84), and should be considered in connection alone. None has ever been suggested, so far with them and decisions thereunder. Act as we know. The issue of solvency or insolJan. 9, 1843, Pasch. Dig. art. 1061; Act May 11, 1846, Pasch. Dig. art. 1107; Act March 20, 1848, Pasch. Dig. art. 1305; Horn v. Arnold, 52 Tex. 161, and cases cited; Act Aug. 15, 1870, Pasch. Dig. art. 5487; Scott v. Cunningham, 60 Tex. 566. See, also, Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, under said Constitution of 1876.

[2] Regardless of all questions, as to solvency or insolvency, a surviving spouse, whether husband or wife, is entitled to hold and use the homestead, exempt from forced sale for payment of his or her own debts, so long as he or she may choose to do so, even though such spouse be the sole remaining member of the family. Kessler v. Draub, 52 Tex. 575, 36 Am. Rep. 727; Blum v. Gaines, 57 Tex. 119; Trawick v. Harris, 8 Tex. 312; Zapp v. Strohmeyer, 75 Tex. 639, 13 S. W. 9; Childers v. Henderson, 76 Tex. 664, 13 S. W. | 481. However, subsequent abandonment of the homestead by either spouse would end the right of such one to further claim exemption against debts of that character. Cox v. Shropshire, 25 Tex. 113; Shannon v. Gray, 59 Tex. 251; O'Brien v. Woeltz, 94 Tex. 148, 58 S. W. 943, 59 S. W. 535, 86 Am. St. Rep. 829.

But exemption of the homestead from debts of the deceased husband, where the wife, or a minor child, or an unmarried daughter remaining with the family, survives the decedent, is a different matter, and rests upon principles, which have their roots in the Constitution and in the above-mentioned statutes, and which are discussed at length in the Logan Case, and in cases therein cited; those discussions being, however, with special reference to insolvent estates.

The main general purpose of our Constitution and laws in this regard has been to exempt the homestead from forced sale, except for purchase money, taxes, and improvements thereon. The three exceptions emphasize that purpose. If the lien for any such item be properly fixed, it may be enforced against homestead property of a decedent, just as against any other property, whether the estate of such decedent be solvent or not. Eliminating those three items from the equation, we have left the main purpose as to homesteads. Its conception is philanthropic and humanitarian; its outline is bold and comforting, like "the shadow of a great rock in a weary land"; its operation and effect are coextensive and contemporaneous with lawful possession and exercise of homestead rights. Perhaps as supplying unequivocal and possibly added reason in support of the decision announced therein, many, and probably all, of the adjudicated cases, as we have seen, have mentioned, and some of them have stressed possibly, the fact that the estate of the decedent was insolvent; but, upon principle, we can see no sufficient reason for

|

vency is not treated by the Constitution or the statutes as a proper basis for that distinction. Even equity makes no appeal in the premises; her pleading voice is stilled by reason of the fact that, except said three eliminated items, which must, in any event, be paid, no creditor of the decedent can justly or legally say that he extended credit based upon the homestead property in the sense that he expected, in any contingency not involving abandonment thereof, to be able to subject the homestead property to his debt.

Upon consideration of the opinions in said cases, it is apparent from some of them that some confusion of ideas, and of principles as well, has grown out of the fact that article 3422 expressly provides that, in insolvent estates, "the title of the widow and children to all the property and allowances set apart * * to them, under the provisions of this and of the preceding chapter, shall be absolute, and shall not be taken for any of the debts of the estate, except as hereinafter provided;" while article 3421, supra, which relates to solvent estates, makes no corresponding declaration concerning "title" to the exempt property, and does not provide that such exempt property (with said exceptions) "shall not be taken for any debts of the estate."

Distinguished counsel for plaintiffs in error insist that this presents a proper instance for application of the well-known rule of statutory construction, "Expressio unis exclusio alterius est;" but we do not think so.

