tle is not postponed after Graham's death, [ proof that it will ever be necessary for the until they reach the age of 25 years, but only trustees, in their honest discretion, to adthe enjoyment of the possession of the prop- vance more than $500 per month, or than erty is thus postponed. This does not make all the income after Graham's debts are paid, the remainder contingent, or in any manner to pay his doctor bills. The petition alleges militate against its character as a vested re- that the income was $5,000 per month when mainder. Barkhoefer v. Barkhoefer, 204 S. the suit was brought. At this rate, the debts W. loc. cit. 910 (Division 1, this court); Wad- will all soon be paid, if they have not already dell v. Waddell, 99 Mo. loc. cit. 345, 12 S. W. been paid, when Graham is entitled to the en349, 17 Am. St. Rep. 575; Thomas v. Thomas, tire income. The doctor bills are only paya149 Mo. loc. cit. 433, 51 S. W. 111, 73 Am. St. ble when necessary, and the amount so payaRep. 405; Doerner v. Doerner, 161 Mo. 406, ble is in the sole discretion of the trustees. 61 S. W. 801; Carter v. Long, 181 Mo. loc. cit. It is not presumable that they would deter709, 81 S. W. 162; Warne v. Sorge, 258 Mo. mine to pay such bills, or any part thereof, if 162, 167 S. W. 967; Eckle v. Ryland, 256 Mo. Graham wasted his income in riotous living, 424, 165 S. W. 1035; Buxton v. Kroeger, 219 so that he would not have enough left to pay Mo. loc. cit. 261, 117 S. W. 1147; Heady v. doctor bills. The contingency of Graham evHollman, 251 Mo. 632, 158 S. W. 19. er receiving or being entitled to anything for doctor bills, in addition to his regular allow

It is also urged that the remainder is contingent in the children and void because Gra-ance provided for by the deed of trust, to the ham's $500 per month is payable out of the principal, as well as the income, and therefore might absorb the whole estate. In effect, this monthly charge is but an incumbrance on the property, and simply makes the remainder subject thereto. It does not change the nature of the title of the remaindermen any more than an incumbrance on a fee simple would change the fee-simple title. Both remain unchanged, except they are subject to the incumbrance. They are in no way made void thereby.

But, we hold that the remainder to Graham's children, whether vested or contingent, was a valid conveyance for the benefit of said children, and not for Graham's use. It is immaterial, therefore, so far as this case is concerned, whether said remainder was vested or contingent.

detriment of creditors or purchasers, is a most remote possibility, and will not, in a court of equity, be presumed, against the allegations of the petition and the evidence in the case, to destroy an estate created in good faith for the benefit of his children. But, if this contingency should ever happen, it is not beyond the power of a court of equity to determine the amount Graham would be entitled to for such doctor bills and extraordinary expenses on account of sickness or personal injury, or require the trustees to do so, and award it to such creditors or purchasers instead of to Graham. We must rule this contention also against the appellants.

IX. But, it is strenuously argued that the case of Jamison v. Mississippi Valley Trust Co., 207 S. W. 788, decided by Division No. 2 of this court, is decisively in favor of the VII. The deed of trust, being valid as to claim of learned counsel for appellants that the provision for the children, may, no doubt, under section 2880, R. S. 1909, the deed of be avoided by subsequent purchasers or sub- trust of May 23, 1916, to defendant trustees, sequent creditors of Graham, in so far, and is void. We are not of that opinion. That so far only, as it is for Graham's use. In a was a proceeding by judgment creditors, and proper proceeding, subsequent creditors or could have no application here for that reapurchasers might therefore reach and appro- son alone, as we have already indicated. In priate the monthly sum of $500 and the in- that case, there was no provision for the secome reserved to Graham. Authorities, infra. curity of creditors, as in the case at bar. But [9] VIII. But, it is said by learned counsel the grantor conveyed his property to trusthat it is possible that the vicissitudes of for- tees: First, for the benefit of the grantor for tune might so reduce the income and value of 5 years, and if he died during that time, and the property, or might so afflict Graham per- in the absence of a will, to his heirs at law, sonally, that the trustees, in the exercise of under the laws of Missouri; second, the trustheir honest discretion, might appropriate, or tees were to pay to the grantor the net inbe compelled to appropriate, the entire estate come, as he might demand; third and fourth, to the payment of doctor bills and extraordi- the trustees were authorized to sell and mannary expenses for the care of Graham, on ac- age the property in their discretion; fifth, count of personal injury or sickness; that the trustees were not to pay the grantor more even if the creditors or purchasers might than the income, “except that in case of exsecure his monthly stipend, they could not tremity of the beneficiaries, or if by misforreach that part of the fund necessary to be tune or unavoidable accident the value of the reserved for Graham's benefit, in case of in- trust estate shall become greatly diminishjury or sickness, because that amount is un-ed and imperious necessity affecting the then certain. The law is a practical science. beneficiary * should, in the judgThere is no allegation in the petition, and no ment of the trustees, render it proper to use

*

(222 S.W.)

additional amounts out of the trust estate [ of the creditors were not considered. Even in as to what is such extremity or im- that case it was said that one of the reasons for perious necessity and what amount of the setting aside a voluntary settlement of this principal is necessary to be used, the trus- character was when it appeared that the design tees shall exercise their best discretion, and of the deed was to give the settlor full enjoyment of his property for life, with power of testamentary disposition, and at the same time protect it from his creditors. This is exactly what the learned court below held the present deed to be, and we concur in that conclusion."

their decision shall be absolute"; sixth, the grantor was prohibited from anticipating the income payable to himself, and prohibited from selling or incumbering it, and both principal and income were declared not subject to his debts or liabilities.

