expense: provided, however, that, should said Schultze fail to promptly make payment of any of the moneys herein agreed to be paid by him, or should fail to carry out any one or more of his covenants herein, then this contract shall at once be of no further force and effect, and may, at the option of Rilling, be canceled without further action, in which event all moneys paid by said Schultze shall be forfeited to Rilling as liquidated damages, it being understood that Schultze shall have and acquire no title whatever to said property until said sums of money shall have been paid in full; neither shall he be entitled to any possession thereof until such payment in full shall have been made: provided that said Schultze may, if he so desires, collect, or cause to be collected, the rents and revenues of said property, at his own expense, and same, when paid over to Rilling, to be credited on said $1,500, interest, etc., agreed to be paid. It finally provided for a reasonable attorney's fee in favor of Rilling in case litigation should arise over this contract, or it should become necessary to resort to legal proceedings in respect thereto. After said conveyance of March 1, 1900, Rilling went into possession, and collected the rents for 14 months at $25 per month, and has paid out certain sums in expenses and received also certain sums from Schultze, Jr., as interest; and he has been in possession ever since. The child is about six years of age. The property, other than the Presa street property, does not rent, and the latter alone is rea:sonably worth $3,000. The day after the divorce decree, Caroline Schultze executed a .deed to H. Schultze, Jr., conveying the property in controversy, expressing, as consideration, $10, the payment of the $500 debt to Rilling, and the further consideration of H. Schultze, Jr.'s, deeding to her certain property (presumably the property decreed to her by the divorce decree). The deed contains covenants of general warranty.”

The plaintiff, Caroline Schultze, appealed to the court of civil appeals, and defendant Rilling filed cross assignments of error. Louise Schultze, as executrix, neither appealed nor assigned errors. The court of civil appeals having affirmed the judgment, Caroline Schultze and Rilling each applied to this court for a writ of error, and both applications have been granted. It is the rule of this court that, when there are two applications made in the same case, and we think there is error in one, to grant both, so that upon the final hearing we may have the whole case before us. The two applications in this case were granted, because we were of opinion that that of Rilling pointed out error. We then thought that no error was shown as to Caroline Schultze, and we still adhere to that conclusion. The well-considered opinion of the court of civil appeals disposes of the questions presented by her appeal in a manner satisfactory to us, and

renders a further discussion of the points made by her unnecessary. We will therefore confine ourselves in this opinion to a consideration of the grounds of error specified in Rilling's application.

The trial court held that the purported conveyance from H. Schultze to Rilling was but a mortgage, and that the judgment awarded Caroline Schultze should have priority in payment as to the property therein described over the claims of Rilling attempted to be secured thereby, except as to $400 and interest, that being the balance due upon the $500 debt originally secured by a deed in trust on the property. This holding was affirmed by the court of civil appeals. It is assigned by Rilling that the court of civil appeals and the district court erred in giving Mrs. Schultze priority of payment over any part of Rilling's claim, secured by the mortgage. It was upon that assignment that we granted the writ of error, and it presents the only question in the case which, in our opinion, calls for any additional discussion. The question is a difficult one. But since it was found as a fact by the trial court that Rilling had notice of the fraud in the conveyance from H. Schultze, Jr., to H. Schultze, no question as to a bona fide purchase from the fraudulent grantee is involved. The inquiry is as to the right of the fraudulent grantee to give a mortgage upon the property conveyed to one who has notice of the fraud. The statute declares all conveyances of property in fraud of creditors to be void, but it is well understood that this means that they are merely relatively void; that is, voidable at the option of creditors who have been defrauded thereby. As between the grantor and grantee, such a conveyance is valid, and the grantor, by his deed, parts with all power of disposition over the property conveyed. The right of the defrauded creditors is merely to subject it to the payment of his debts. The fraudulent grantee may convey a good title to an innocent purchaser, but with one exception as against the rights of creditors, he cannot convey to one who has notice of the fraud. The exception applies in case of a conveyance by the fraudulent grantee in payment or as a security for the debt of a creditor who has been defrauded. That such conveyance may be made or such security given is held by the great weight of authority. Boyd v. Brown, 17 Pick. 453; Bank v. Cummins, 39 N. J. Eq. 577; Murphy v. Briggs, 89 N. Y. 446; Copenhaver v. Huffaker, 6 B. Mon. 18; Brown v. Webb, 20 Ohio, 389; Webb v. Brown, 3 Ohio St. 246; Beam v. Bennett, 51 Mich. 148, 16 N. W. 316; Stark v. Ward, 3 Pa. 328; Butler v. White, 25 Minn. 433. The ground upon which the rule seems to rest is that the fraudulent grantor can assert no claim against the property, but that the creditors can, and that if a creditor can procure a satisfaction of his claim by a purchase of the property from the grantee, or have the latter secure it by a mortgage of the prop

