public crossing to exercise certain acts of precaution. Appellee submits that, although the court may have erred in its charge to the jury, the evidence, the charge, and the verdict of the jury show that the damage to the plaintiff's carriage which resulted from the first collision was not considered by the jury in making up their verdict. The facts show that the second collision occurred on the return of the engine along the main track shortly after the first collision, and that it was due to the negligence of defendant's servants who were operat train, and failed to do so." This charge | has been assigned as error because there is no evidence to authorize the submission of such an issue as to the defendant's negligence. There is no evidence, either from the testimony of the witnesses or from the circumstances attending the collision, tending to show that the defendant's employes saw the carriage in time to stop the train and prevent a collision. The fact that the defendant, in its plea of contributory negligence, alleged that the "engine and cars were too close to be stopped,' did not authorize the submission of such an issue, without evidence to supporting the train. The petition alleges that it. "A charge should not be given where there is not sufficient evidence fairly to raise an issue of fact to which it relates; for the giving of a charge under such circumstances induces the jury to believe that, in the opinion of the court, there is such evidence. Railway Co. v. Platzer, 73 Tex. 124, 11 S. W. Rep. 160. " In defining the contributory negligence of the driver which would prevent plaintiff from recovering, the court charged the jury as follows: "Yet if plaintiff's agent discovered the passing train in time to have stopped his horses, or if he could have discovered it by the use of ordinary diligence, such as a man of ordinary pru. dence and foresight would have exercised under such circumstances, and was not in fact thrown off his guard by defendant's failure to sound the bell or whistle, then plaintiff could not recover." This charge is erroneous, because the driver would not have been excused, although he may have been thrown off his guard by the failure of defendant's servants to sound the bell or whistle, if he had discovered the passing train in time to have stopped his horses, and did not do it, or if he could have discovered it by the use of ordinary diligence, and did not. He would not be relieved from the exercise of care on his part by the failure of the defendant's servants to sound the bell and whistle. The evidence in this case shows very conclusively that the driver of the carriage knew that the train was moving in the same direction in which be was driving, and the obstructions to his view of the moving train existed only for a very small part of the way from the crossing where he saw the train moving to the next crossing, where the collision occurred; and it cannot be assumed that the injury was caused by reason of the failure to give the signals. Railway Co. v. Graves, 59 Tex. 330. The charge complained of under the third assignment of error is the law. It is as follows: "The law does not require a person who is approaching a public railroad crossing to stop, look, and listen for passing trains before attempting to cross, yet a failure to do so might be negligence; and whether a failure to do so would or would not constitute negligence is a question of fact, to be determined by the jury from all the facts and circumstances in evidence in the case." But it is not usually proper for the court, in its charge, to single out particular acts that would constitute negligence, nor, on the other hand, to iuform the jury that it would not be the duty of a person about to cross a railroad at a the damage to the carriage resulting from the first collision was $50, and that resulting from the second was $450. There was some conflict of testimony as to the extent of the injuries from the first collision. Some of the witnesses testified that one hind wheel and one axle were broken, and the only valuation placed on the extent of the first injuries was $50. But Cline testified that the carriage was badly broken, and "reduced to kindling wood." Campsey, the brakeman, stated that the car. riage was badly broken, the hind wheel and axle broken, and side mashed in; that very little damage was done the second time, the breaking all being done by the first collision. The carriage was shown to be worth $500 before the injury, and it was shown that the wreck was worth only about $30 or $40 after the second collision There was testimony as to the original cost of the carriage, and the extent of its use; and the jury returned a verdict assessing the damages at $400. We cannot say from the testimony whether the jury excluded from consideration the damages occasioned by the first collision or not. They may