(248 S.W.) surer of the tractability of every team and au- [ Appeals is adopted, and will be entered as tomobile driven on its streets. This exceeds the judgment of the Supreme Court. the duty imposed upon a municipal corporation in relation to the care of its streets. The facts make a plain distinction between the cases above noticed and the one before us." After reviewing a number of authorities from Washington and other states which the court held to be in harmony with its holding of nonliability, the court further say: "In each of those cases, it is true, was involved the excessive force of a runaway team. Such a contingency, however, is no more extraordinary nor less to be anticipated than the eccentricities of an unmanageable automobile." [9] We think the principles announced in these cases require a holding that the city is not liable in the present case. Whatever may have been the duty of the city toward pedes trians using the sidewalk adjacent to the ravine, we think there can be no question but that the street was reasonably safe for ordinary travel by motor or other vehicles. The roadway was 40 feet wide and in good condition. The slight curve to the right at the south side of Vine street would tend to cause travelers by vehicle to turn away from rather than towards the ravine, if, in fact it would have any effect at all upon such traffic. The street was practically level, and the driver was familiar with it. We do not think the situation was such as to require the city to erect any character of barrier as a protection to those traveling in vehicles upon the roadway; and especially do we not think such duty, if it had existed at all, could be extended to the character of barrier which would be necessary to stop an ungovernable automobile. It may also be very properly said, in this connection, that it would be entering the field of doubtful speculation to attempt to determine whether a barrier sufficiently strong to prevent the car from falling into the ravine would not itself have wrecked the car and produced like injuries to those which Mrs. Maxwell suffered. But, aside from this, we think there was no duty to guard against the accident in question, and consequently no liability. The breaking of the steering gear, and not the failure to erect a barrier, was the proximate cause of the injuries sued for, in our opinion. In fact, we think the lack of barrier was, in legal contemplation, not a cause at all, but merely a fortuitous condition. We approve the holding of the Commission of Appeals on the question discussed in its opinion. ADAMS v. WILLIAMS et al. (No. 391-3591.) (Commission of Appeals of Texas, Section A. Feb. 28, 1923.) 1. Trial 36-Held not necessary under pleadings to prove transfer of notes. Where in an action on a foreign judgment, both plaintiff and defendant pleaded that vendor's lien notes had been transferred by defendant to a third person, it was not necessary for either party to prove the transfer, and notwithstanding the notes were not introduced fact made constituted prima facie proof of it. in evidence, testimony that a transfer was in 2. Bills and notes 330-Parol transfer held sufficient to entitle transferee to protection as innocent holder. Prior to passage of the Negotiable Instruments Act in 1919 (Vernon's Ann. Civ. St. Supp. 1922, arts. 6001-1 to 6001-197), a parol transfer of vendor's lien notes was sufficient to entitle transferee to protection as an innocent holder. 121-Creditor, 3. Fraudulent conveyances though knowing of intent to prefer him, may receive payment of debt. Under Rev. St. arts. 3966, 3967, a creditor may receive payment of an honest debt in property of his debtor, though he may know at the time that the debtor's intent in making payment is to prefer him and to place the property beyond the reach of other creditors, provided that no more property is taken than is reasonably necessary to pay his debt. 4. Bills and notes 359-Taking note in payment of pre-existing debt is taking in due Under Rev. St. arts. 3966, 3967, a surren der of two unsecured notes held by a creditor in consideration of transfer to her of two vendor's lien notes was a "consideration deemed valuable" within the meaning of article 3967. [Ed. Note. For other definitions, see Words We conclude, therefore, that the judgments and Phrases, First and Second Series, Valuable of the district court and Court of Civil Ap- Consideration.] peals should be reversed, and judgment ren- 6. Garnishment 105-Service of writ imdered in favor of the city of Dallas. CURETON, C. J. The judgment recommended in the report of the Commission of pounds only debts garnishee owes defendant. The service of a writ of garnishment only impounds such debts as the garnishee in fact owes defendant in garnishment at the time. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-43 7. Bills and notes 313-Registration act not applicable to assignment of notes as such. Vernon's Sayles' Ann. Civ. St. 1914, art. 6824, providing that certain sales shall be void as to creditors and purchasers unless registered, has no application to the assignment of promissory notes as such. 8. Vendor and purchaser 265 (2)-One rely. ing on record notice of release from lien is protected thereby. Vernon's Sayles' Ann. Civ. St. 1914, art. 6824, providing that certain sales shall be void as to creditors and purchasers unless registered, applies to transactions in which title to land is involved, and, where the record shows existence of a vendor's lien, all persons dealing with such land are charged with notice thereof, and, if it shows a valid release from the record owner of the lien, persons acting in good faith without notice to the contrary may rely thereon and will be protected. 