant appeals. Reversed. H. D. McDonald, for appellant. Hill & Birmingham, for appellee.

RAINEY, J. This is an action for damages brought by appellee, against appellant on account of the killing of Tim Christian, appellee's son, a minor, by appellant's train of cars. The petition alleged that the killing was negligently, willfully, and wantonly done. Judgment was rendered by the trial court for appellee, from which this appeal is taken. There are various errors assigned, all attacking the charge of the court, or the action of the court in refusing to give special charges asked by appellant. The first is for failing to give the following special charge requested by appellant, to wit: "If you believe from the evidence that deceased voluntarily went upon defendant's track at a place of danger, and exposed himself to peril from approaching trains, and that he had the intelligence to appreciate the danger of the situation, and the discretion to avoid them, then plaintiff cannot recover, and you will find for the defendant." The court not only refused to give this charge, but failed to give any embodying the same