have done so, or they may have taken into consideration the original cost of the carriage and the extent of its use, and arrived at what they considered to be the extent of the entire damage. We do not feel authorized to say they did not adopt the latter view of the testimony. We conclude that the judgment of the court below should be reversed, and the cause remanded. Adopted by supreme court, June 14, 1892. GULF, C. & S. F. Ry. Co. v. Kerfoot. (Supreme Court of Texas. June 17, 1892.) CONDEMNATION PROCEEDINGS-REVIEW ON AP PEAL. Where separate proceedings against defendant to condemn a right of way over two tracts of land are heard together, and the commissioners assess the damages to both tracts in a single sum, an exception to the award, though made on the ground that the assessment was inadequate as to one tract, brings up the whole case for review, and it was not error for the court to allow defendant to amend his exception by alleging the inadequacy of the assessment as to the other tract. Appeal from district court, Brown county; J. W. TIMMINS, Judge. Condemnation proceedings by the Gulf, Colorado & Santa Fe Railway Company against J. D. Kerfoot. Judgment for defendant. Plaintiff appeals. Affirmed. J. W. Terry, for appellant. Thos. Maples and Bell & Drane, for appellee. was originally filed to the award, although it named only one tract, was, in effect, an exception to the entire assessment, and brought the whole case as consolidated before the court for review. If the amount awarded was not sufficient to cover the damage to the Pease survey alone, it followed that it was not sufficient to cover the damages to both. The appeal from the award as to both tracts being before the court, we think it was not error to permit the appellee to amend his objection so as to make it more specific, and to enlarge the amount of damages claimed. It having become a case in court, we see no reason why the statute which permits pleadings to be amended should not apply to it. We find no error in the judgment, and it is affirmed. FREIBERG et al. v. WALZEM. (Supreme Court of Texas. June 14, 1892.) ACQUISITION OF HOMESTEAD. Defendant sold his old homestead, and occupied other premises as his home, with a continuing intention to make the laud in dispute his home by a purchase which he effected. Held, that defendant's homestead right vested simultaneously with his acquisition of the property, and was not subject to a prior judgment lien. GAINES. J. The appellant on July 25, 1885, filed two applications with the county judge of Brown county to condemn a right of way over two tracts of land, known, respectively, as the "E. M. Pease" and the "Nathan Brookshire" surveys, each of which was alleged to belong to the appellee, J. D. Kerfoot, and F. H. Kerfoot. The same commissioners were appointed in each case, and, though the applications were to condemn each tract separately, they rendered but one award, assessing the damages to both at $125 in the aggregate. Thereupon the appellant filed the following objection: "Now comes J. D. Kerfoot, and excepts to the award of the commissioners appointed by the honorable judge of this court to fix the damage done him by the proposed taking of right of way for the road of the abovenamed plaintiff over defendant's tract of land known as the E. M. Pease' onethird league of land, because the sum of $125 awarded as compensation for such taking is wholly insufficient. Defendant says that he uses said tract of land as a sheep and horse ranch, and the right of way over the said tract as laid out by plaintiff runs through a corner of said tract, and cuts off in the shape of a triangle about 150 acres of said tract, and renders the same entirely valueless to defendant, and by reason of its shape renders it of little value to any one else; that defendant's damages, on a reasonable and fair estimate, are not less than the sum of $1,000." On account of the disqualifica-judgment against him, filed in the county tion of the county judge, the case was transferred to the district court, in which the judgment was rendered from which the appeal is prosecuted. Before the case was called for trial, the appellee was allowed to file an amended objection to the award, in. which he complained, in substance, that the award was insufficient in amount, both as to the Pease survey and as to the Brookshire tract, and alleged that his damages amounted to $2,000. This pleading was excepted to by the appellant upon the ground that, since the appellee had failed to object to the award as to the Brookshire survey at the time it was made, it was too late to make objection as to that tract after the case had been brought to the district court. The court overruled appellant's excep tion, and its ruling is assigned as error. It may be conceded that, if the commissioners who awarded the damages had assessed the damage to