The difficulty and confusion which grow out of said difference between said article 3422 and said article 3421 disappear when a careful analysis of said article 3422 is made, remembering that the former had its inception in section 45 of the probate Act of March 20, 1848 (3 Gam. Laws, p. 249), one original and primary purpose of which was to prescribe a rule for descent, though not of distribution, of exempt property, including the homestead, under circumstances therein defined, a purpose which was declared in Horn v. Arnold, 52 Tex. 161, and cases cited, prior to the adoption of our present Constitution, and abruptly ended, as this court has repeatedly held, by such adoption; it being provided, as we have seen in section 52 thereof, supra, that the course of descent of all homestead property in cases of intestacy shall thenceforth be the same as that of other property, and as fixed by the general statute of descent and distribution.

Although our present Constitution, including said section 52, was ratified by the people of Texas on February 15, 1876, and thereupon became operative, and despite the direction given by said section 52 as to the course of descent of homestead property, at variance, as we have seen, with the provisions of said Act of 1848, the Legislature carried forward,

are in perfect harmony with, said provisions of our existing Constitution, and with all other existing statutes concerning exemptions, and so, as a matter of course, have not been held invalid. But it by no means follows logically that, when an estate is solvent, the converse is true, or that the rule as to homesteads is otherwise.

the same provision as to the course of de- thereinbefore set out, are not violative of, but scent the title of homestead property, where the estate proves insolvent, expressly declaring that "the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and of the preceding chapter shall be absolute," and then, as if by way of declaring a restriction or limitation upon the effect of the foregoing sweeping language relating to such vestiture of absolute title, added the provision that such exempt property and allowances "shall not be taken away except as hereinafter provided," the exceptions referred to being for purchase-money taxes, and work cr material which are set out in said article 3427, relating to "homesteads," and "funeral expenses and expenses of last sickness of deceased, when presented within the time therefor," relating, not to homesteads, but to other "exempted property" and allowances in lieu thereof. In other words, the primary purpose of the words in article 3422 which deal with exemptions was, not to declare an exemption which did not otherwise or theretofore exist, and limit that exemption to insolvent estates, but to limit and restrict the force and effect of the preceding provisions of that article which declare a rule of descent of homestead property.

The rule to be applied to homestead property when the estate is solvent is a matter to be determined by other considerations, from a study of our Constitution and all related statutes, including said article 3422 as an incidental, but not as a vitally essential, part. In view of the general and comprehensive design of homestead protection thus outlined in our Constitution and worked out in detail in our statutes, which were themselves enacted in the light of earlier statutes under former Constitutions and decisions construing them, we regard it as clear, upon principle, and accordingly hold, that our laws concerning exemption of homesteads relate to solvent and to insolvent estates alike, and that in no event in the case at bar, under the ascertained facts, can the homestead property of the decedent, William Hoefling, Sr., be subjected to the debt of plaintiffs in error.

No reason has been suggested why, if his estate is in fact solvent, excluding the homestead as provided by said article 3423, said debt may not be enforced against such other portion of said estate; but upon that point we do not feel called upon to say anything further, as it is not in issue.

Said judgment of the Court of Civil Ap

After said rule of descent was declared unconstitutional, in 1890, because of conflict with said section 52 (76 Tex. 522, 13 S. W. 485), said words of limitation were allowed to remain, and still appear, upon the statute book, although, in so far at least as homestead property is concerned, they are "as idle as a painted ship upon a painted ocean," un-peals is affirmed. less it be to clearly express, as to insolvent estates, a rule concerning exemptions of homestead property which existed aforetime as to that character of property, whether the estate be solvent or insolvent, and which forms a highly important feature of the great design and plan of homestead protection as wrought out in our Constitution and statutes, even if said article 3422 be omitted from consideration.

Indeed, all of the provisions of said article 3422, including the above-mentioned unconstitutional portion thereof, have been permitted to remain upon our statute book, as so enacted in 1876, through more than a generation, and through the three general revisions of 1879, 1895, and 1911, although in numerous opinions, beginning in 1890 with the Zwernemann Case in 76 Tex. 522, 13 S. W. 485, this court has unequivocally declared their unconstitutionality. See cases cited in the Logan Case, supra.

It is true that the other portions-the live portions of said article 3422, which so declare said limitation upon the rule of descent

MALDANADO v. LANE, Comptroller.