erty, it is not necessary for him to resort to legal proceedings. It seems reasonable to hold that the grantee may do what he may be compelled to do by suit, and that in such a case other creditors have no right to complain; since it is, in every such case, a race of diligence between them, and the one who gets the first lien is entitled to priority in payment. Some of the decisions seem to hold that the concurrence of the fraudulent grantor is necessary to the validity of the mortgage or sale by the grantee; but in Webb v. Brown, 3 Ohio St. 246, cited above, It is distinctly held that his concurrence is not necessary. A fraudulent conveyance is valid as against the grantor, and it is a matter wholly between the grantee and the creditors; therefore it would seem that the acquiescence or participation of the former is not essential. But since the grantor in this case procured the conveyance to be made, and participated in the transaction, it is not necessary for us to decide the point. We are of the opinion that the rights of the parties to this suit must be determined by the rules just announced. If the second transaction, as is alleged in the petition, was in furtherance of the original design, or otherwise intended to defraud the plaintiff, then Rilling could claim no right under it. But the trial court did not find upon the issue, and the presumption is that the fact was not established by the evidence. We must then assume that the sole purpose of the second transaction was to secure an indebtedness a part of which previously existed and a part of which was then created. The first two items were the balance of a debt previously secured by a deed of trust, and an unsatisfied judgment against H. Schultze, Jr., and the balance was for an indebtedness created contemporaneously with the mortgage. As to the first item, there is no difficulty. If the mortgage had been fraudulent and void in its entirety, this would not have affected the previous valid existing lien fixed upon it by the deed in trust. The difficulty arises as to the debt which was evidenced by a judgment. Whether this debt was in existence at the time of the conveyance from H. Schultze, Jr., to H. Schultze, the findings of the trial court do not disclose. But Rilling having taken the mortgage with notice of the fraud, in order to sustain it in whole or in part it was incumbent upon him to prove the facts which would have shown its validity. We are therefore of opinion that, if the debt evidenced by the judgment was in existence when the fraudulent conveyance was executed, the burden was upon Rilling to establish the fact by evidence. It not having been established, we must treat the case as if the indebtedness arose after execution of the deed from the son to the father. Now the ground upon which the fraudulent grantee can mortgage the property to secure a creditor is that the conveyance is invalid as

to such creditor. But it is not invalid under our rule as to the subsequent creditors; and therefore they have no more rights with reference to the property than any other purchaser. The grantee can no more give a lien to a subsequent creditor who has notice of the fraud than he can sell to a purchaser with such notice. Very clearly the mortgage is not valid as to the debts created at the time the mortgage was executed; and since Rilling has failed to show that his judg ment was for a debt which existed at the time of the execution of the fraudulent conveyance, the mortgage as to that debt must also be held void as to Caroline Schultze. If we had held that the mortgage was otherwise good as to the judgment, it would have been an embarrassing question whether the attempt to secure the new indebtedness would have avoided it as a whole. But the view we take of the case renders a decision of that question unnecessary.

We conclude that the judgments of the court of civil appeals and of the district court should be affirmed, and it is so ordered. Each of the plaintiffs in error will pay the costs incurred by the writs of error respectively sued out by them.

