Justice Gray, either based on insufficient reasons or upon statutes of local application.

Under the circumstances of this case, we are of the opinion that we should follow the precedent set by the supreme court of Texas in a like case. We are the more inclined to this because it is all that complainant asks, and because, under the facts, the demand of the defendants for an additional homestead, in view of their representation and affidavit to induce the complainant to part with his money, is inequitable, and tends to operate a fraud upon the complainant; and while we recognize the public policy of the state of Texas as declared in its constitution in favor of the exemption of homesteads from forced sales generally, we do not think that the present is a case calling upon us to invent new precedents, or stretch the general rules of equity, in order to give the said defendants a homestead, for which, by the record, they have not paid, and which, under the law, may be, and ought to be, sold to satisfy a just debt.

For these reasons, it is now ordered, adjudged, and decreed that the last paragraph of the decree appealed from be, and the same is hereby, reformed and amended so as to read as follows: Said sale shall be made in the following manner: The said J. J. Dickerson shall first sell all the property covered by complainant's mortgage, as described in the twelfth paragraph of this decree, except the two homesteads of 200 acres each, hereby set apart to Walter Kennedy and Serena K. Walker, to satisfy the sum of $36,504.24, and interest thereon until paid at the rate of 12 per cent. per annum, and all costs as found due to the complainant in the first paragraph of this decree; and, in the event said amount remains unsatisfied, after being credited with the proceeds of said sale, then the said J. J. Dickerson shall sell the homestead of 200 acres herein set apart to Serena K. Walker,. to satisfy so much of the balance due on the decree aforesaid as shall not exceed the sum of $6,558.70 and interest; and, should said 200 acres bring an amount more than $6,558.70 and interest, then that such excess be paid to the defendant Serena K. Walker; and, in the event the decree in favor of plaintiff, as found in the first paragraph hereof, shall not be satisfied by such sale or sales, then that the complainant, Holmes Ivory, do have execution for the balance unpaid against the defendants Walter Kennedy, for himself, and as independent executor of the last will and testament of John F. Walker, deceased, and against Serena K. Walker, independent executrix of John F. Walker, deceased, and for his costs.

It is further ordered, adjudged, and decreed that the decree appealed from as herein amended be, and the same is hereby, affirmed at the cost of the appellees.

McCORMICK, Circuit Judge, (dissenting.) I dissent from the decision rendered in this case and from the views expressed in the opinion of the court. There is no question raised on this appeal as to Mrs. Walker's right under the Texas law to the homestead

of 200 acres claimed by her, subject only to a vendor's lien on 1,203 acres, of which said 200 acres is a definite, separate part, specifically described by its metes and bounds. The trial court so found in her favor, and the appellant does not complain of this finding. It is too clearly supported by the admitted facts and familiar Texas law to admit of question. There is, therefore, no place to bring in any declarations made by Kennedy and Walker in reference to their homestead or the affidavits of said parties and their wives, copied into the court's statement of this case. There is no question of high equities before us, but a very plain matter of intensely Texas law as to the right of the owner of a rural homestead of 200 acres, situated as this 200-acre homestead is, to have the vendor's lien, which covers 1,203 acres, first applied to the 1,003 acres excess. There is no room here for learning drawn from Pennsylvania, Massachusetts, or the high court of chancery to deter mine the relation the right of homestead created by the Texas constitution bears to the common-law right of dower, or the comparative degree of favor the courts administering Texas law should accord the homestead right. For nearly 50 years the people of Texas, by successive and progressive constitutional provisions, and a constant and swelling course of judicial construction on this most prolific of all topics, have marked, illustrated, enlarged, and strengthened the stakes and lines of her public policy in reference to the protection of the homestead of the family against the devices of money lenders and of other creditors, the improvidence of borrowers, and the refinements of lawyers. So far as the case is before us, there is but one creditor here, and there is no room for the exercise of the power of the court as a court of equity to protect the equities of different creditors or incumbrancers. The owners of the homestead are not mortgagors as to it. They are citizens, in the preservation of whose family home the state asserts a jealous interest; so jealous that she has deprived them of all power to charge it by a mortgage, or any other device in the nature of a mortgage, with exceptions not involved in this case. The homestead is not charged or chargeable with a vendor's lien by the head or heads of the family whose home it is. That lien is retained, unless waived, by the vendor, to secure the unpaid purchase price; and giving the evidence of it the form of a mortgage or deed of trust does not create it, or change its essential nature. In the purchase and sale of 1,203 acres of land wholly or partly on credit there is no implied contract that the vendor shall have his lien for the unpaid purchase price of the whole 1,203 acres on that certain 200 acres thereof which the purchaser, being the head of a family, uses as his home, and no subsequent dealings of the parties can have the effect to so charge the homestead 200 acres. It appears that the amount remaining unpaid is not the whole of the purchase price of this 1,203 acres; that, besides accruing interest, one-fifth of the principal of said purchase price had been paid before the 15th November, 1887,-more than one year before appellant's first loan to said purchasers. It also