(No. 2605.)

(Supreme Court of Texas. May 20, 1914.) COURTS (§ 207*)-JURISDICTION OF SUPREME COURT-MANDAMUS.

material allegations in the application for manWhere respondent denies under oath the damus, the Supreme Court cannot try the issues of fact raised, but must dismiss the application.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 756; Dec. Dig. § 207.*]

Application for mandamus on the relation of F. Maldanado against W. P. Lane, Comptroller. Application dismissed.

Jas. D. Walthall, of San Antonio, for relator. B. F. Looney, Atty. Gen., and W. A. Keeling, Asst. Atty. Gen., for respondent.

BROWN, C. J. The respondent has under oath denied the material allegations of the applicant for mandamus, which makes issues of fact which this court cannot try; therefore the application is dismissed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(Supreme Court of Texas. June 3, 1914.) 1. STIPULATIONS (§ 14*)-CONSTRUCTION AND OPERATION-STIPULATIONS AS TO EVIDENCE. In trespass to try title to a tract of land, 160 acres of which defendant claimed by limitation, it was agreed by the parties that plain-termined as though this suit had been origtiffs had the record title, subject to be defeated inally filed therein on September 8, 1906. only by defendant's claim of limitation. Defendant introduced evidence of a survey of 160 acres by his predecessor in 1894 and of possession of a portion thereof for the statutory period. Plaintiff introduced a number of deeds, the first of which was dated in 1899, and evidence of possession of a part of the tract by his predecessor in title before the statutory period had run in defendant's favor, and it was then admitted by the parties that the chain of title derived through such deeds was the only chain of title under which plaintiffs claimed. Held that, giving effect to both these agreements, it was admitted that plaintiffs' record title was derived through the deed made in 1899, and as a consequence that, when his predecessor in title took possession subsequent to 1899, he

Brown and husband, Edmund Brown, to H. W. Downey. Defendants proved that, just after purchasing said large tract, Downey, through a tenant, took possession of a part of it and put camps and buildings thereon and men therein to hold said large tract for him, claiming it under said recorded deed to him. (2) A release of the vendor's lien retained in said deed to Downey. (3) A deed from said Downey and his brother to the Ives Lumber Company, dated November 4, 1899, recorded December 7, 1899. (4) A deed from the Ives Lumber Company to Rogers, dated March 26, 1904, recorded January 24, 1905. (5) A deed from Rogers to plaintiffs, dated January 18, 1905, recorded January 24, 1905.

Thereupon the following agreement was made by the parties:

"It is admitted that the chain of title derived through the deeds introduced in evidence by plaintiffs, consisting in part of the last foregoing five instruments, is the only chain of title under which F. A. and S. M. Combes claim this land"-the reference therein being to the

aforesaid five instruments.

at which time it appears that appellee was only in actual possession of some 12 or 15 acres of the 160 acres claimed by him, and that therefore appellants' constructive possession extended to their entire tract of 2,289 acres, of which the 160 acres formed a part, for which reason they assert appellee was not entitled to recover except that part thereof which he had actually inclosed, to wit, some 12 or 15 acres. Citing, in support of this contention, Evitts v. Roth, 61 Tex. 81; Whitehead v. Foley, 28 Tex. 289; Hunnicutt v. Peyton, 102 U. S. 333 [26 L. Ed. 113]. This contention would be true if it were conceded that appellants had title to the 2,289 acres at the time they took possession of such portion thereof in 1899, but the record fails to disclose that appellants had title to said land at said time, unless it can be said that the agreement above mentioned gave them such title; but by it appellees insist that they only admitted that the plaintiffs in the case had record title to the land in controversy at the time that suit was filed. This agreement does not state when they acquired such record title; and, in the absence of such statement, we are inclined to believe that it should be construed to mean that it was only intended to be admitted thereby that plaintiff, at the time that the case was tried, had the record title to the land in controversy. And, as the suit was not brought until 1906, appellee's title to the 160 acres was complete by limitation at the time the agreement was made, for which reason this assignment is overruled."

