On Motion. for Rehearing.
As was pointed out in our original opinion, 'the record fails to disclose that a trustee in bankruptcy was ever appointed in the bankruptcy proceedings. We are unwilling to take statements and expressions in the 'briefs of all or of-any of the parties as evidence, unless it appears that the parties have agreed as to the existence of the fact.
To support appellee’s plea in bar, the proceedings in the bankruptcy court are attached thereto and none refers to the appointment of a trustee, or to the qualifying and acting of a trustee. The purported finding by the trial court, in its judg*516ment, that the property in controversy “was duly set aside to him (appellant) by the trustee in said bankruptcy proceedings,” is without evidence to support it and is fundamentally erroneous.
We do not believe that damages sustained to the exempt homestead are properly classed with rents and revenues therefrom.
The damages sued for in this cause constitute a destruction of the exempt property.
Accordingly, the motion for rehearing is overruled.