that the facts set forth in the above motion are, to the best of his knowledge, information and belief, true. Such an affidavit was held by this court in Gulf, C. & S. F. Ry. Co. v. Brown, 75 S. W. Rep., S07, to be insufficient, and such holding is fully supported by the following authorities: Graham v. McCarty & Brown, 69 Texas, 323; Spinks v. Matthews, 80 Texas, 373; Pullen v. Baker, 41 Texas, 419; Wilson v. Adams, 15 Texas, 324; Missouri, K. & T. Ry. Co. v. Pietzsch, 10 Texas Civ. App., 575. We are also of the opinion that the application does not show due diligence in endeavoring to procure the testimony of the absent witness.

By its fourth assignment of error appellant contends that the amount of the judgment in favor of appellee is excessive. In view of the character and nature of appellee's injuries, we do not agree with appellant in this contention. The testimony shows appellee to be only 32 years old, and that prior to receiving the injuries he was a stout ablebodied man, capable of doing considerable manual labor, and that he earned from $1,000 to $1,500 a year, and that since he received the injuries, he has not been able to earn half so much. Appellee testified that in the accident, he received a violent fall, that it jerked his side terribly, and mashed it in and bruised his back and right leg; that he was confined to his room and unable to do any work for five or six weeks, that he suffered a great deal from his wounds, that they prevented him from sleeping at night; that frequently he had to sit up all night on account of his head, back and side hurting him so badly.

Dr. Davis, who examined him two days before the trial, testified that in measuring appellee's sides and hips, he found his right side sunken. and shorter than the other, the muscles atrophied, and that when standing erect, his right shoulder was lower than the left; that the two lower ribs on that side were driven in and down, and there was a tender spot over his spine, and also over these two ribs; that from appellee's statement as to the pain he suffered, there must be an adhesion on the inside or something torn loose, and that while nothing can be done now to relieve him, nature having performed the best cure possible, yet complications might arise hereafter that would necessitate an operation. He also testified that appellee's injuries were permanent. This witness also testified that he had known appellee all his life, and that prior to the date that he alleged he received his injuries, he was a stout, able-bodied man, but that since that date he had not been. Appellee's testimony with respect to his injuries and suffering was, in many respects, corroborated by that of his wife and other witnesses. In view of the character and nature of appellee's injuries, as shown by the testimony, we do not think the amount of the judgment is excessive.

Appellant's second assignment of error complains of the action of the court in overruling its motion to quash the deposition of J. M. Brown, a witness for appellee; appellant's contention under this assignment being that said deposition was not returned as required by law, in that the envelop in which the deposition of said witness was returned shows neither the postmark, place from which it was sent, nor was it sent by the postmaster. The envelop in which the deposition was returned to the court below is sent up in the record of the cause. There is an endorsement on the envelop showing that it was received from E.

* *

W. King, April 16, 1904, which is signed by E. C. Bryan, P. M. There is a stamp on the envelop, evidently made by the postmaster receiving the same, containing the following words, abbreviations and figures: "Bryans * Apr. 16, 1904. Texas," which are very distinct. Just after the word "Bryans" are some indistinct impressions of letters. The letters M and two Il's can be observed reasonably well, but at this time no letter can be distinguished between the M and the double 1. The court in approving appellant's bill of exceptions taken to the action of the court in overruling its motion to quash the deposition, states by way of explanation of its action that appellant did not make his motion to quash the deposition until after the parties had announced ready for trial; and that appellee objected to the motion being then considered, upon the ground that it was made too late; and the court further states that the deposition showed that it was taken by E. W. King, a notary public of Cass County. And the court also states in his explanation to said bill of exception that E. C. Bryan was the postmaster at Bryan's Mill postoffice, in Cass County, Texas, but does not state how that information was acquired, whether from the endorsements on the envelop or from extraneous proof.

We are of the opinion that the action of the court should be sustained upon the ground that the motion came too late after the announcement of ready for trial. (Sayles' Rev. Stats., art. 2289; Hill v. Smith, 25 S. W. Rep., 1079; Houston & T. C. Ry. Co. v. Burke, 55 Texas, 323; Coleman v. Colgate, 69 Texas, 88; Neyland v. Bendy, 69 Texas, 711; Missouri Pac. Ry. Co. v. Ivy, 71 Texas, 409.) We are also of the opinion that the motion raised a question of fact for determination by the court upon which it was authorized to receive testimony outside of what was shown by the deposition itself, or the endorsement on the envelop. (Garner v. Cutler, 28 Texas, 176.)