each tract of land separately, the appellant should not have been permitted, after an appeal to the court, to so amend his pleading as to bring in review the action of the commissioners in assessing the damages to the tract of which no objection was originally filed. But here, although separate proceedings were instituted for the condemnation of the several tracts, it appears that the commissioners, without objection from either party, heard the two cases together, and assessed the damages to both in a single sum. We are of opinion, therefore, that the exception that Commissioners' decision. Section A. Appeal from district court, Bexar county: GEORGE H. NOONAN, Judge. Suit by Freiberg, Klein & Co. against Andrew Walzem to foreclose a judgment lien upon property owned by defendant and acquired by him after abstract of where the property was situate. Judgment for defendant: Plaintiffs appeal. Affirmed. C. K. Breneman and Upson & Bergstrom, for appellants. J. M. Taylor and C. L. Wurzbach, for appellee. MARR, J. This suit was instituted by the appellants, Freiberg, Klein & Co., against the appellee, Andrew Walzem, in the district court of Bexar county, Tex., on the 10th day of June, 1889, to foreclose a judgment lien for the sum of $1,674.19 upon property owned by defendant, and acquired by him after an abstract of the judgment against him had been filed in the county where the property is situated. Defendant alleged that he had acquired the property for the purpose of a home for bimself and family, and immediately used and occupied the same as a home. The cause was tried on October 12, 1889, without a jury, and judgment rendered for defendant, from which judgment plaintiffs appealed to this court, and assign the following error: "The court erred in finding for the appellee, Andrew Walzem, against the lien claimed by appellants, on the ground that the property described in plaintiff's petition upon which the judgment lien is claimed and sought to be foreclosed was the homestead of appellee, Walzem, in this: that the facts show that appeilants' (Freiberg, Klein & Co.'s) judgment was of record in Bexar county before and at the time appellee, Walzem, acquired title to the property set out in ap pellants' petition, and therefore appellants' lien attached to the property ahead of, and was and is superior to, appellee's homestead claim therein." The land in dispute is a house and lot “on Avenue D and Seventh street, in the city of San Antonio, acquired by appellee by deed from Fritz Schreiner, dated March 23, 1889." The abstract of plaintiff's judgment was duly recorded and indexed in the proper records of Bexar county on the 13th day of March, 1886. The appellee. Walzem, proved that he was at the institution of this suit, and had been for several years prior thereto, a married man, and the head of a family, consisting of himself, his wife, and one child; that on the 19th day of April, 1886, he purchased the lot No. 14, in block 36, on Avenue C, in the city of San Antonio, with the proceeds of the sale of his former homestead, and built a house on it, and lived therein, and occupied it with his family continuously for more than three years as their homestead; that on the 19th day of March, A. D. 1889, defendant and his wife sold their said Avenue Chomestead to Leopold M. Michael for $3,000, with the intention of investing the said money in another homestead; that on the 23d day of March, A. D. 1889, defendant purchased from Fritz Schreiner the house and lot on the corner of Avenue D and Seventh street in the city of San Antonio, with the intention and for the purpose of making it his homestead, and paid therefor the $3,000 realized by him as aforesaid from his said Avenue C homestead; that defendant had, a short time prior to the sale of his Avenue C homestead, temporarily rented it, and was renting and occupying the said house and lot on Avenue D (with the intention of purchasing the same and making it his homestead whenever he sold his said Avenue C homestead) at the time he purchased it from the said Fritz Schreiner, and is now occupying and using the said house and lot on Avenue D with his family as his homestead, and that he does not own any other real estate in Bexar county, Texas, or elsewhere." Under the provisions of the statute the judgment lien, when duly established, will "operate upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire situated in said county." Rev. St. art. 3159. The lien, however, cannot be extended to the homestead of the defendant, which the constitution and laws exempt from forced sale and every character of liens except those specially enumerated in the constitution. Const. art. 16, $50; Freem. Ex'ns, § 249d. It has been held in this state, however, that a judgment lien, when once fixed upon the land of the defendant, will be superior to a subsequently acquired homestead