The court held the conveyance to the trustees was wholly for the use of the grantor, and was therefore void as to the plaintiffs, under said section 2880 of the statutes. White, C., delivering the opinion of the court, said (207 S. W. 790):

When, however, as in the case at bar, conveyances have been made without power of revocation, and reserving a life estate to the grantor, with remainder over, the conveyances have uniformly been held valid, except as to the income or part reserved to the "It was not shown that Bell [the grantor] creditors and purchasers. Brown v. McGill, grantor, which is held subject to the rights of had any children, or that there was any one 87 Md. 161, 39 Atl. 613, 39 L. R. A. 806, 67 answering the description of 'his heirs' in case he should die. This contingent estate, if it Am. St. Rep. 804; Bank v. Windram, 133 may be so construed, depends upon several conMass. 175; Schenck v. Barnes, 156 N. Y. 316, tingencies: The contingency that he die with- 50 N. E. 967, 41 L. R. A. 395; Low v. Carter, in 5 years; the contingency that he leave no 21 N. H. 433; De Hierapolis v. Lawrence (C. will; and the contingency that he have heirs C.) 115 Fed. 761; Sloan v. Birdsall, 58 Hun, capable of taking. In case of his death without 317, 11 N. Y. Supp. 814; Jones v. Clifton, 101 a will, the property would go to his heirs pre-U. S. 225, 25 L. Ed. 908; Curtis v. Leavitt, cisely as if no trust had been created; that is, the trust would terminate at the end of 5 years, or sooner in the case of his death. He retained control of the contingency by which the title might vest by purchase in his heirs. The restraining barrier set to prevent assault upon the corpus of the estate contained an elastic panel euphemistically designated as 'imperious necessity,' which had already yielded under pressure so as to permit the escape of something near 10 per cent. of the amount in the

trustee's hands."

The cases cited by the court from other states, including also McIlvaine v. Smith, 42 Mo. 45, were all cases where the intent was apparent that the transfer was intended to be and was wholly for the grantor's use, and not, as in the case before us, for his use for life with a clear vested remainder in his children.

15 N. Y. 9.

X. But there is another reason which would lead to an affirmance of this judgment. The principal complaint in the petition is that a clause in the agreement of May 23, 1916, making defendants Bishop and American Trust Company trustees, reserving to said Henry B. Graham the right of revoking said his debts and the restoring his property to trust and terminating it upon the payment of him, was omitted through the incompetency, mistake, or accident of Graham, or fraud of the defendant Bishop, who drew up said agreement, as the attorney of said Graham. The evidence shows that if said Graham desired any such clause of revocation in said agreement of May 23, 1916, or a clause restoring said property to him, it was principally for the purpose of enabling him to provide more abundantly than he otherwise could for Mrs. Snowden as his future wife. Mrs. Snowden then was a married woman,

Nolan v. Nolan, 218 Pa. loc. cit. 140, 67 Atl. 52, 12 L. R. A. (N. S.) 369, cited by the court was like the case before Commissioner White, and the court in that case clearly distinguish-living with her husband in St. Louis. Graes it from cases like the one we have to pass upon, by saying (218 Pa. 141, 67 Atl. 54, 12 L. R. A. [N. S.] 374):

"What has been said does not in any way disturb the rule in Potter v. Fidelity Ins. Trust & S. D. Co., 199 Pa. 360, 49 Atl. 85, wherein it was held that, where a voluntary, active trust by express terms is made irrevocable, and there has been no failure of the purpose of the trust, and it is not shown that the deed was procured by fraud or imposition, or executed under a misapprehension of the facts or the law, the trust cannot be revoked at the instance of the settlor, but will be enforced in favor of the beneficiaries. That was a controversy between the settlor and the beneficiaries, and the rights

ham had for some time visited her almost daily, and was engaged to marry her when he should be divorced from his wife, who was then living in adultery with another man in New York City, and Mrs. Snowden should be divorced from her husband, with whom she was then living in the house where Graham visited her. In fact, the appellants claim in their brief that such was the purpose of said Graham in desiring to have the revocation and return clause inserted in the deed of trust now assailed. Appellants' learned counsel say in their brief:

"Despite the numerous sharp conflicts, certain facts stand out clearly in the record. Mr.

(222 S.W.)

BUERGER v. WELLS. (No. 2623.) (Supreme Court of Texas. May 19, 1920.)