By its third assignment of error, appellant insists that the testimony is insufficient to support the judgment of the court in that the derailment of the engine attached to the car on which appellee was riding at the time he received his injuries, and the derailment of a portion of said car, was not caused by any failure or neglect on the part of appellant or its employes; but that appellant had observed, used and exercised the high degree of care required by law for the safety of appellee, and that if he was injured at all, such injury was the result of an inevitable and inexplicable accident which is one of the risks assumed by passengers, and which can not be foreseen or avoided by carriers. We can not agree to this contention of appellant. It appears from the testimony that appellee's injuries resulted from the derailment of appellant's train; that the tender in front of the engine was turned over on one side of the track, and the engine turned over on the other side, and the front wheels of the coach in which appellee was riding were derailed. Appellee testified that the end of the coach in which he was riding was knocked in, and that he was thrown into the aisle and injured; that when he got up the passengers were "hollering" fire, and the coach was on fire. Appellant's master mechanic testified that he examined the engine and tender after they had been shipped to Tyler after the wreck; that to all appearances the trucks were in first-class condition; that the only thing he found broken about them was two

brake-beams and one brake-rod; that it had beeen known that a brakebeam would drop down and derail a car; that to the best of his recollection these brake-beams were broken in two right in the middle, but they were still hanging intact with, the hangers there for that purpose; that he did not think they could have caused the derailment of the engine. Appellant's roadmaster testified that according to his recollection the ties where the wreck occurred were in very fair condition; that he did not remember if any of them were broken in as many as three pieces. There may possibly have been a few right where the engine turned over. Appellant's foreman of the track repairing crew at the time of the wreck testified that there were a few of what some people would probably call rotten ties in the track but not enough to cause any trouble. That there were no broken beams before the engine turned over, for he saw it before it was wrecked. He saw it up near Sulphur Springs, but did not examine it there to see about the beams; that they were short on section men at the time of the wreck, and that some of the foremen along about that time went out with one or two men to work the road; that some of them did not have over one or two men, and that it was impossible to keep a road up as old as that, with the sections as long as his was, where they furnished the foreman with only one or two men. The road can not be kept up in first-class repair under these conditions; at that time he was allowed five men according to his recollection; that he had three at work that day, and he thought he went out a few days with two men, and maybe he was out one day with one; that a part of the time he had only one or two men, and with that sort of crew he would not say that he could do his full duty. Some of the ties that were broken under the engine were rotten ties. There were some rotten ties there, but he did not remember how many.

Appellee testified that he noticed the condition of the track where the wreck occurred. After the wreck was over and they found the engineer and fireman and were taking them out, he went up the track probably fifty yards and sat down, and the conductor came up and took his name, and said he didn't see anything in the world to cause the wreck, and appellee said: "You don't, well here's what caused it,” and he pulled the spikes out of the ties right there and let them drop back in the ties, and that where they were sitting, appellee showed the conductor a tie rotted square in two; that he noticed the ties where the wreck occurred, they were broken into as many as three pieces, and a sound tie when the trucks runs over it just goes up and down on them if they are sound; that he never saw a right sound tie break. The ties were broken in pieces, they were unsound, rotten ties.

Appellee having shown that his injuries were received in an accident resulting from the derailment of appellant's train, it devolved upon appellant to adduce evidence to show that the accident could not have been avoided by the exercise of the utmost care and foresight on its part. In the case of Mexican Central Ry. Co. v. Lauricella, 87 Texas, 279, Chief Justice Gaines delivering the opinion of the Supreme Court uses this language: "It is a reasonable and sound doctrine that when a passenger is injured by an accident, such as the derailment of a train. at a place where the track and train are entirely under the control of the company, that is to say, where they are not interfered with by any

extraneous force, a presumption of negligence arises, and that in order for the company to exonerate itself from liability for the injury, it must adduce evidence to show that the accident could not have been avoided by the exercise of the utmost care and foresight reasonably compatible with the prosecution of its business." (See also Galveston, H. & S. A. Ry. Co. v. Fales, 8 Texas Ct. Rep., 629, 77 S. W. Rep., 439; Texas & St. L. Ry. Co. v. Suggs, 62 Texas, 323; Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Texas, 371; International & G. N. Ry. Co. v. Thompson, 8 Texas Ct. Rep., 760.)

We are of opinion that the testimony as shown by the record is amply sufficient to support the judgment of the court below, and it is therefore affirmed.

Writ of error refused.

Affirmed.

W. H. HOWARD V. JOHN W. MAYHER ET AL.

Decided May 24, 1905.

1.-Homestead-Judgment Lien-Sale-Proceeds.

