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tle is not postponed after Graham's death, s 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 It is also urged that the remainder is con- doctor bills, in addition to his regular allowtingent 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 detriment of creditors or purchasers, is a principal, as well as the income, and there most remote possibility, and will not, in a fore might absorb the whole estate. In effect, court of equity, be presumed, against the allethis monthly charge is but an incumbrance gations of the petition and the evidence in on the property, and simply makes the re- the case, to destroy an estate created in good mainder subject thereto. It does not change faith for the benefit of his children. But, if the nature of the title of the remaindermen this contingency should ever happen, it is not any more than an incumbrance on a fee sim- beyond the power of a court of equity to deple would change the fee-simple title. Both termine the amount Graham would be entiremain unchanged, except they are subject to tled to for such doctor bills and extraordinathe incumbrance. They are in no way made ry expenses on account of sickness or personvoid thereby.

al injury, or require the trustees to do so, and But, we hold that the remainder to Gra- award it to such creditors or purchasers inham's children, whether vested or contingent, stead of to Graham. We must rule this conwas a valid conveyance for the benetit of said (tention also against the appellants. children, and not for Graham's use. It is im

IX. But, it is strenuously argued that the material, therefore, so far as this case is con

case of Jamison v. Mississippi Valley Trust cerned, whether said remainder was vested or Co., 207 S. W. 788, decided by Division No. 2 contingent.

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.

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-jin 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 unced and imperious necessity affecting the then certain. The law is a practical science. beneficiary * should, in the judg

In a

same

(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 enjoytheir decision shall be absolute"; sixth, the ment of his property for life, with power of

testamentary disposition, and at the grantor was prohibited from anticipating the time protect it from his creditors. This is exincome payable to himself, and prohibited actly what the learned court below held the from selling or incumbering it, and both prin- present deed to be, and we concur in that concipal and income were declared not subject clusion." to his debts or liabilities.

The court held the conveyance to the trus- When, however, as in the case at bar, contees was wholly for the use of the grantor, veyances have been made without power of and was therefore void as to the plaintiffs, revocation, and reserving a life estate to the under said section 2880 of the statutes. grantor, with remainder over, the conveyWhite, C., delivering the opinion of the court, ances have uniformly been held valid, exsaid (207 S. W. 790) :

cept 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 answering the description of 'his heirs' in case

87 Md. 161, 39 Atl. 613, 39 L. R. A. S06, 67 he should die. This contingent estate, if it Am. St. Rep. 804; Bank v: Windram, 133 may be so construed, depends upon several con

Mass. 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 y. Leavitt, cisely as if no trust had been created; that is,

15 N. Y. 9. the trust would terminate at the end of 5 years, or sooner in the case of his death. He retained

X. But there is another reason which control of the contingency by which the title would lead to an affirmance of this judgment. might vest by purchase in his heirs. The re- The principal complaint in the petition is that straining barrier set to prevent assault upon a clause in the agreement of May 23, 1916, the corpus of the estate contained an elastic making defendants Bishop and American panel euphemistically designated as 'imperious Trust Company trustees, reserving to said necessity,' which had already yielded under Henry B. Graham the right of revoking said pressure so as to permit the escape of something near 10 per cent of the amount in the trust and terminating it upon the payment of

his debts and the restoring his property to trustee's hands."

him, was omitted through the incompetency, The cases cited by the court from other mistake, or accident of Graham, or fraud of states, including also McIlvaine v. Smith, 42 the defendant Bishop, who drew up said Mo. 45, were all cases where the intent was agreement, as the attorney of said Graham. apparent that the transfer was intended to The evidence shows that if said Graham debe and was wholly for the grantor's use, and sired any such clause of revocation in said not, as in the case before us, for his use for agreement of May 23, 1916, or a clause relife with a clear vested remainder in his chil- storing said property to him, it was princidren.

