defendants, from which plaintiffs have appealed.

Both plaintiffs and defendants claim under Wiley Jones as a common source of title. The dispute as to the ownership of the strip of land in suit arose upon the following facts: On March 25, 1878, J. D. Bell was the owner of certain land in the Chamberlin addition to the city of Waco, lying between Fifth and Sixth streets, which ran N., 45 W., a short distance, and then changing course to N., 52 W., the south line of the Bell block running S., 45 W. March 25, 1878, Bell conveyed to one Jackson a strip 25 feet wide on the end of the block, calling for the south line of Marlboro avenue as its north line, running S., 45 W., from Fifth to Sixth streets. At this time stakes were driven down at the intersection of the north line of Marlboro avenue with Fifth and Sixth streets, Bell being present, so as to make the avenue 65 feet wide at Fifth, and 50 feet wide at Sixth, street. The course of the north line of the avenue is not given, but the length of the line is about 350 feet. On the 6th of April, 1878, Bell conveyed to one Angell a tract between Fifth and Sixth streets, the south line being the north line of Marlboro avenue, as marked. This sur vey begins on the west line of Fifth street, and runs from the avenue with Fifth street, which here runs N., 52 W., 192 feet; thence S., 38 W., 350 feet to Sixth street; thence with Sixth street 191 feet, to a point where it intersects the north line of Marlboro avenue; and thence with this line to the begiuning, (course not given.) Immediately after his purchase, Angell fenced the land conveyed to him, and afterwards lived on it; the fence on the north line being almost parallel with the north line of the avenue, and 191 feet from the avenue on Sixth street. June 15, 1885, Angell and wife conveyed the tract to Wiley Jones, copying field notes in the deed from Bell,-the whole tract was then fenced. On July 15, 1885, Wiley Jones conveyed to George Scott a lot, 50 feet wide, on Sixth street, and running back 165 feet N., 38 E. Jones afterwards sold the residue of the Angell survey, and by mesne conveyances defendant Weisburg became the owner. While Jones and George Scott were negotiating, the lot sold to Scott was pointed our to him by Jones, the north line being the fence erected by An gell, 165 feet in length; and the said lines, 50 feet long, were measured, and stakes driven down to mark the corners. The line between these two stakes was pointed out to him as his south line, and the fence as his north line. When he built on the lot, he placed his fence on this south line. The confusion of boundary arises in this manner: If the north line of the Angell tract is run according to course S., 38 W., it will intersect Sixth street some 30 feet south of the point where the fence reaches the street, and the line from such point of intersection S., 52 E., to Marlboro avenue, will be too short by the same distance; whereas, by making the fence the north line of the Angell tract, the distance on Sixth street from the point where the fence intersects it to the avenue will be correct. The court below solves the diffi

culty by making course yield to distance, making the fence the north line, and giving the full distance called thence to the avenue along Sixth street. This gives the land in dispute to defendants. We cannot say but that this conclusion is more consistent with all the facts in evidence showing the intention of the parties at the time of the deed to Angell than the other conclusion insisted on by appellants, -that the course of the north line should prevail. This conclusion, it seems to us, becomes irresistible when applied to Scott's survey. The land was so pointed out to him, and his lines and corners so designated and established at the time of his purchase. He settled upon the lot as thus located, and has since lived upon it. Under the facts, we do not think the court's finding should be disturbed. This disposes of the principal and important question in the case.

We cannot see that the court erred in explaining his findings of fact and law by the map referred to and filed therewith. It is true it was not offered in evidence, though it was used in connection with the testimony as explanatory of it. The court so used it in his findings to render them more intelligible. He could properly have made a sketch of his own from the testimony, and filed it as a part of his findings. Instead of this, he adopted a sketch prepared by one of the witnesses for the purpose, which he had the right to do.

The court's finding that Fifth and Sixth streets run N., 52 W., when in fact they. for a short distance, run N., 45 W., was immaterial, and did not affect the case or the conclusion reached.

The testimony supported the finding that to run the north line of the Angell block S., 38 W., according to call in the deed to Jones, would shorten the west line on Sixth street to the avenue by about 30 feet. Scott could, under the circumstances of his purchase and the designation of his boundaries, only hold the land 50 feet from the fence on Sixth street. We bave already seen that the court was authorized by the testimony in giving preference to the fence as Scott's north line, and in confining his premises to an area of 50 feet in width from the fence measured on Sixth street, and it is unnecessary to repeat what has been said upon that subject in answer to special assignments raising the same question. This finding is the controlling feature in the case, and must stand. It leaves the disputed strip sued for as defendants claim it to be, and necessitates the judgment as rendered by the court below, which is ordered to be affirmed.