9. Trusts 136/2-Property of trust estate in trustee's hands not subject to trustee's debts. Property belonging to a trust estate in the hands of a trustee, in which property such trustee has no personal interest, is not subject to seizure and sale for his individual debts. 10. Wills 687 (1)—Vesting legal title during life of first taker in trustee does not affect devise over. The right of a testator to give property to one devisee with full power of use, sale, and appropriation, and at the same time, by a devise over to another, vest in such other a good and valid title to so much of said property as shall remain undisposed of at the death of the first taker, was not affected by the fact that the will vested the legal title during the life of the first taker in the trustee. thorized in his discretion to apply a part of the corpus of the fund to beneficiary's use in accordance with the terms of the trust, nor that trustee was authorized or required to turn the entire fund or property over to the beneficiary absolutely at some fixed future time. 14. Wills 674-Instrument creating spend. thrift trust need not assign reason therefor. It is not necessary that the instrument creating a spendthrift trust shall assign any reason for such provision, nor that the beneficiary shall be in fact improvident, incapable, or a spendthrift. GALLAGHER, P. J. This case is before us on questions certified to the Supreme Court by the Honorable Court of Civil Appeals for the Second District. The parties are designated as in the trial court. The certificate sets out the facts hereinafter recited. J. Q. Adams, on the 15th day of April, 1918, instituted suit in the district court of Tarrant county against W. N. Williams and his wife, M. E. Williams, to recover on a judg 11. Wills 671-Not necessary to declare ment in the sum of $2,242.50, with interest trust in express terms. and costs, which judgment he had thereto fore recovered against them in the state of Oklahoma. He alleged that during the pend It is not necessary that a will creating a trust should so declare it in express and unequivocal terms, it being sufficient if it appears reasonably clear from the entire instru-ency of said suit in the state of Oklahoma ment, construed in the light of attending circumstances, that such was the intention. 12. Wills 682 (2)-Testatrix's purpose held to provide for sister's welfare, but to deprive her of right to dispose of property. Testatrix's will vesting legal title to an estate in a trustee with power to sell and convey the title vesting in him in trust for testatrix's sister and requiring him to use the whole property for her welfare and comfort, with devise over of any portion of the estate unused and unappropriated at devisee's death, held to show a purpose to provide for the application of testatrix's property to promote the welfare and comfort of devisee, but to deprive her of control over or right to dispose of it and to exempt it from creditor's claims. 13. Wills 674-Purpose of spendthrift trust not defeated by permission to apply corpus to cestui que trust's benefit. The purpose of a spendthrift trust is not defeated by the fact that the trustee was au the defendants sold certain lands in Tarrant county, Tex., and received as a part of the consideration therefor two certain promissory vendor's lien notes for the sum of $800 each, executed by their vendee and payable to the order of W. N. Williams; that their said vendee resold the property to one Renick, who assumed the payment of said notes, and that both said Renick and said original vendee were entitled to protection as innocent purchasers for value without notice; that defendants transferred said two notes to Mrs. Sarah E. Cooper; and that she took said notes as assignee thereof without paying any valuable consideration therefor and with notice that defendants intended, in transferring the same, to defraud plaintiff and other creditors, and that she joined in said intent. Mrs. Cooper was a widow. She was made a party defendant. Writs of garnishment were sued out by plaintiff and served on her For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) and on said Renick to subject the money due on said notes to plaintiff's debt. Said Renick deposited the amount due on said notes with the clerk of the court to abide the final disposition of the case. The defendants denied said allegations of fraud and alleged that said notes were transferred to Mrs. Cooper for a valuable consideration without notice on her part of any fraudulent purpose therein. Mrs. Cooper died before the trial, leaving a will which was duly probated, in which W. N. Williams was named as executor and trustee, and in which said Mrs. M. E. Williams was made principal beneficiary with devise over to others of any of the estate of testatrix which might be on hand at her death. The provisions of this will will be set out more fully