right in such land. Wright v. Straub, 64 Tex. 66. It is also the established doctrine in this state that when the homestead has been voluntarily sold, the proceeds of such sale are not protected by the exemption laws from the claims of the creditors, although the sale was made with the intention of purchasing another homestead. The re investment and acquisition of another homestead must be complete before the protection can be invoked, for it is the homestead itself which the constitution exempts, not the money with which one may be acquired in the future. Kirby v. Giddings, (Tex. Sup.) 13 S. W. Rep. 27, and cases cited. In view of the principles announced in those decisions, as well as the terms of the statute above cited, the counsel for the appellants contend that the lien of the appellants' judgment attached to the land in dispute at the very moment it was acquired, and before it became a homestead, and therefore it may be sold in satisfaction of the debt and lien. We do not concur in this view of the case. We are of the opinion that, under the disputed facts in evidence, as soon as appellee obtained the title to the property in question, it became immediately impressed with the homestead character, and therefore the judgment lien could not and did not attach to it. Crawford v. Richeson, 101 Ill. 351. The appellee purchased it for a home for himself and family, and had no other, and at the very time was actually occupying and continued thereafter to occupy it as his homestead. The lien could not attach until the land became the property of the defendant, and the very moment that it did become his property, as we have seen, it became his homestead also, upon which the lien could not operate. The property in controversy was therefore protected from the operation of the lien, not because the purchase money was exempt, (for such was not the case,) but because the land itself was exempt as the homestead of the appellee immediately upon its acquisition. From the sale of the old to the purchase of the new homestead there was a continuing intention upon the part of the appellee to make the land in dispute his home, and simultaneously with its purchase he was actually Occupying and using it in that character and for that purpose. Eby v. Foster, 61 Cal. 282; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. Rep. 266. See, also, Watkins v. Davis, 61 Tex. 414; Gardner v. Douglass, 64 Tex. 76. Under such circumstances, the homestead right of the appellee in the land vested immediately, and was never subject to the judgment lien. Our conclusions are based entirely upon the facts of this particular case, without attempting to indicate what should be the proper criterion upon a different state of facts. The judgment should be affirmed. Adopted by supreme court, June 14, 1892. city for the purposes of the statute of limitations. 3. A plea by a city of the statute of limitations must aver that the city has complied with all the provisions of the statute, including the recording of its deed and the payment of state and county taxes. 4. The statute of limitations does not run against a person of unsound mind so long as he remains insane. Appeal from district court, McLennan county; L. W. GOODRICH, Judge. Trespass to try title by Ed Moore, as guardian of Maria E. Woodward Wortham against the city of Waco and others. Plaintiff obtained judgment for an estate for life. Plaintiff and the city of Waco and other defendants appeal. Reversed. Wm. M. Flournoy, for appellant Ed Moore. E. A. McKenney, for appellants E. R. Wortham, W. T. Montgomery, and Montgomery minors. John F. Flint, for appellant City of Waco. Herring & Kelley, for appellees J. A. Leftwich, guardian, and Susan A. Leftwich. HENRY, J. This is an agreed case and is stated as follows by the parties: "This is an action of trespass to try title for the recovery of an acre of land in the city of Waco, brought by Ed Moore, as guardian of Maria E. Woodward Wortham, who was for years prior to 19th June, 1878, and still is, a non compos mentis, and beyond the hope of recovery. This suit was brought in the district court of McLennan county on 29th of August, 1891, against the city of Waco, and against E. R. Wortham, who was one of the children of said Maria E. Woodward Wortham, and against the other appellees herein, who were the children of a deceased daughter and a deceased son of said Maria E. Woodward Wortham. All the defendants pleaded "not guilty," and the city of Waco also pleaded the statute of limitation of five years. The defendant E. R. Wortham, and those claiming under the deceased daughter, Ann Maria Montgomery, also set up specially that the deed hereinafter quoted, under the circumstances surrounding the parties at the date of its execution, passed the whole title in the property to the children of said Maria, who were E. R. Wortham, N. J. Wortham, and