FIRST NAT. BANK OF DECATUR (STEVENS, Intervener) v. CLOUD et al. (Court of Civil Appeals of Texas. March 16, 1893.)

JUDGMENTS-RECORDING BY CLERK-EXECUTION SALES-PRIORITIES.

1. Rev. St. 1879, arts. 3153, 3154, provide that each clerk of the county court shall keep a judgment record of all abstracts of judgments

filed for record, and authenticated as required, and deliver to the judgment plaintiffs abstracts of such judgments, duly certified. Article 3155 provides that the abstract shall show "(4) the amount for which the same was rendered, and the amount still due upon the same; (5) the rate of interest, if any is specified in the judg ment." Held, that the statute is complied with when the abstract shows the amount for which the judgment was rendered, exclusive of costs, and the rate of interest which it bears, and states that the total amount remains due and unpaid.

2. In trespass to try title, where the controversy turns on the priority of the judgment and execution liens under which the parties deraign title from the common source, and where the judgment liens are both excluded from consideration, the rights of the parties must be determined by the execution sales, and the purchaser at the first sale has priority.

Appeal from district court, Cooke county; T. J. Brown, Special Judge.

Trespass to try title by the First National Bank of Decatur against Isaac Cloud and others, in which Charles M. Stevens intervened. From a judgment for the intervener, plaintiff appeals. Affirmed.

Donald & Cobb, Sarlls & Hill, and C. B. Stuart, for appellant. Davis & Harris, for appellees.

STEPHENS, J. This suit was originally brought by appellant to recover from Eppie Robertson and G. B. F. Maxwell certain real estate situated in Cooke county. Charles M. Stevens intervened in the suit, claiming the property in controversy. Isaac Cloud was the common source of title. The controversy turns upon the priority of the judgment and execution liens under which appellant and appellees respectively deraign title from the common source. The record contains conclusions of fact which we adopt, with the qualification stated below. As the judgment lien under which appellees claim is prior in time to that of appellant, its validity presents the first question for determination. This judgment was obtained by Charles M. Stevens in the federal court at Dallas, Tex., against Isaac Cloud and others; and the abstract, which was duly filed, recorded, and indexed in the record of abstracts of judgments of Cooke county, reads as follows: "In the circuit court of the United States for the northern district of Texas, at Dallas, I, A. J. Houston, clerk of the circuit court of the United States for the northern district of Texas, at Dallas, do hereby certify that in said court, on the 22d day of May, 1885, the plaintiff recovered judgment against the defendants, A. J. Addington, Isaac Cloud, and Z. T. Addington, for the sum of $11,589.30, all of which said judgment is yet due, with interest at the rate of 12% per annum from its date, in cause No. 767, and styled 'Chas. M. Stevens vs. A. J. Addington et al.,' all of which appears from the records of said court." Then follows the authentication of the clerk in due form. The sole objection taken to the sufficiency of this abstract, upon which the trial court beld it to be invalid, was that it did not show the amount of costs recovered, it being made to appear by the proof that the costs taxed in that case amounted to $61. In

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| passing upon an abstract very similar to this,-one made by the same clerk,-which recited, after giving the amount of the judgment and the rate of interest, without stating the amount of the costs, that "all of which said judgment and costs is yet due and unpaid," the federal supreme court, (Chief Justice Fuller delivering the opinion,) in a recent case disposed of the objection raised, that it did not show the amount due thereon, by a single sentence, as follows: "The only ground on which this abstract and index could be held insufficient was that the names of the plaintiffs were not given in full in either abstract or index." The opinion reviews the decisions of our supreme court construing the judgment-lien statute, and concludes that the names of all the members of a plaintiff firm need not be shown either by the abstract or index. Cooke v. Avery, (Sup. Ct. U. S.; decided 23d day of January, 1893,) 13 Sup. Ct. Rep. 340. Without determining whether our courts should follow that decision in this respect, we are of opinion that it is correct in holding that the statutel is substantially, if not literally, complied with, so far as stating the amount due upon the judgment is concerned, when the abstract shows the amount for which the judgment was rendered, exclusive of costs, and the rate of interest which it bears, and states that the total amount remains due and unpaid. It seems to us that it would at least create a lien for that amount, if not for the amount of the costs. If this conclusion be correct, it will lead to an affirmance of the judgment.