hereafter. Both plaintiff and defendants amended their pleadings after the death of Mrs. Cooper and asked for relief appropriate to the changed situation resulting from her death. Other facts contained in said certificate will be set out hereafter. The case was submitted to a jury on special issues, in response to which they found in substance that said transfer of said notes was an actual bona fide transaction and that Mrs. Cooper parted with a valuable consideration therefor; that said transfer was not made for the purpose of placing the same in Mrs. Cooper's name and hands to cover the same up, or to defraud creditors; that defendant Williams did not make said transfer with intent to beat or defraud his creditors; and that Mrs. Cooper did not know of any fraudulent intent on his part at the time. Judgment was rendered on the verdict in favor of plaintiff against both Williams and his wife for the debt sued for, but denying plaintiff the right to subject the proceeds of said notes, or any other property belonging to Mrs. Cooper's estate, to the payment of said judgment. Plaintiff appealed. Pending consideration of said appeal, said court certified to the Supreme Court for determination the following questions: "1. Did the testimony of W. N. Williams and Mrs. Sarah E. Cooper, to the effect that the notes in controversy had been transferred by the former to the latter, constitute prima facie proof of such transfer as a matter of law, in the absence of the introduction by the defendants of the notes themselves? Neither of said witnesses testified how the transfer was made, whether by written indorsement or by delivery only, and all parties alleged that said transfer was in fact made. This question is certified at the special request of counsel for appellant. 2. Did the surrender by Mrs. Cooper of two unsecured notes held by her against W. N. Williams, in consideration of the transfer to her of the two notes in controversy, constitute a consideration deemed valuable in law within the meaning of article 3967? "3. Would the surrender of those two notes be a sufficient consideration to vest title to the two notes in controversy in Sarah E. Cooper under the registration statute, article 6824, as against the lien fixed by service of the writ of garnishment mentioned? "4. Did the will of Mrs. Sarah E. Cooper have the effect to vest title to the property therein devised in such a manner as to render it, or any part of it, subject to execution for the payment of plaintiff's former judgment against either W. N. Williams or Mrs. M. E. Williams?" [1] The two vendor's lien notes above referred to were not put in evidence. It does not appear whether they were indorsed by the payee at or prior to the time of transfer or not. The testimony showed that they were placed in the hands of an attorney for collection by Williams before Mrs. Cooper's death. Both plaintiff and defendants alleged affirmatively in their pleadings that said notes were transferred by Williams to Mrs. Cooper.. [2] In the state of the pleadings it was not necessary for either party to prove the transfer of said notes. While the consideration for such transfer and the purpose which actuated the parties in making the same were in issue, both parties to the suit admitted in their pleadings that a transfer was in fact made. Both parties to the transaction testified that a transfer was in fact made. Ogden v. Bosse, 86 Tex. 336, 344, 24 S. W. 798; Railway v. De Walt, 96 Tex. 121, 134, 70 S. W. 531, 97 Am. St. Rep. 877. It was not necessary to show that the notes were regularly indorsed by the payee to sustain defendants' plea of innocent purchaser. This transaction occurred before the passage of the Negotiable Instruments Act by the Legislature in 1919 (Vernon's Ann. Ciy. St. Supp. 1922, arts. 6001-1 to 6001-197). Under the law as it existed at that time, the form of the transfer, and whether written or verbal, was immaterial. A parol transfer was sufficient, other necessary conditions existing, to entitle the transferee to protection as an innocent holder. Word v. Elwood, 90 Tex. 130, 131, 37 S. W. 414; Bank v. Kenney, 98 Tex. 293, 299, 83 S. W. 368. We answer the first question certified as follows: 1. In the state of the record as above shown, the testimony of said witnesses to the effect that the notes in controversy had been transferred from Williams to Mrs. Cooper constituted prima facie proof of said transfer, notwithstanding said notes were not introduced in evidence. After the sale of the land above referred to, neither Williams nor his wife had any property in this state subject to execution, nor, so far as the record shows, any credits Williams was insubject to garnishment. debted to Mrs. Cooper at the time in the principal sum of $1,650 exclusive of interest, and such indebtedness was evidenced by two unsecured promissory notes. While collec tion of said notes could not have been en- vendor's lien notes in controversy were not forced by law, it seems Williams was abund-negotiable, nor that the transfer of the same antly able to pay the same. It also appears to Mrs. Cooper was after maturity. The that Williams did not intend to pay plain- jury found that Mrs. Cooper did not at the tiff's debt unless he was forced to do so. time she received the transfer of said notes The consideration for