Ann Maria Montgomery. The minor children of said Ann Maria Montgomery were represented herein by their guardian and father, William F. Montgomery, who also appeared for himself. The minor children of N. J. Wortham, deceased, were represented herein by their guardian, J. A. Leftwich, who had intermarried with the widow of said N. J. Wortham, deceased, who died in 1885. Said Leftwich and wife were also parties herein. There were other parties to the suit, but they were disposed of in such a way by the decree that their rights are not involved in this appeal, as all parties were satisfied therewith. Trial was had on December 1891, and judgment rendered in plaintiff's favor for an estate for life in said land, and that she recover said land as against the defendants, who are appellees herein. The plaintiff and the city of Waco and E. R. Wortham and the minor children of N. J. Wortham, by their guardian and their mother, Susan A. Leftwich, and all the children of Ann Maria Montgomery, (the minors being represented by their guardian,) and their father, W. F. Montgomery, gave notice of appeal, which in due course was duly perfected, and they have assigned errors. One of the questions invoked upon this appeal is the proper construction of the following deed, which was introduced in evidence: "The state of Texas, county of McLennan: Know all men by these presents, that I, N. J. W. Wortham, of the county of McLennan and state of Texas, for and in consideration that I am indebt. ed to my wife, Maria E. Woodward, now and for many years a non compos mentis, for whom I am curator and guardian by appointment of the proper court in the parish of East Feliciana, state of Louisiana, the indebtedness being on account of property and money belonging to my said wife, which I have appropriated to my own use and behoof, amounting to many thousand dollars, I have bargained, sold, and conveyed to Ann M. Montgomery, wife of Wm. F. Montgomery, Eben R. Wortham, and N. J. Wortham, all of whom are children of the said Maria E. Woodward, in trust for said Maria E. Woodward, all the right, title, and interest which I have in and to the following described lands lying and being in the state of Texas, to wit: (1) 50 acres of land in Calhoun county, out of the Maximo Sanchez league, etc. (2) Wm. Graham 640-acre donation tract in Harris county, etc. (3) Isaac H. Bear league in Falls county, etc. (4) Jno. Richardson league in Bosque county, etc. (5) (6) (ne_acre of land in the city of Waco, etc. (7) Francis W. Smith 320-acre tract, assignee of Jas. B. Cowen, in McLennan county, etc. (8) My interest in S. P. Wilson headright, in McLennan county, etc. (9) The lower half of C. B. Emmons league in McLennan county, etc. Together with all and singular the rights, members, improvements, hereditaments, and appurtenances to the same belonging or in any wise incident or appertaining. To have and to hold all and singular the said premises unto the said Ann M. Montgomery, wife of Wm. F. Montgomery, Eben R. Wortham, and N. J. Wortham, her children, in trust for her and themselves forever. I bind myself to warrant and forever defend this against the claims of all others to the same in law and equity. Witness my hand and serawl for seal this 19th of June, A. D. 1878. N. J. W. WORTHAM. The deed was duly acknowledged same day and was duly recorded in McLennan county on 22d June, 1878. The city of Waco holds that part of the land sued for, covered by Seventh and Eighth streets, shown in the map contained in the record, which property it holds under a deed from N. J. W. Wortham to the city, dated May 24, 1886, and recorded 3d July, 1886. The streets have always been kept open, and have never been inclosed by the city, or otherwise occupied, except as public streets of the city of Waco, and open for travel by the public generally, and have been improved, kept up, and maintained by the city as such open streets continuously since the date of its deed. 1. Upon the trial the court sustained a demurrer to the city's plea of five years' limitation, holding that the city had not pleaded the five-years statute of limitation because there could be no such adverse possession by the city of the property claimed by it as was sufficient basis for the running of the five-years statute of limitation. The city, by this appeal, calls in question the correctness of this ruling. 2. The court further held upon the trial that the aforesaid deed from N. J. W. Wortham, dated 19th June, 1878, was controlled by the rule in Shelley's Case, and that it put a life estate in Maria E. Woodward Wortham with remainder over to the parties (her children) therein named, and their heirs. 