pally for the purpose of enabling him to proNolan v. Nolan, 218 Pa. loc. cit. 140, 67 Ati. vide more abundantly than he otherwise 52, 12 L. R. A. (N. S.) 369, cited by the court could for Mrs. Snowden as his future wife. was like the case before Commissioner White, Mrs. Snowden then was a married woman, 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 ham had for some time visited her almost upon, by saying (218 Pa. 141, 67 Atl. 54, 12 daily, and was engaged to marry her when L. R. A. (N. S.] 374):

he should be divorced from his wife, who was “What has been said does not in any way dis- New York City, and Mrs. Snowden should be

then living in adultery with another man in turb the rule in Potter v. Fidelity Ins. Trust & S. D. Co., 199 Pa. 360, 49 Atl. 85, wherein divorced from her husband, with whom she it was held that, where a voluntary, active trust

was then living in the house where Graham by express terms is made irrevocable, and there visited her. In fact, the appellants claim in has been no failure of the purpose of the trust, their brief that such was the purpose of said and it is not shown that the deed was procured Graham in desiring to have the revocation by fraud or imposition, or executed under a and return clause inserted in the deed of misapprehension of the facts or the law, the trust now assailed. Appellants' learned countrust cannot be revoked at the instance of the settlor, but will be enforced in favor of the

sel say in their brief: beneficiaries. That was a controversy between "Despite the numerous sharp conflicts, certhe settlor and the beneficiaries, and the rights tain facts stand out clearly in the record. Mr. Graham was intending to get a divorce and to been so inserted, would not purge the plainmarry Mrs. Snowden. He was heavily in debt, tiffs' case of its original vice and immorality. and had the idea that the very existence of his He who comes into a court of equity for reestate was threatened by a pending foreclosurelief must come with clean hands. Gilmore v. of collateral then in the bands of W. K. Bixby. Thomas, 252 Mo. 147, 158 S. W. 577; CreamIt was clearly his intention to dispose of his property so that his wife would not be able to

er v. Bivert, 214 Mo, 485, 113 S. W. 1118; assert a claim against it, and that the collateral Stillwell v. Bell, 248 Mo. 61, 151 S. W. 85. in Bixby's hands should be protected, and to XI. Complaint is also made of the allowhave the conveyance in such shape that he could ance of $18,000 as compensation to defendmodify it to provide for Mrs. Snowden as soon ants' attorneys for their services in the ciras he was married to her. This was his general cuit court trying this cause. There was eviparpose.”

dence taken by the learned court below, [10] We are asked, therefore, to exert the which we have examined, as to the value of powers of a court of equity to set aside an such services. It abundantly supported the agreement which said Graham made, because allowance. The deed of trust to defendants by fraud and mistake it omitted certain authorized the charge of necessary counsel clauses which he desired inserted to enable fees to the trust estate. The lower court, who him to carry out an illegal agreement with not only heard the evidence as to the value of Mrs. Snowden to marry and provide for her such services, but by optical and long-conwhen both he and she were divorced. It is tinued oral demonstration knew what such true that he deserted Mrs. Snowden and elop- services were, made such allowance as a reaed with and married her sister, as soon as he sonable charge for such services. We shall and Mrs. Snowden were divorced, and seeks not disturb it. now to have said deed of trust to defendants

The judgment of the lower court, being set aside, not for Mrs. Snowden's benefit, but without error, is in all things affirmed. for her sister's. But the clauses he desired to have inserted in, but which were omitted BROWN and RAGLAND, CC., concur. from said agreement, being designed to carry out a wholly unlawful contract, he could not PER CURIAM. The foregoing opinion by have been heard to complain of their omis- SMALL, C., is adopted as the opinion of the sion at the time the agreement was made, and court. the fact that they would be used for a lawful All the Judges concur, except WOODSON, purpose now (if such were the fact), had they J., absent.