ANDERSON et al. v. ANDERSON et al. (Supreme Court of Texas. April 3, 1902.)

TRESPASS TO TRY TITLE-PLEADING-JOINT OWNERSHIP SEPARATE RIGHT EVIDENCE-VARIANCE-JUDGMENT.

Rev. St. 1879, arts. 1335, 1336, require judgments to conform to the pleadings, the nature of the case proved, and the verdict, and to give the party all the relief to which he may be entitled in law or equity, and declare that, in a proper case, judgment may be given for or against one or more of several plaintiffs. Rev. St. 1895, art. 5271 (Rev. St. 1879, art. 4807), provides that in trespass to try title, where there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants. Held that, though plaintiffs alleged in their petition that they were the joint owners of the land in controversy, the court did not err in permitting evidence showing the title to be in one, only, of the plaintiffs, and in rendering judgment for that plaintiff.

Certified question from court of civil appeals of Third supreme judicial district.

Trespass to try title by Laura A. Anderson and others against W. C. Anderson and others. From a judgment for plaintiff Laura A. Anderson, defendants appealed to the court of civil appeals. Certified questions from the court of civil appeals.

Jenkins & McCartney, for appellants. T. C. Wilkinson, for appellees.

BROWN, J. The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and question:

"This is an ordinary action of trespass to try title, brought by five plaintiffs, alleging in their petition that they are the joint owners of the land in controversy. The undis

puted testimony establishes the fact that Laura A. Anderson, one of the plaintiffs, owns the land in her own separate right, and that neither the other plaintiffs nor the defendants have any title thereto. The defendants objected to the testimony showing the title to be in Laura A. Anderson, upon the ground that it was at variance with the averment of joint ownership in the plaintiffs' petition. The court overruled the objection, and rendered judgment for Mrs. Laura A. Anderson for the land in controversy, and that the defendants recover costs from them. This ruling and action of the court is assigned as error.

"With this statement and explanation, the court of civil appeals for the Third district certifies to the supreme court for decision this question: Did the district court commit reversible error in overruling the objections urged to the plaintiffs' testimony showing title in Mrs. Laura A. Anderson, and in rendering judgment for her for the land in controversy? In other words, was the variance between the averment of joint ownership in the petition and the proof fatal to Mrs. Laura A. Anderson's right to recover?"

To the question, we answer there was no error in admitting evidence to establish the title of Mrs. Anderson, nor in rendering judgment in her favor for the land. Article 1476 of Paschal's Digest reads as follows: "Judgments in the district court shall in all cases be rendered so as to conform to the pleadings, the nature of the case as proved, and the verdict thereon." This statute was in force at the time Judge Moore delivered the opinion in Teal v. Terrell, 48 Tex. 509, in which he said: "There is also, in my opinion, an error, not discussed by counsel, or distinctly presented by the assignment of errors, but going to the foundation of the judgment, which would require its reversal, and to which, in remanding the case to the district court, it is proper to call the attention of the parties. The plaintiffs, in their petition, claim to be joint owners of the land sued for; and they have, by the judgment, jointly recovered. But the evidence shows several titles for some of the tracts, making the aggregate described in the petition and judgment. The testimony relied upon by the plaintiffs does not. therefore, prove the title alleged in their petition, or support the judgment." That opinion was filed in 1878, and in 1879 the Revised Statutes were enacted, which contain the following provisions in lieu of the article quoted:

"Art. 1335. The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.

"Art. 1336. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and against or for one or more of several defendants or interveners."