In the court's second findings of facts, in passing upon the abstract and index of the judgment subsequently rendered and recorded against Cloud and others under which appellant claimed, the only objection sustained was that it was indexed under the letter B, as follows: "Bank First National of Decatur." In addition to this finding, it appears from the statement of facts that the record of this abstract did not contain the authentication of the clerk, if, indeed, the abstract itself had been certified. Without passing upon the merits of these objections, we have reached the conclusion that if, by reason of a stricter construction than we have applied, the record of the Stevens abstract be held bad, that of the Decatur bank must, for the same reason, be held invalid also. If, then, the judgment liens be both excluded from consideration, and the rights of the parties be determined by the execution sales under which they claim respectively, the judgment must be affirmed, because the levy and sale under the Stevens judgment antedated the bank's levy

'Rev. St. 1879, arts. 3153, 3154, provide that each clerk of the county court shall keep in his office a "judgment record," in which he shall record all abstracts of judgments filed for record and authenticated as required, and deliver to the judgment plaintiffs abstracts of such judgments, duly certified. Article 3155 pro

vides that the abstract shall show "(4) the amount for which the same was rendered, and the amount still due upon the same; (5) the rate of interest, if any is specified in the judg ment."

A conveyance of personal property by a debtor to one of his creditors, with intent of defrauding his other creditors, is invalid, if the secured creditor participates in the debtor's fraudulent intent, though the claim secured is a bona fide debt.

Appeal from district court, Grayson County; P. B. Muse, Judge.

Action by H. G. Symonds against A. W. Mixon and others for an alleged unlawful levy on the stock in trade of Emmott Bros., on which plaintiff had a chattel mortgage. From a judgment in plaintiff's favor, defendants appeal. Reversed.

I. M. Standifer, A. G. Mosely, and Head & Dillard, for appellants. C. B. Randell and G. G. Wright, for appellee.

STEPHENS, J. Emmott Bros., doing business at Denison, Tex., made a chattel mortgage upon their entire stock in trade to their friend, H. G. Symonds, to secure certain promissory notes held by their sister and bookkeeper, E. Louise Emmott, against them, and an attorney's fee charged for the preparation of the instru⚫ ment. The goods were seized under at. tachment process, and appropriated by Waples, Platter & Co. to the payment of a debt due them from said firm. From a judgment against them, and the officer who levied the writ, as well as against certain sureties, for the value of the goods, this appeal is prosecuted.

Appellants made the issue that the mortgage had been executed with intent to hinder, delay, and defraud the creditors of Emmott Bros., disputing the validity and amounts of the debts secured. In submitting this issue to the jury, the following, among other charges of which appellants complain, were given: "Fourth. The chattel mortgage read in evidence gave to the plaintiff the right to the control and possession of the property therein mentioned for the purposes set forth in such mortgage, unless you find and believe from the evidence that the debts mentioned in said mortgage, and to secure the payment of which the same was executed, were, either in whole or in part, simulated, false, and fictitious. Fifth. A debtor in failing circumstances has the right to transfer his property to a creditor to whom such debtor owes a real, actual, valid, and subsisting debt; and such transfer will not be regarded as fraudulent even though the creditor knew that the debtor had made the same with the intent to defraud his creditors. In other words, a debtor may convey to his creditor, or to some one in trust for such creditor, even though

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the debtor be insolvent, property sufficient to pay off the debt of such creditor, although the creditor knows that the same is done with a fraudulent intent on the part of the debtor, and although by such transfer other creditors are not protected, provided that the creditor for whose benefit the transfer is made holds against the debtor a real, genuine indebtedness.” That these charges were erroneous, and will require a reversal of the judgment, is made apparent by the following proposition of appellants, which we believe to be sound, to wit: "When the pleading and the evidence fairly raise the issue as to whether a conveyance of personal property made by an insolvent debtor, in trust, to secure a debt, is made for the purpose of hindering, delaying, and defrauding creditors, and the evidence tends to show participation in the fraud on the part of the secured creditor, any charge which makes the validity of the instrument depend solely upon whether or not the claim secured is a bona fide debt is error." the doctrine announced in the charge be the law, then may a failing debtor, who has embarked in business on the borrowed capital of a relative, as seems to be claimed in this case, be enabled to steer clear of the ordinary perils of business by making a conveyance of his stock in trade to a friend to secure the debt of the relative, and at the same time to fraudulently hinder and delay other creditors till their debts can be compromised, or the business enterprise renewed in some other name. While it may be both kind and natural for a sister to aid a brother in this way, it is not believed to be the law. But for the fact that the appellants, in the manner of pleading, seem to have assumed the burden of proof on the issue as to the validity of the alleged debts, the second paragraph of the charge might require a reversal of the judgment. Tillman v. Heller, 14 S. W. Rep. 700, 78 Tex. 597. On account of the error announced in the fourth and fifth charges, and applied in subsequent portions of the charge, the judgment will be | reversed, and the cause remanded.

HEAD, J., disqualified, and not sitting.

HENSON v. PHIPPS et al. (Court of Civil Appeals of Texas. March 16, 1893.)

GUARDIAN'S SALE-RIGHTS OF PURCHASER.