3. Another question presented for the decision of the supreme court is whether or not said deed put the whole estate in fee simple in said Maria E. Woodward Wortham, or whether she took a life estate, with remainder over to her children therein named, or whether the deed created and passed a joint estate to said Maria E. Woodward Wortham and her children therein named. a “simple or dry trust," in which the cestui que trust is entitled to the actual possession and enjoyment of the property, and to dispose of it, or to call upon the trustee to execute such conveyances of the legal estate as he directs. 2 Perry, Trusts, 56. If the habendum could be given effect, it would convey the property to the wife and children named as tenants in common. The granting clause, standing alone, would convey the fee-simple estate to the wife alone. Under the rules above quoted, we think that the deed must be treated as vesting such title in the wife. We do not agree with the court below in its conclusion "that the city could not plead the five-years statute of limitation, because there could be no such adverse possession by the city of the property by it as was sufficient basis for the running of the five-years statute of limitation." We think that a city may hold property adversely to the owner for the purposes of the statute of limitations, and that the ordinary uses of a street by authority of a town or city should be regarded as such possession. But to entitle it to acquire title by limitation the city must show that the terms of the statute have been complied with in other particulars, including the record of its deed, and the payment of 4. The court further held that the property could not be partitioned during the life of Maria E. Woodward Wortham, and the correctness of such holding is also in-state and county taxes. The agreed case voked by this appeal. We do not think that the proper decision of this cause is controlled or affected by the rule in Shelley's Case. The governing rule in the construction of written instruments is "that every part of the instrument should be harmonized and given effect to if it can be done." Hancock v. Butler, 21 Tex. 806. But this rule does not demand that every part of the deed shall be treated as of equal weight in the solution of every question that may arise. "The habendum may be entirely rejected if repugnant to the other clauses of the conveyance." Devl. Deeds, § 213. "A person who is not named in the premises as a grantee may take by way of remainder, but where the grant is to one person the habendum cannot be operative when it is to him and another to take as just tenants or tenants in common." Id. § 219. "If, however, there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but, if they can be construed so as to stand together by limiting the estate without contradicting the grant, the court always gives that construction in order to give effect to both." "The test to be applied to an habendum in a deed is whether it can be construed so as to stand with the premises, or is so repugnant in its operation as to be irreconcilable with the latter. In the one case it limits and explains the nt; in the other it is rejected as of no effect. 3 Washb. Real. Prop. 469. In the deed before us, the trust in the granting clause of the deed is for the sole benefit of "Maria E. Woodward," the wife of the grantor, while in the habendum it is for her and "themselves," including also her children, who are mentioned as trustees. The nature of the trust not baving been prescribed in the deed, it is what is known as does not show that these facts were averred in the pleading to which the exception was sustained, and therefore it does not appear that an error was committed in overruling the plea. It appears from the agreed case that the grantee was of unsound mind when the deed was made, and that she has so remained ever since. The statute did not run against her. The deed under which the city claims was made by the husband after he had conveyed the property to the trustees, from all of which it appears that the city has not acquired title by limitation. The judgment will be reversed, and here rendered for the appellant Moore, as guardian. 1. The district court has jurisdiction of a trial of the right of property, where the value of such property is fixed by the sheriff at $500. Erwin v. Blanks, 60 Tex. 583, followed. 2. Rev. St. art. 4829, which directs the sheriff, in a trial of the right of property, to return a copy of the writ of sequestration to the court, does not require a certification thereof by him. 3. A chattel mortgage, required to be registered under Act April 22, 1879, is not admissible in evidence without proof of its execution. Appeal from district court, Fannin county; E. D. MCCLELLAND, Judge. Trial of the right of property in certain goods seized by virtue of a writ of sequestration in favor of B. F. Echols against J. S. Harrison, and claimed by W. J. Betterton & Co. The attaching creditor obtained judgment. Claimants appeal. Reversed. W. H. Gross and Lusk & Thurmond, for |