(222 S.W.)

than one defendant, cannot call strangers BUERGER V. WELLS. (No. 2623.) into court on a writ of garnishment, subject

ing them to the inconvenience of the pro(Supreme Court of Texas. May 19, 1920.)

ceeding and possible hazard, if either of the I. Garnishment aml-Statute must be strictly

defendants has property within the State followed.

subject to execution from which he may Garnishment is merely a species of attach- make his debt. Garnishment is but a species ment, being a summary proceeding, and the

of attachment. It is a summary proceedstatute governing it should be followed with ing. The statutes governing it should be folstrictness.

lowed with strictness. The statute requires

that the affidavit state that "the defendant" 2. Garnishment 9, 88-Affidavit in suit

against two defendants must allege neither has not, within the affiant's knowledge, prophas property within state.

erty, etc. Where there are two defendants, Under the statute plaintiff in a suit for or more, in the suit, this clearly means the debt against more than one defendant, as a

affidavit shall state that "the defendants" suit against maker and indorser of notes, can- have not such property. Garnishment is not call a stranger into court on writ of gar- not intended as a remedy for one able to pishment of a fund as the maker's, subjecting make his debt of the property of one of his such stranger to inconvenience of proceed- debtors in the suit, whether such debtor be ing and possible bazard, if either defendant has primarily liable or not. The question is property within the state subject to execution ruled by Willis v. Lyman, 22 Tex. 268. from which the demand may be made; it being requisite that affidavit state “defendants" (not lineals is reversed and the judgment of the

The judgment of the Court of Civil Apmerely defendant) have no property within state.

District Court affirmed.

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

Action by H. C. Wells against Fred Buerg-KANAMAN v, HUBBARD et al. (No. 2669.) er and another, in which writ of garnishment issued against an insurance company. From (Supreme Court of Texas. May 19, 1920.) an order dismissing the writ, plaintiff ap-1. Attachment f 175-Levy creates a lien, but pealed to the Court of Civil Appeals, which there is no satisfaction of plaintiff's debt reversed and remanded (157 S. W. 289), and until property is sold. the named defendant brings error. Judg. Under Rev. St. 1911, arts. 257, 268, the ef. ment of the Court of Civil Appeals reversed, fect of a levy of attachment is to create a lien and judgment of the district court affirmed. upon the property, but there is no satisfaction

of the plaintiff's debt until the property is sold J. L. Lackey, of Burkburnett, for plaintiff under the judgment foreclosing the lien. in error. R. H. Templeton, of Wellington, and C. L. 2. Attachment 186–Plaintiff not liable for

injuries to attached property caused by neg. Black, of Austin, for defendant in error.

ligence or misconduct of sheriff,

As under Rev. St. 1911, arts. 252, 255, 256, PHILLIPS, C. J. The suit was one by the sheriff's possession of property attached H. C. Wells against Fred Buerger as maker, at the instance of the plaintiff is no more suband Mrs. Martha Mooney as endorser, of ject to control of the plaintiff as to the manner certain notes. A garnishment was sued out of defendant, and as levy of a writ of attach

in which he keeps the same than to direction against an insurance company to reach a

ment does not satisfy the debt, plaintiff is not fund in its hands due Buerger. The affidavit responsible to defendant for injury to the atfor the garnishment only stated that Buerger | tached party due to misconduct or negligence of did not have property in his possession with the sheriff; but the sheriff's wrong is an injury in the State, subject to execution, sufficient to both parties to whom the sheriff and the to satisfy the plaintiff's debt, omitting to sureties on his bond may be caused to respond. negative such ownership of property by the

3. Sales 38(9)-Slight loss will be sufficient other defendant. The honorable Court of

to justify rescission of purchase induced by Civil Appeals for the Seventh District held fraud. that the motion to quash the affidavit was Slight loss is sufficient to justify a court of improperly sustained by the trial court. We equity in rescinding a contract of purchase and granted the writ of error because of the sale where the purchase was induced by the probable conflict between this holding and seller's fraud. that of the Court of Civil Appeals for the 4. Sales C52(7)-Finding that buyer, who Sixth District in Smith v. City National was induced by deceit to purchase, was inBank, 140 S. W. 1145.