the transfer by Wil- know of any fraudulent intent on the part liams to Mrs. Cooper of the two vendor's of Williams in making the same. She relien notes was the surrender by her to him ceived them in satisfaction of an indebtedof his said two notes to her and the ex-ness slightly in excess of the amount of the tinguishment of the debt evidenced thereby. same which Williams owed to her and surThe substance of article 3966 of the Revised Statutes, so far as applicable to the facts under consideration in this case, is that every assignment or transfer of personal estate with intent to hinder, delay, or defraud creditors from what they are or might be lawfully entitled to, shall as to such creditors be void. Said article further provides that the title of a purchaser for a valuable consideration without notice of a fraudulent intent on the part of his grantor shall not be affected thereby. Article 3967 of said statutes, so far as applicable, provides in substance that every assignment or transfer made by a debtor which is not upon consideration deemed valuable in law shall be void as to prior creditors unless it appears that such debtor was then possessed of property within this state subject to execution sufficient to pay his existing debts. rendered to him his notes evidencing the indebtedness so discharged. The taking in good faith of a negotiable promissory note in payment of, or as a credit on, a pre-existing debt, is a taking in due course of business, and the person so taking the same is a bona fide holder for value. Herman v. Gunter, 83 Tex. 66, 69, 18 S. W. 428, 29 Am. St. Rep. 632; Heffron v. Cunningham, 76 Tex. 312, 318, 319, 13 S. W. 259; Blum v. Loggins, 53 Tex. 121, 136; Gaston et al. v. Campbell Co., 104 Tex. 576, 582, 140 S. W. 770, 141 S. W. 515; Greneaux v. Wheeler, 6 Tex. 515, 527, 528; 2 R. C. L. p. 1057. [5] In view of the authorities above cited, we answer the second question certified as follows: 2. The surrender of said two unsecured notes held by Mrs. Cooper against Williams in consideration of the transfer to her of the two vendor's lien notes in controversy constituted a consideration deemed valuable in law within the meaning of article 3967 of the Revised Statutes. [3] It is settled law in this state that a creditor may receive payment of an honest debt in property of his debtor, though he may know at the time that the debtor's in- There having been, under the facts certltent in making the payment is to prefer him fied, a valid assignment of the two vendor's and to place the property beyond the reach lien notes in controversy to Mrs. Cooper, the of other creditors, provided that no more lien securing the same and the right to enproperty is taken than is reasonably neces- force such lien by foreclosure upon the land sary to pay his debt. Every payment of a and the sale thereof, if necessary, passed to debt by an insolvent, whether the payment her with the debt evidenced by said notes. be made in money or property, tends in a Such lien was but an incident to the debt and popular sense to hinder, delay, or defraud followed it into her hands by operation of other creditors in the collection of their re- law. She did not, however, by said assignspective debts. In the absence of a law de- ment, acquire any title to the land nor posclaring preferences invalid, every debtor has sessory right thereto. Russell v. Kirkbride, the legal right to pay one or more of his just | 62 Tex. 455, 456; Hamblen v. Folts, 70 Tex. debts with any money or property he has. 132, 135, 7 S. W. 834. The intent to hinder, delay, or defraud cred- [6, 7] After such assignment, Renick owed itors in the sense inhibited by above statutes cannot exist when the purpose and effect of the transfer of property is to apply it at its fair value to the satisfaction of a just debt and it is so received by the debtor. El lis v. Valentine & Son, 65 Tex. 532, 546-548; Lewy v. Fischl, 65 Tex. 311, 321; Greenleve, Block & Co. v. Blum, 59 Tex. 124, 126, 127; Harness Co. v. Schoelkopf & Co., 71 Tex. 418, 422-423, 9 S. W. 336; Schneider v. Sansom, 62 Tex. 201, 203, 50 Am. Rep. 521; Sweeny v. Conley, 71 Tex. 543, 546, 9 S. W. 548; Hamburg v. Wood & Co., 66 Tex. 168, 175, 18 S. W. 623. The distinction in such cases between a creditor and a purchaser is distinctly recognized. Lewy v. Fischl, supra; Greenleve, Block & Co. v. Blum, supra. [4] There is no contention that the two the debt evidenced by said notes to Mrs. Cooper and not to Williams. The service of a writ of garnishment impounds only such debt or debts as the garnishee in fact owes to the defendant in garnishment at the time. It does not impound debts owed by the garnishee, which, prior to the service of the writ, have passed by valid assignment from the defendant to another. This is true, whether the garnishing creditor has any notice of the assignment or not. Article 6824 of our Registration Statutes (Vernon's Sayles' Ann. Civ. St. 1914) has no application to the assignment of promissory notes as such. Tirrell v. Canada, 25 Tex. 455; Smith v. T. & P. Ry. Co. (Tex. Civ. App.) 39 S. W. 969, 971, 972; Amarillo Nat. Bank v. Panhandle Tel. & Tel. Co. (Tex. Civ. App.) 169 (248 S.W.) S. W. 1091, 1092; Moran v. Wheeler, 87 Tex. [ "I also will and bequeath to my said trustee, 179, 183, 27 S. W. 54. [8] Said article