[2] The issue turns upon the effect to be given to said agreements. We find no conflict between them; effect should be given to both. Together they admit that, at the time of the trial, plaintiffs had the record title to the land in controversy; that said title was derived through said deed to Downey; and, as a necessary consequence, that said deed carried the record title to said land. Under that construction of said agreements, and under the other facts shown by the evidence, it follows, and the Court of Civil Appeals, in that view of the matter, concedes, in effect, that said contention and argument of plaintiffs in error are sound. Stringer was not entitled to a judgment in his favor for any land other than that which he and those under whom he claims, had held in actual possession for ten years prior to the filing of this action. Whitehead v. Foley, 28 Tex. 268; Evitts v. Roth, 61 Tex. 81, and authorities therein cited; Parker v. Baines, 65 Tex. 605.

Plaintiffs in error contend that Stringer's title by limitation should be restricted to the land of which he and those under whom he claims held actual possession for the statutory period, and should not be extended to include enough more to make up 160 acres. In support of that contention they say the legal effect of said two agreements of the parties is to conclusively show that said deed to Downey carried the record title to said entire 2,2894-acre tract, embracing all the land claimed by Stringer; and thereupon they argue that inasmuch as Downey went into actual possession of a portion of said large tract under that recorded deed before the completion of said period of limitation of ten years relied upon by Stringer, and thereunder asserted title to all of said large tract, Downey's possession should be treated as extended, by operation of law, to the boundaries of said large tract, excepting only said small inclosed tract which was so held in actual and adverse possession, and that such constructive possession by Downey and those claiming under him was superior to the constructive possession of Stringer and those under whom he claims of [3] Plaintiffs in error further contend so much of said small inclosed tract, the that, because the pleading and evidence failstatutory complement of 160 acres, and stop-ed to furnish field notes or other sufficient ped the running of the statute of limitations description of such portion of said land as in favor of Stringer and those under whom he claims as to all of said 160 acres excepting said small inclosed tract so held in actual adverse possession.

The action of the Court of Civil Appeals thereon, and the reasoning upon which it was based, are shown in the following excerpt from its opinion in this case, which may be found in 142 S. W. 668:

"By the second assignment it is insisted that the court erred in rendering judgment for appellee, because it is asserted that plaintiffs in 1899 acquired title to the 2,2894 acres of land,

was so held in actual possession for said statutory period, no judgment therefor in favor of Stringer can be framed, and that, as a consequence, we should here render judgment against him, as to it, citing the following decisions of Courts of Civil Appeals: Wilcoxon v. Howard, 26 Tex. Civ. App. 281, 62 S. W. 802, 63 S. W. 938; Sparks v. Hall, 29 Tex. Civ. App. 177, 67 S. W. 916; Thompson v. Dutton, 69 S. W. 996. We do not think so. We believe that, while the more commendable practice would have

ed to the trial court, in his pleading and | ex officio services.
through evidence, definite. field notes or de-
scription of such land as had been so held
in actual possession for said period, the
more equitable and better practice here, un-
der the circumstances, is to yet permit him
to do so.

The judgments of the Court of Civil Appeals and of the district court will be reversed, and the cause remanded to said trial

court.

Reversed and remanded.

DALLAS COUNTY v. LIVELY. (No. 2337.) (Supreme Court of Texas. May 28, 1914.) JUDGES (§ 22*)-COMPENSATION-"EXTRA Coм

PENSATION.

An allowance to a county judge for ex officio services already performed, no salary having been previously provided, under Rev. St. 1911, art. 3852, authorizing the commissioners' court to allow him a salary for presiding over that court, etc., was not invalid under Const. art. 3, § 44, prohibiting the granting of "any extra compensation, fee or allowance to a public official after service has been rendered," since, no salary having been previously provided for ex officio services, the compensation for which is to be provided for independently of other official acts for which fees are provided, it was not an "extra" allowance (citing Words and Phrases, vol. 3, p. 2624.)

[Ed. Note. For other cases, see Judges, Cent. Dig. 88 75-88, 179; Dec. Dig. § 22.*]

Hawkins, J., dissenting.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Dallas County against H. F. Lively and others. From a judgment for defendant named, plaintiff appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered.