jured, held warranted. [1, 2] The plain effect of the statute is that In a suit by the buyer to rescind a contract a plaintiff in a suit for debt against more I for purchase of an automobile, finding that the

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

error.

buyer was injured held warranted in view of [1, 2] Our statutes negative either assumpthe fact that deceit was necessary to effect the tion. The sheriff derives his power to seize sale of the machine, and that the seller resisted and hold the attached property, not from the thie refund of the purchase money on tender to plaintiff nor from the defendant, but from him of the car.

the statutes, which declare the will of the Error to Court of Civil Appeals of Fifth rection or control from the plaintiff than

state. The sheriff is no more subject to diSupreme 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 (100 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, Robt. B. Allen and A. B. Flanary, both of 268, R. S.; Cravens v. Wilson, 48 Tex. 339.

This case discloses a tort committed by the Dallas, for plaintiff in error. K. R. Craig, of Dallas, for defendants in sheriff when he was under a duty to both

the plaintiffs and defendant in the attach

ment suit. The tort resulted in injury to GREENWOOD, J. The writ of error was

both the plaintiffs and the defendant, but granted because of the conflict between the the tort was a breach of a duty owing by the decision of the Galveston Court of Civil Ap

sheriff and not by the plaintiff in attachment. peals in the case of Taylor v. Felder, 23 s. He, who owed the duty, and his sureties, who W. 483, with the decision herein of the Dal- were responsible for its faithful performance, las Court of Civil Appeals.

must be held accountable for the breach of In the former case it was held to be the the duty, and not another who was a stranger

to the duty. duty of a plaintiff, causing a distress warrant to be levied on personal property, to see

The plaintiffs in attachment, according to that the property seized was properly treated the facts in this record, have done nothing by the oflicer and applied to the discharge of save to enforce a righteous demand conformthe debt sued on, and that hence the defend- ably to law. The tort of the sheriff has not ant whose property was seized could have his relieved the defendant in attachment of his debt to the plaintiff credited with any loss obligation to satisfy the demand to secure incurred through the default or negligence which the attachment was issued. Should of the officer in the esecution of the distress the defendant satisfy the plaintiffs' demand, warrant.

he will then be alone entitled to enforce and In this case it was decided that the plain- collect the liability of the sheriff and his tiffs in attachment were not liable to the de- sureties. Otherwise, any recovery for the fendant for damages to an automobile of the sheriff's tort will be applicable first to the defendant, occasioned by the wrongful acts payment of the plaintiffs' debt. of the sheriff, while he held the automobile [3, 4] In the face of plaintiff in error's reunder the attachment. 160 S. W. 307. The sistance to the return of the sum received holding herein was in accordance with the for the car, when it was tendered back to conclusion of the Galveston Court of Civil Ap-him, and of the deceit which appears to have. peals in a later case than Taylor v. Felder, been necessary to negotiate a sale at that to the effect that where a horse died, while price, we do not think the conclusion of the in the possession of a sheriff under a writ of Court of Civil Appeals should be disturbed attachment, not wrongfully issued, as the that some pecuniary injury from the fraud result of negligence on the part of the sher- was shown to have been sustained by defendiff, there was no liability on the part of the ants in error. It is therefore unnecessary plaintiff in attachment to the defendant in for us to determine whether a court of equity attachment. McFaddin v. Sims, 43 Tex. Civ. would not order a rescission for fraud in the App. 598, 97 S. W. 337.

absence of a showing of actual pecuniary loss, The liability of an attaching plaintiff for a for, were the necessity recognized for the sheriff's tort to property held under attach- showing of such loss to warrant the relief of ment, rightfully issued, must rest on the as- rescission in equity, certainly any appreciable sumption either that the sheriff in proceed- prejudice, though slight in amount, would be ing under the writ acts as the agent or serv- sufficient. 12 R. C. L. 8 139; Pomeroy on ant of the plaintiff or that the levy operates Contracts, $ 227. as a satisfaction of the plaintiff's debt to the The judgment of the Court of Civil Appeals extent of the value of the seized property. is affirmed.

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