Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1895-02-28

be approaching the crossing was negll-
gence. II may be that from such fail-
ure the Jury would have been 1ustined
IN inferring negligence as a fact but
the court invaded the province OF the
Jury In instructing them mat such faii-
IRE was negligence. Reversed ana re-
manded opinion by Denman, j.
5. II. little ct al. vs.. NJ. L. Nanleer
ct al.-Wrlt OF error to the second dis
trict;
Suit by a trustee named in a convey
ance to recover the value OF a certain
portion OF the properly conveyed, seized
under attachment by creditor OF the
firm executing the deed. The petition
did not allege that any Of the creditors
named In the deed had, at the time the
attachment was levied, accepted It's
provisions. Special exception TO the
petition FOR want OF such allegation
was oyerruled. Both courts below
treated the instrument as statutory
assignment. II such construction be
correct there was no error in the rul-
ing. for II is clear that the statute reg
ulgting assignments by persons fnsolN-
ent or contemplating insolvency gives
effect to such Assignments independent
Of the acceptance by creditors But u
the instrument an assignment II
transfers the property TO Nanleer as
trustee. authorizes him to sell and
make deed In name OF the grantors,
and provides for the return OF the sur
plus 10 the grantors. II apears to nave
ali the clements OF an ordinary trust
deed, which. under tine settled rule IN
this state. does nos vest title In the
trustee (62 Tex. 429: CT Tex. 10l) 1t
WAS a trust deed and not an assign
ment. It was necessary to allege and
prove that some OF the creditors had
accented before the levy in order TO
show that the deed had become eject
i've. II was error to oyerrule the eN-
ceptiOn. II there was an acceptance
by any creditor prior to the levy the
possession by the trustee was sufficient
TO authorize him to maintain suit
against the attaching creditor without
Joining all the benefciaries. II is his
duty to protect the subject matter OF
the trust. Reversed and remanded.
opinion by Denmsn, J.
Texas Loan Agency vs.. Robert IL
Taylor. Jr., ct al.-Writ of error to the
NTH diHtrct
The children Of r. II. Taylor and his
wife, Tennessee, sue to recover one
half Of certain lands alleged to have
beeen community property. The lands
were acquired during the marriage.
and the wife died in 1867. r. II. Tay-
lor filed an inventory In 1863 and con-
vcyed the lands to II. j.. Taylor and j.
VI. Taylor in trust, as alleged, for them
selves and plaintiffs. The lands were
subsequently reconveyed to X. II. Tay-
lor The land was also sold under eX-
ecuton upon Judgment against h.
H. Taylor for a community debt OF
himself and his wife Tennessee. and
was purchased by II. II. Taylor for
Il. H Taylor. X. H. Taylor died in
lSs9 testate, devlsing the lands to d.
r. Taylor, his third wife, and their
children, Joy Y and TOOdles. In the
same year d, II. Taylor gave mort
gage on the land to secure Il loan by
the Texas Loan agency. The devisecs.
the loan agency and two other par
ties. were made defendants Verdict
FOR plaintiffs. The facts show an cdui-
table title in the plaintiffs to one-half
interest in the lands; but there was
error IN holding that the loan agency
did not occupy the position of a bona
fide purchaser without notice, Taylor
q Galloway, a firm of which H. H.
Taylor was a member. acted as agents
OF the loan agency in making the loan.
They prepared an abstract Of title. as
shown by the records, which was sent