These articles are practically the same as the previous statute, and apply to suits generally, but the action of trespass to try title has been governed by rules of pleading different from those which obtained in cases generally; and the codifiers introduced article 5271, Rev. St. 1895 (article 4807, Rev. St. 1879), into title 106, which provides, "When there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants the premises or any part thereof, or any interest therein, or damages, according to the rights of the parties." It is apparent from a review of these different statutory provisions, in connection with the fact that the change was made just after the announcement by Judge Moore of his personal opinion upon this subject, that the codifiers intended to avoid the effect of that decision as to cases of trespass to try title, and to permit one of several joint plaintiffs to recover, although there might be a total failure of proof as to the other plaintiffs, and also to permit one of such plaintiffs to recover all or a portion of the land sued for. No other reasonable construction can be given to article 5271, because plaintiffs could not join in the action unless they claimed in some common right. It would be a misjoinder. Therefore the statute must mean that where plaintiffs join, claiming in a common right, and it be established that one alone is entitled to recover, such one shall recover according to his rights as shown by the evidence, either in whole or in part, or against one or all of defendants. We think this view is strengthened, also, by article 5260, which was introduced into title 96, Rev. St. 1879, by the codifiers, and provides that either party may demand of the other an abstract of his title, to which the evidence must be confined; thereby securing all advantages that would be afforded by special pleading.

LEWIS et al. v. ROSS et al.

(Supreme Court of Texas. March 31, 1902.) VENDOR AND PURCHASER-VENDOR'S LIENPRIORITIES-FORECLOSURE-EQUITY OF REDEMPTION-DISTRIBUTION OF PROCEEDS OF FORECLOSURE SALE-WARRANTY OF TITLE -DAMAGES FOR EVICTION.

1. Where a vendor's lien is reserved in two purchase-money notes and the deed, without giving priority to either note, the sale of one note under an agreement that it shall be prior to the other, which agreement is not recorded, does not give priority thereto as against a subsequent purchaser of the other note, who has no knowledge of such agreement, though he knows the existence of both notes.

2. Where land subject to a vendor's lien as security for two notes, equal in amount, is sold under foreclosure to pay one of the notes, and purchased by the holder thereof, the holder of the other note not being made a party to the foreclosure, a purchaser of the land from the former is entitled on a subsequent foreclosure by the latter to one-half of the proceeds

of the sale, if not in excess of the debt, and to any excess over the amount of the debt.

3. An evicted covenantee may recover of a remote warrantor of the title the sum received by such warrantor from his immediate grantee, without regard to the amount paid for the land by the covenantee.

Error to court of civil appeals of Third supreme judicial district.

Suit by H. G. Ross and others against J. L. Lewis and others on a note and to foreclose a vendor's lien. From a decision of the court of civil appeals affirming a judgment in favor of plaintiffs (65 S. W. 504), defendants bring error. Modified, and final judgment entered.

Matthews & Browning and Fred Dew, for plaintiff in error Lewis. Cox & Anderson, for plaintiff in error Casbeer. Leonara Doughty and W. M. Allison, for defendants

in error.

BROWN, J. H. G. Ross and wife instituted this suit in the district court of Mills county against Mrs. McGuire upon a note executed by her to J. N. Schultz and to foreclose the vendor's lien upon land described in the petition. Casbeer was joined as a defendant, he being in possession and claiming the land. He vouched in J. L. Lewis, a remote warrantor, and prayed that, in case judgment should be rendered foreclosing the lien upon the land, he might have judgment against Lewis upon his warranty. Lewis and Casbeer joined in filing an answer to the petition, in which they set up that the note sued upon was one of two given by Mrs. McGuire to J. N. Schultz for the purchase money of the land in question, and that Schultz, for a valuable consideration, assigned the note first to become due to Lewis with the agreement that Lewis should have priority in the payment. It was alleged that the plaintiffs in this suit had notice of this agreement when they acquired the note sued upon.

Lewis instituted suit upon the note held by him, and foreclosed the vendor's lien against Mrs. McGuire, but the holder of the note now sued upon was not a party to that suit. Judgment was entered in that case foreclosing the lien, and the land was sold under it, and purchased by Lewis for $20. Lewis sold to another, giving a warranty deed, and through this source of title the de fendant Casbeer claimed by regular conveyances to himself.