appears that before making any loan on these lands the appellant had the premises fully inspected, and was then and at all times subsequently fully informed as to all the facts touching these lands, the constituents of these families, their place of actual abode, and their pursuits, and then loaned them money on these lands to the extent of nearly $10 per acre. The presumption is strong, therefore, that in addition to having paid one-fifth of the principal of the purchase money of this 1,203 acres of land purchased by them 21st November, 1881,-more than seven years before they borrowed any money of complainant,-for less than $5 per acre, these purchasers had during these seven years by their industry or other resources greatly improved the market value of these 1,203 acres, or there had been a general advance in the value of such lands in that locality to the benefit of which these purchasers were entitled. On what fact, therefore, or principle of high equity, does this court decline to "invent new precedents, or stretch the general rules of equity, in order to give the said defendants a homestead for which, by the record, they have not paid, and which, under the law, may be, and ought to be, sold to satisfy a just debt?" What just debt? The amount remaining unpaid of the purchase price of 1,203 acres of land, which the sale of the 1,003 acres, not covered by this homestead, might satisfy, and leave this 200 acres discharged from the vendor's lien, and not liable for any part of complainant's debt, however just? Wherefore? Because these heads of the family have given a mortgage or deed of trust on the whole of the 1,203 acres (or on the 1,003 acres, as they might very well do) to secure a loan procured after the purchase of their home? By what law? By the Texas law? Or by some more equitable rule, found in Massachusetts or elsewhere, which cannot recognize the reasons that support "the cases in some of the western. states," where the Texas public policy, in reference to the protection of the homestead, has been fully or partially adopted? Verily, not by the Texas law; for in language as plain as "the way of holiness," placed above the power of the legislature to change or qualify it, self-acting in the highest sense, the Texas law says: "No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money thereof, whether such mortgage or trust

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deed or other lien shall have been created by the husband alone or together with his wife." I submit with the utmost confidence that the supreme court of Texas has set no precedent that will sustain the reasoning of the opinion of the court in this case. With equal confidence I submit that in the case of Pridgen v. Warn, 79 Tex. 588, 15 S. W. Rep. 559, the question we are here called on to decide was not in the mind of either of the parties, or in the mind of the counsel of either of the parties, or in the mind of either of the members of that august tribunal of learned, experienced, and distinguished Texas jurists.

SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD v. KA

LINSKI.

(Circuit Court of Appeals, Fifth Circuit. June 27, 1893.)

No. 123.

1. LIFE INSURANCE-MUTUAL BENEFIT SOCIETIES FORFEITURES -RULES AND

REGULATIONS.

'In the organization of the Knights of Pythias, the Endowment rank is separate from the lodge, and is for insurance purposes only. The constitution provides that when a member withdraws from his lodge, or his membership therein ceases from any cause other than death, all his right and interest in the Endowment rank are forfeited. The constitution also creates a board of control, having entire control over the Endowment rank, subject to restrictions by the supreme lodge, and with power to "enact general laws, rules, and regulations in conformity with this constitution,” and to alter and amend the same, when, in its judgment, the needs of the rank require it. It is also given authority to hear and determine all appeals. Pursuant to this authority, the board enacted that, when a member of the Endowment rank became in arrears to his lodge for an amount equal to one year's dues, he should forfeit his membership in the rank, and render his endowment certificate void. In a case thereafter arising, it appeared that a member of the rank had died, owing more than the prescribed dues, but had not been suspended by his lodge, and, owing to the failure of the proper officer of the lodge to notify the section of the rank to which deceased belonged of the arrears, such section had continued to receive the monthly assessments levied on the rank. The board held that on these facts the certificate had not become void, and the beneficiary was entitled to the insurance money. Held that, where a like state of facts was shown, the court would follow this ruling, as being an authoritative construction of the regulations by the same body that enacted them.

2. SAME-EVIDENCE-ADMISSIBILITY.

The record of this decision of the board of control could not be excluded on the ground that the decision was res inter alios acta, for the decision was a rule established by a competent authority, and was of equal validity with the original enactment which it construed or modified.

This decision must also be held to prevent a forfeiture in the subsequent case on the ground that it was a public and solemn declaration of the order, which would lead a member of the rank honestly to believe that he was complying with all the requirements necessary to keep his certificate good, thus operating by way of estoppel against the order. Insurance Co. v. Eggleston, 96 U. S. 572, followed.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana. Affirmed.