A purchaser of an undivided interest in land at a guardian's sale under order of court cannot object to the setting apart to one of the wards, after attaining majority, of her interest in the remainder, though the other wards might object on the ground that the guardian's sale was made at her instance in order to convey to the purchaser her interest in the land.

Appeal from district court, Jack county; J. W. Patterson, Judge.

Trespass to try title by Ida Phipps and Sherman Phipps against J. T. Henson. From a judgment in plaintiffs' favor, defendant appeals. Affirmed.

Nicholson & Nicholson, for appellant

the judge who tried the case, he should except to the conclusions, and have his exceptions noted in the judgment entry. Gen. Laws 1879, p. 119. When such exception is made and noted, the adverse party must take notice of it, and if, in his opinion, the conclusions of fact or law are not so full or accurate as they should be for his own protection, it will be his right to have a statement of facts from which the judgment may be sustained, or in any other respect to have a complete presentation of the case. If no exception to the conclusions of law or judgment of the court is noted, unless the failure to except be waived, or not insisted on, the only inquiry will be whether the pleadings justify the judgment. Any other rule would often cause the reversal of judgments which would be affirmed if the case was fully presented." In this case the failure to except is not waived, and we are of opinion that the pleadings are sufficient to justify the judgment rendered.

There are some other assignments of error, which relate to the admission of eridence, but we believe that, in the absence of a statement of facts, they are not of a nature that can be considered by us, even if appellant had excepted to the judg. ment. Bupp v. O'Conner, 21 S. W. Rep. 619, (decided by us at this term;) Lockett v. Schurenberg, 60 Tex. 610. Finding no error in the judgment of which plaintiffs in error can complain, the judgment of the court below is affirmed.

FAULK, Special Judge. This is a suit for damages, brought by Mrs. Mary McDonald, for herself, as the surviving widow of Dr. Alexander McDonald, deceased, and as next friend of the other plaintiffs mentioned in the petition, on account of the death of Dr. McDonald, occasioned by the alleged grossly negligent acts and conduct of defendant, its employes and servants, on the 30th day of June, A. D. 1886, in the town of Hutto, in Williamsou county, Tex. This case has been passed on in the higher courts twice heretofore. The first decision is found in 75 Tex. 41, 12 S. W. Rep. 860; and the last time by this court, which opinion will be found in 20 S. W. Rep. 847. At both times the case was reversed and remanded for another trial. On the 1st day of December, 1892, a motion was filed by appellee, the railroad, for a rehearing, which was granted; and this is now the third time we are called on to pass on this case.

We have examined the questions raised in the record, and urged by distinguished and able counsel in their briefs, as wel: as the opinion delivered by this court, with a great deal of interest and care. We will not now restate the facts, as they are, we think, sufficiently embodied in the former decision rendered by the court of civil appeals, and will not now revise said decision, adopting it as the law on the points raised, and will refer to it only as will be necessary to a proper understanding of the case.

The case was reversed by this court on two propositions involving errors in the charge of the court below: (1) In charging the jury that "the law did not impose any rule as to the rate of speed of such trains." (2) In charging the jury that "it was the duty of the servants in charge of the train to ring the bell or blow the whistle on approaching a crossing on the road, but a failure so to do would not relieve a person in danger from the duty of using his senses to ascertain the presence of the approaching train; and, if such person was aware of the presence of the train, the failure of the servants and agents of defendant to ring the bell or blow the whistle would be immaterial, "-the court holding that the two propositions embodied therein were erroneous, when applied to the facts of this case, and calculated to mislead the jury. The reasons of the court for their decision, as well as the authority relied on, will he found in the opinion, to which we refer, and fully adopt. It was thought on the former hearing of this case that for the errors mentioned the case would, of necessity, be reversed and remanded, and that the emergency did not exist for noticing further other alleged errors in the record; but in the motion for a rehearing made by appellee's counsel, as well as in the reply thereto by appellants' counsel, it is apparent that both are anxious that this court shall pass on at least one other important question in the record, and it is involved in the refusal of the court to give the following first special charge asked by plaintiff's counsel, which is assigned as error, viz.: "If, from the testimony in the case, you find that the servants and employes of the defendant were guilty of gross negligence and recklessness in the operation of the train referred to in plaintiffs' petition, aud that such gross negligence and recklessness was the proximate cause of the death of Dr. McDonald, you will return a verdict for the plaintiffs, as under such circumstances the doctrine of contributory negligence would not apply." In view of all the facts of this case, we are not prepared to say but what this charge, or some such similar one, should have been given to the jury. We are indebted to the able counsel, both for appellants and appellee, for their lucid presentation of the question, as well as to their extended research for authorities, and their diligence cannot be too highly commended.

The vital point raised, and to be considered here, is: Do the facts and circumstances in this case authorize a charge which would, in effect, deprive defendant of the benefits of its plea of “contributory