From the opinion of the court of civil appeals (65 S. W. 504) we copy as follows: "The undisputed testimony shows that J. N. Schultz conveyed the land to Mrs. M. A. McGuire October 26, 1895, taking in payment therefor two notes for $175 each, with interest from date at ten per cent. per annum, one due in one and the other in two years; that a lien to secure the payment of each note was expressly stated and retained in each and in the deed from Schultz to McGuire, which deed was duly recorded in Mills county, where the land is situated, before Schultz

transferred either note. It was also shown that the note assigned to the plaintiffs was transferred by Schultz to one Gillespie, who in turn transferred it to Mrs. Ross, one of the plaintiffs, before maturity, and that Gillespie had knowledge of the contract between Schultz and Lewis; but the plaintiffs acquired the note without such knowledge, and without notice of any fact that would put them upon inquiry, unless it be that knowledge of the fact that another note was given by Mrs. McGuire in part payment for the land and secured by a contract lien of record cast upon them the duty of inquiring of Schultz whether or not he had assigned the other note in such a manner as to diminish his rights as holder of the note involved in this suit. There was a nonjury trial, resulting in a judgment for the plaintiffs for $263.95, principal and interest, against the defendant McGuire, and a foreclosure of the vendor's lien on the land involved as against the defendants Lewis and Casbeer. Judgment was also rendered for the defendant Casbeer against Lewis on his warranty for the sum of $550, with the proviso that, if the defendant Lewis paid off and discharged the judgment in favor of the plaintiffs, such action on his part should operate as a satisfaction of the judgment in favor of Casbeer against him."

As between the plaintiff's in error and the defendants, two questions are presented by the application: (1) That the court below erred in holding that Lewis was not entitled to prior payment of the note held by him. heretofore foreclosed, out of the proceeds of the sale ordered; (2) that the court erred in not allowing Casbeer to participate in the proceeds of the sale of the land under the judgment entered in this case. Moran v. Wheeler, 87 Tex. 179, 27 S. W. 54, very clearly and conclusively settles the first question against the contention of the plaintiffs in error. We need not discuss the question further than to state simply that under the law of this state the deed from Schultz to McGuire gave notice to Mrs. Ross that there was another note outstanding which held a lien upon the land equally with the one she bought. But it gave no notice to her of any prior right in the holder of the other note. If one who acquires a purchase-money note with an agreement for priority of payment desires to preserve that right as against persons who may subsequently purchase the other notes, he may and should take a written assignment of the note purchased, embodying in it the agreement for priority of payment, and have it recorded; and, failing to do so, one who purchases another of the same series of notes without notice of the prior right will take it subject to the legal effect of the reservation of the lien in the deed, --that is, equality of lien between the several notes. There was no error in the judgment of the court refusing Lewis priority of payment.

Upon the other question the court erred in its judgment. Lewis, by his purchase at the foreclosure sale under the judgment procured by him against Mrs. McGuire and Schultz, acquired all of Mrs. McGuire's title in the land, and an interest in it absolute in proportion that the judgment under which he purchased held a lien upon the land; and he was entitled, in case of sale under a subsequent foreclosure of the outstanding note, to participate in the proceeds of such sale in the ratio that the two notes bore to each other, that is, the notes being equal, each holder of a note would be entitled to onehalf of the proceeds of the sale to the extent of the payment of the note last foreclosed, and, if there should be more than sufficient to satisfy the two notes, then the surplus should be paid to Casbeer, who owns the interest that Lewis acquired, because he is the owner of the equity of redemption which Mrs. McGuire had under her purchase. Pugh v. Holt, 27 Miss. 468; Dean v. Hudson, 1 Posey, Unrep. Cas. 371. When the note held by Lewis fell due, he had the right to sue upon it, and foreclose to the extent that the note held a lien upon the land, without making the holder of the other note a party to the suit; but in such case the judgment would in no way affect the lien of the outstanding note in the hands of a person not a party to the suit. Pugh v. Holt, 27 Miss. 468; Thompson v. Robinson, 93 Tex. 170, 54 S. W. 243, 77 Am. St. Rep. 843; Foster v. Powers, 64 Tex. 250; Dean v. Hudson, supra. By his purchase under the judgment rendered in the former suit Lewis acquired the title of Mrs. McGuire, and also that which had been reserved in the deed to the extent that the judgment foreclosed the lien upon the land. See authorities above cited. Lewis held the land subject to the foreclosure of the outstanding notes to the extent of onehalf of the land, and by reason of his representing the interest of Mrs. McGuire he had the right to pay off the outstanding note and prevent a foreclosure, or to suffer foreclosure and participate in the proceeds of the sale. The result of the judgment in this case is that Lewis, by foreclosing his note upon the land and purchase, paid out $20 and satisfied his lien. He is condemned to refund all of the money he received in the sale of the land, and denied any part of the proceeds of the sale, whereby he loses the lien that his note held upon the land and the money that he paid in the purchase, while Mrs. Ross gets all of her debt and Mrs. McGuire gets the excess, if any, in right of a title which had been sold under a judgment regularly entered against her. The judgment of the district court was contrary to the law in denying Lewis his rights as a purchaser under the former judgment, and it must be reversed, and judgment here rendered.