Statement by LOCKE, District Judge:

This was a suit brought in the circuit court by Eugenia Kalinski, as beneficiary of Achille Kalinski, against the Supreme Lodge Knights of Pythias, upon a certificate of membership of the Endowment Rank of the Order of Knights of Pythias, certifying that he had received the rank of the order, and in consideration of certain payments, and the performance of certain conditions, his wife, the beneficiary, would be paid, upon his death, $3,000. In answer, defendant below (plaintiff in error here) set up that one of the conditions of Achille Kalinski's application was that he should keep his lodge dues fully paid, and with that condition he had not complied; that one of the rules of this Endowment rank was that, if "any member of the Endowment rank became in arrears to his lodge for an amount equal to one year's dues, he shall forfeit his membership in the section and said rank, and render

void his endowment certificate;" that Kalinski, the deceased, at the time of his death, although he had paid the assessments to the Endowment rank in full, was in arrears to the Syracuse Lodge, of which he was a member, for more than a year's dues; and that he had forfeited his membership, and the certificate was null and void. A trial being had, and a verdict found for plaintiff for the full amount claimed, a new trial was granted, which also resulting in a verdict for the plaintiff, a writ of error was sued out, in which was assigned as error the refusal of the court to give the charge as asked, and giving the charge as it was given. These alleged errors, and the facts proven in the case, are fully set out in the bill of exceptions, which is:

"Be it remembered that at the trial of this cause before the jury on the 11th day of February, 1893, the defendant, in support of its answer, and plea, offered in evidence (1) the application of Achille Kalinski for membership in Section 363 of the Endowment Rank of the Order of the Knights of Pythias, hereto annexed, and marked 'Exhibit A,' as part of this bill; (2) the constitution of the Endowment Rank of Knights of Pythias of the World, including the revised general laws and regulations adopted by the board of control October 24, 1890, marked 'Exhibit B1,' and 'Exhibit B2,' made part of this bill; (3) also the constitution and by-laws of Syracuse Lodge, No. 50, Knights of Pythias, located at New Orleans, La., marked 'Exhibit C,' and made part hereof. That all of said documents were received in evidence without objection, and were accepted by the court as determinative of the rights of the parties in the cause of action herein. And it further appearing to the court, from the books of account kept by the said Syracuse Lodge, No. 50, and other evidence, that the said Achille Kalinski was indebted to said lodge, of which he was a member, on the 31st day of March, 1891, and at the date of his death, May 24, 1891, in the sum of $12.50, for dues owing by him .to said lodge, under By-Laws, art. 4, p. 46, and article 13, p. 54, of said lodge, which sum was in excess of one year's dues, he was required to pay, as dues, but that he had not been suspended by his lodge for that reason before his death, under the provisions of section 5, art. 16, of the constitution of the lodge, and section 3, art. 14, of the by-laws, although he had received notice from the proper officer of the lodge to pay the same, and had been told to pay the same before the next lodge meeting, but that he died before such next meeting without having paid the same; and it further appearing as a fact, not disputed, that the keeper of records and seals of Syracuse Lodge, No. 50, had, under section 6, art. 4, of the constitution of the lodge, failed to notify the section of the Endowment rank to which Kalinski belonged that he was in arrears, and that the said Syracuse Lodge failed to suspend him on account of arrears, and that the assessments due by Kalinski to the Endowment rank were received in ignorance of the fact that he was so in arrears. and had been tendered back after his death, and after several months subsequent to the application of his widow for payment of policy; and plaintiff having offered the certificate of membership issued to Kalinski upon acceptance of his application, marked 'Exhibit E,' which was accepted without objection,-both parties rested upon the evidence, and counsel for defendant thereupon requested the court to charge the jury as follows: "The jury is instructed that the books of account kept by the Syracuse Lodge, of which the deceased, Achille Kalinski, was a member, are competent to be considered by them as evidence with reference to his indebtedness, at the date of his death, for lodge dues, and that if the jury find from these books of account that he was in arrears, in the absence of proof which opposes, or of proof showing payment of these dues, or error in the account, the entries in said accounts are conclusive proof of the amount shown thereby to be due,'-which charge the court gave, as requested, adding thereto the following: 'I charge the jury as requested by the defendant's counsel, as to the proof of the arrearages due by Mr. Kalinski at the time of his death. The books of defendant are competent proof, and they are uncontradicted, and therefore establish the arrearages as being $12.50.'

"And defendant further requested the court to charge the jury as follows: 'If you find that Kalinski was in arrears, and indebted to his lodge, for dues, at the date of his death, in an amount equal to one year's dues, you must find, as a conclusion from the fact, that he had forfeited his membership in