does apply to transactions in which the title to land is involved. In such cases where the record shows the existence of a vendor's, or other, lien, all persons dealing with such land are charged with notice thereof. If the record shows a valid release from the record owner of the lien, such persons, acting in good faith without notice to the contrary, have a right to rely thereon and they will be protected in so relying. Moran v. Wheeler, 87 Tex. 179, 183, 184, 27 S. W. 54. We therefore answer the third question certified as follows: 3. The surrender of said two notes by Mrs. Cooper to Williams was a sufficient consideration to vest title to the two notes in controversy in her and to authorize her to enforce the lien securing the same, and such right was not affected by the provisions of said article 6824 by reason of the service of the writ of garnishment on the debtor, Renick. The will of Mrs. Cooper, under which defendants claim, is as follows: "1. I will and direct that all of my just debts be paid by my executor and trustee hereinafter appointed. "2. After the payment of my just debts, I will and bequeath all of the property that I may die seized and possessed, both real and personal, to W. N. Williams in trust for the following purposes, to wit: In trust for my beloved sister, M. E. Williams, who has taken care of me and patiently looked after my welfare and interest. W. N. Williams, for the use and benefit of my beloved sister, M. E. Williams, all real estate that I may own or have any interest in at the for the sole and only use and benefit of my time of my death, to be used by my said trustee sister, M. E. Williams. I empower my said trustee and executor, W. N. Williams, to sell any and all of said real estate he may think proper in his own judgment, and to make valid conveyances of the same to such persons and upon such terms and conditions as he may desire, in which event such proceeds are to be used for the comfort and use only of my said sister, M. E. Williams, and in the event any of such funds remains on hand, and are in the possession of my said trustee, at the time of the death of M. E. Williams, such funds and property, and also such remaining real estate bought with the funds of myself, shall be inherited equally by and between all of my surviving sisters. "I especially will and bequeath my little home place at Sunset, in Montague county, Texas, ter, M. E. Williams, with the request that they to W. N. Williams, in trust for my beloved sisuse and occupy the same, or if my trustee desires and thinks best and proper, express authority is hereby given him to sell and convey the same and to pass title thereto to any one he desires, and upon such terms as he may to be by him spent in behalf of the welfare desire, with the proceeds arising therefrom, and comfort of my said sister, M. E. Williams. by my said executor and trustee for the use "It is my will and desire that my sister, M. E. Williams, shall have no right in the property herein willed to her, save and except for the purposes as above mentioned, and my trustee there shall have no power or authority or interest therein, save and except the rights and powers herein conferred upon him. It is "Said W. N. Williams, as such trustee, shall my intention herein that all of my said propuse said property for and in behalf of my be-erty shall be used in the manner as aforesaid, loved sister, only, and in the following manner, to wit: He shall have the right, power and authority to pay out any such sum or sums of money that I have, that in his judgment he may deem proper for the interest, welfare or comfort of my said sister, M. E. Williams. My said trustee, W. N. Williams, whom I hereby appoint as such, shall have the power and authority to collect such outstanding obligations that may be owing to me at the time of my death, and to receive and receipt for the money, or to execute any release or releases that may be necessary therewith, and in the event of the or and benefit of my sister, M. E. Williams, to be of him as such executor or trustee, and that "In the event of the death of said W. N. Wil collection of any sum or sums of money as aforesaid, my said named trustee shall use such sums only for and in behalf of my said. sister, M. E. Williams, and he shall have the power and authority to spend such sum sums of money as, in his judgment, he deems best and proper, for the welfare and comfort of my said sister, M. E. Williams, and in the liams before the death of my sister, M. E. Wilevent there should remain any sum of money liams, then I direct and request that the proso collected from my said estate on hand, and bate court of any county having jurisdiction, in the hands of my said trustee, W. N. Wil-appoint some suitable person to carry out the liams, at the time of the death of my said trust herein imposed, and with the same ausister, M. E. Williams, then I will and bequeath thority as herein set forth." such so remaining equally to the balance of my sisters then living, and my trustee is directed and authorized to turn such property to them, after deducting the necessary expenses incident thereto. over Mrs. Cooper's estate consisted of the two vendor's lien notes in controversy and the house and lot in the town of Sunset in Montague county, Tex., devised by said will. Aft |