The plaintiff in error Lewis complains against his coplaintiff in error that the court erred in rendering judgment in favor of Cas

beer for the amount received by Lewis in the sale made by him to Casbeer's vendor. It is contended that Casbeer could only recover against Lewis the sum which the former paid to his vendor, not to exceed the amount which Lewis received in the sale. In Hollingsworth v. Mexia (Tex. Civ. App.) 37 S. W. 455, the court of civil appeals of the First district held that one who was evicted from the possession of land might recover upon the warranty of a remote vendor the sum which the latter received as consideration for the sale of the land. The opinion in that case contains a very careful, thorough, and elaborate discussion of the subject, citing in support of the conclusion reached, these authorities: Brooks v. Black, 68 Miss. 161, 8 South. 332, 11 L. R. A. 176, 24 Am. St. Rep. 259; Lowrance v. Robertson, 10 S. C. 8; Mischke v. Baughn, 52 Iowa, 528, 3 N. W. 543; Dougherty v. Duvall's Ex'rs, 9 B. Mon. 57; Cook v. Curtis (Mich.) 36 N. W. 692. The cases cited support the decision. We are of opinion that there is no error in the judgment of the court in this particular.

This court now proceeding to enter such judgment as the district court should have entered, it is ordered that Mrs. E. B. Ross, joined by her husband, H. G. Ross, do have and recover from the defendant, M. A. McGuire, $175 principal and 10 per cent. interest per annum from October 21, 1895, and that as against the said M. A. McGuire and W. M. Casbeer the lien of the said note be foreclosed upon the land described in the petition, and that the clerk of the district court of Mills county issue an order of sale directed to the proper officer, commanding him to sell the land as under execution, and that, after paying the cost of the suit and of executing the order of sale, he divide the proceeds into two equal parts, paying one half to W. M. Casbeer, and out of the other half he discharge the judgment in favor of Mrs. Ross, and, if there be an excess of that half after paying the judgment, it be paid over to the said W. M. Casbeer. It is ordered that Mrs. E. B. Ross and H. G. Ross do have and recover of Mrs. M. A. McGuire and W. M. Casbeer all costs of the district court expended in this cause, except so much as was occasioned by making J. L. Lewis a party to this suit. It is further ordered that J. L. Lewis and W. M. Casbeer recover of Mrs. E. B. Ross and H. G. Ross all costs of the court of civil appeals and of this court. Upon the facts found this court cannot dispose of the rights between W. M. Casbeer and J. L. Lewis, because such rights depend upon contingencies which may not happen, and are too uncertain for adjudication in this suit. It is therefore ordered that J. L. Lewis go hence without day, without prejudice to the rights of either party, and that Lewis recover of W. M. Casbeer all costs expended by him on account of his being made a party to this action. It is further ordered that W. M. Casbeer or J. L. Lewis may pay off and