1. Garnishment I-Statute must be strictly

followed.

Garnishment is merely a species of attachment, being a summary proceeding, and the statute governing it should be followed with strictness.

2. Garnishment 9, 88-Affidavit in suit against two defendants must allege neither has property within state.

Under the statute plaintiff in a suit for debt against more than one defendant, as a suit against maker and indorser, of notes, cannot call a stranger into court on writ of garnishment of a fund as the maker's, subjecting such stranger to inconvenience of proceeding and possible hazard, if either defendant has property within the state subject to execution from which the demand may be made; it being requisite that affidavit state "defendants" (not merely defendant) have no property within

state.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

than one defendant, cannot call strangers into court on a writ of garnishment, subjecting them to the inconvenience of the proceeding and possible hazard, if either of the

defendants has property within the State

subject to execution from which he may make his debt. Garnishment is but a species of attachment. It is a summary proceeding. The statutes governing it should be followed with strictness. The statute requires that the affidavit state that "the defendant"

has not, within the affiant's knowledge, property, etc. Where there are two defendants, or more, in the suit, this clearly means the affidavit shall state that "the defendants" have not such property. Garnishment is not intended as a remedy for one able to make his debt of the property of one of his debtors in the suit, whether such debtor be primarily liable or not. The question is ruled by Willis v. Lyman, 22 Tex. 268.

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court affirmed.

Action by H. C. Wells against Fred Buerg- KANAMAN v. HUBBARD et al. (No. 2669.) er and another, in which writ of garnishment

there is no satisfaction of plaintiff's debt until property is sold.

issued against an insurance company. From (Supreme Court of Texas. May 19, 1920.) an order dismissing the writ, plaintiff ap-1. Attachment 175-Levy creates a lien, but pealed to the Court of Civil Appeals, which reversed and remanded (157 S. W. 289), and the named defendant brings error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed. J. L. Lackey, of Burkburnett, for plaintiff

in error.

R. H. Templeton, of Wellington, and C. L. Black, of Austin, for defendant in error.

PHILLIPS, C. J. The suit was one by H. C. Wells against Fred Buerger as maker, and Mrs. Martha Mooney as endorser, of certain notes. A garnishment was sued out against an insurance company to reach a fund in its hands due Buerger. The affidavit for the garnishment only stated that Buerger did not have property in his possession with in the State, subject to execution, sufficient to satisfy the plaintiff's debt, omitting to negative such ownership of property by the other defendant. The honorable Court of Civil Appeals for the Seventh District held that the motion to quash the affidavit was improperly sustained by the trial court. We granted the writ of error because of the probable conflict between this holding and that of the Court of Civil Appeals for the Sixth District in Smith v. City National Bank, 140 S. W. 1145.

[1, 2] The plain effect of the statute is that a plaintiff in a suit for debt against more

Under Rev. St. 1911, arts. 257, 268, the effect of a levy of attachment is to create a lien upon the property, but there is no satisfaction of the plaintiff's debt until the property is sold under the judgment foreclosing the lien.

2. Attachment 186-Plaintiff not liable for injuries to attached property caused by negligence or misconduct of sheriff.

As under Rev. St. 1911, arts. 252, 255, 256, the sheriff's possession of property attached at the instance of the plaintiff is no more subject to control of the plaintiff as to the manner in which he keeps the same than to direction of defendant, and as levy of a writ of attachment does not satisfy the debt, plaintiff is not responsible to defendant for injury to the attached party due to misconduct or negligence of the sheriff; but the sheriff's wrong is an injury to both parties to whom the sheriff and the sureties on his bond may be caused to respond. 3. Sales 38(9) —Slight loss will be sufficient to justify rescission of purchase induced by fraud.

Slight loss is sufficient to justify a court of equity in rescinding a contract of purchase and sale where the purchase was induced by the seller's fraud.

4. Sales 52 (7)-Finding that buyer, who was induced by deceit to purchase, was injured, held warranted.

In a suit by the buyer to rescind a contract for purchase of an automobile, finding that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1, 2] Our statutes negative either assumption. The sheriff derives his power to seize and hold the attached property, not from the plaintiff nor from the defendant, but from the statutes, which declare the will of the state. The sheriff is no more subject to diError to Court of Civil Appeals of Fifth rection or control from the plaintiff than Supreme Judicial District. from the defendant as to the manner in which Action by W. McK. Hubbard and others he keeps personal property, under levy of a against W. I. Kanaman. Judgment for plain-writ of attachment, until final judgment. Artiffs was affirmed in part and reversed and ticles 252, 255, 256, R. S. The effect of the remanded in part by the Court of Civil Ap-levy is to create a lien on the attached proppeals (160 S. W. 304), and defendant brings erty, but there is no satisfaction of the plainerror. Judgment of Court of Civil Appeals tiff's debt until the property is sold under the affirmed. judgment foreclosing the lien. Articles 257, 268, R. S.; Cravens v. Wilson, 48 Tex. 339.