Where husband and wife sold their homestead, the latter joining in the deed on the understanding that the proceeds in cash be paid to her and the notes for deferred payments secured by express lien be made payable to her, in settlement of a debt to her separate estate from the community, which was done, neither the purchase money notes remaining in her hands nor the superior legal title remaining in the vendors till their payment, could be subjected, by a proceeding in equity, to the liens of judgments recovered against the husband and duly registered before such sale, though such proceeds were not devoted, within six months from the sale, to acquiring a new homestead.

2.-Same.

So long as the homestead continued, and was not abandoned during the ownership of the husband and wife, no rights were acquired against it by the judgment lien, which was no impediment to a valid sale by the parties asserting the homestead right; and the purchaser, if he acquired the property at a time when the homestead right existed, received it unaffected by the lien, the holder of which had no interest in the homestead so long as that right existed.

Appeal from the District Court of Bowie County. Tried below before Hon. S. P. Pounders.

Chas. S. Todd, for appellant.-The judgment liens owned by appellant, attached to the property immediately upon the registration of the abstracts subject only to the homestead exemptions; and upon the cessation of such exemption by voluntary sale by DeMorse and wife to Mayher, the interest retained by the vendors DeMorse and wife and the proceeds of the sale became eo instanti charged with said liens, subject then to defeasance only by the application of the proceeds of the sale to the acquisition of another homestead within six months after such sale; said liens were superior to the claims or debts of unsecured creditors; and Mrs. DeMorse holds the notes, the proceeds of the sale, Vol. XXXIX. Civil-34.

and the superior title to the lots, charged with and subject to said judgment liens. A judgment lien attaches to a homestead, subject . only to the homestead exemption. It is in abeyance while the exemption exists, but is immediately effective when the exemption ceases. Marks v. Bell, 31 S. W. Rep., 701; Glasscock v. Stringer, 33 S. W. Rep., 677. A statutory lien will follow and attach to the proceeds of the sale of property encumbered by such lien, when title to the property has passed by a sale. Chapman v. Sneed, 17 Texas, 428; Ghio v. Shutt, 78 Texas, 375; Betterton v. Epstein, 78 Texas, 449; Lockett v. Robinson, 20 Law Rep. Am., 67. Before the enactment of article 2396, Revised Statutes, the proceeds of the sale of the homestead were not exempt. Whittenberg v. Lloyd, 49 Texas, 641; Cameron v. Fay, 55 Texas, 62; Chamberlin v. Leland, 94 Texas, 502. Article 2396, Revised Statutes, fixes a period-six months during which the proceeds of the sale of the homestead are exempt, for the purpose of acquiring another home; after the lapse of that time such proceeds cease to be exempt. The sale to Mayher being executory, and Mrs. DeMorse, being owner and holder both of the vendor's lien notes and the superior title, has such interest in and title to the land as that a judgment lien will attach to it. It is "real estate" within the meaning of the statute. Rev. Stats., art. 3289. Judgment lien holder may sue in equity to subject property to judgment lien: Lynn v. LeGierse, 48 Texas, 138; Gaines v. National Ex. Bank, 64 Texas, 18; Cassaday v. Anderson, 53 Texas, 536. When judgment debtor is dead, after having sold the land, judgment lien creditor must sue in District Court to subject land, and can not proceed in Probate Court. Jackson v. Butler, 47 Texas, 427; Schmeltz v. Garey, 49 Texas, 49; Bradford v. Knowles, 86 Texas, 508. Mrs. DeMorse being a simple unsecured creditor of her husband, the judgment lien debt takes precedence and she could only hold subject to the lien. This is elementary.

The simple question here is, can a judgment debtor defeat a judgment lien creditor by a sale of the homestead for the purpose of paying a preferred unsecured creditor with the proceeds of such sale? My contention is that he can not; that the judgment lien is a fixed and vested charge defeasible only by the homestead exemption itself while it exists; and is superior to the claims of general unsecured creditors. If I am correct in these contentions the court below erred in directing a verdict for defendants, but should have instructed the jury to find for the plaintiff; and this court ought to reverse the judgment and here render judgment subjecting the notes and Mrs. DeMorse's right and interest in the land to the judgment lien debt.

Glass, Estes & King, for appellees.-The statute gives a lien on real estate alone, and can not be stretched by construction to cover evidences of debt, secured by a lien on real estate, such as vendor's lien notes, or the defeasible title held by vendors to secure deferred payments of the purchase money, evidenced by vendor's lien notes. The lots on which the vendor's lien was retained by the notes in controversy, being the homestead of the vendors at the time of their sale, and the notes taken in payment therefor having been turned over to appellee, M. L. DeMorse, within six months after the sale of the homestead