On the last above-named

date, September 14, 1906, the commissioners' court passed an order allowing appellee $75 per month for ex officio services, beginning December 1, 1905, and ending November 30, 1906, and ordered a warrant to be drawn for said amount. At the time said last order was passed appellee and two commissioners voted for it, and two commissioners voted against it. A warrant was drawn for said amount of $675, covering nine months of said time, on the county treasurer, and same was paid.

"The commissioners' court of Dallas county passed the following order, viz.:

66

"Upon this the 21st day of September, A. D. 1908, came on to be heard and considered the petition and communication of Dwight L. Lewelling, county attorney, filed herein on September 17, 1908, praying for authority from the commissioners' court to make Dallas county a party plaintiff in suits against Hiram F. Lively and A. B. Rawlins to recover ex officio salaries heretofore paid such officers; also came on for consideration Hiram F. Lively's answer to said communication filed herein on September 19, 1908; and it appearing to the court that Hiram F. Lively performed the ex officio services faithfully during the said term for which the ex officio salary was paid; that Dwight L. Lewelling asks authority to sue for; and it further appearing to the court that said services were faithfully rendered, and no compensation was given therefor, except the said seventy-five ($75.00) per month, ex officio salary; and it further appearing that said salary was fixed by the court and paid in good faith as per order of the commissioners' court made and entered on September 14, A. D. 1906, and we do hereby

ratify and confirm the action of this court taken on the said 14th day of September, 1906, in fixing the said ex officio salary of said officer. It is the opinion of this court that there are no merits in equity or justice in the contention of the county attorney as set forth in his said petition; however, it further appearing that Dwight L. Lewelling is the official county attorney of Dallas county, and desired authority to test such matter in the courts of this county, it is the desire of this court that he (Dwight L Lewelling) may have a "free hand" to test the matters complained of in said petition; it is the further desire of this court that in the matters of ex officio salary sought to be recovered from Hiram F. Lively, or any claim he might have against Dallas county for salary unpaid, that there shall be no "pleas of limitation" filed, but that such contentions be tested upon their It is (upon merits, that justice may be done. the request of Hiram F. Lively) therefore orBROWN, C. J. The honorable Court of dered and adjudged by the court that Dwight L. Civil Appeals of the Fifth Supreme Judicial Lewelling, county attorney, do have and is hereDistrict has certified to this court the follow-by given authority to make Dallas county party plaintiff to the suit heretofore filed by him in ing statement and question: the district court of Dallas county against Hiram F. Lively, county judge, and individually, and also against A. B. Rawlins, former district clerk of Dallas county.

Dwight Lewelling and Horace Williams, both of Dallas, for appellant. Spence, Knight, Baker & Harris, of Dallas, for appellee.

"Appellant brought this suit against the appellee and the sureties on his official bond to recover the sum of $675, illegally paid him for ex officio services while serving as county judge of said Dallas county. Appellee recovered, and the county appeals.

66

W. H. Pippin, Presdg. "It is ordered by the court that the within order be and is hereby made and adopted. "Aye: W. H. Pippin, R. W. Eaton, H. H. Bennett, C. D. Smith. Co. Judge Lively, present, not voting.'

"On February 24, 1905, appellee being then judge, the commissioners' court passed an order allowing, 'until further ordered by the court,' the county judge for ex officio services the sum Under the foregoing statement did the comof $100 per month. On June 15, 1905, the order allowing the ex officio salary was re- missioners' court have authority to make the scinded for the reason, in effect, that the time order of September 14, 1906, allowing for ex devoted by him to the affairs of the commis-officio services for a period already expired? sioners' court did not justify such allowance. From said time, June 15, 1905, until Septem- In other words, does such order come within ber 14, 1906, there was no further order or the meaning of article 3, § 53, of the Constiagreement in reference to an allowance for ex tution, which prohibits the granting of "any officio services. On the last above-named date, September 14, 1906, there was no further order compensation, fee or allowance to a public or agreement in reference to an allowance for official after service has been rendered?"