** sary to decide, for they are facts and cir- | road was much traveled by pedestrians and in such manner that the officers of the com- Taylor was one of the directors who adopted the resolution authorizing the sale of the land and his wife bought under it more land than either Mrs. Davis or Miss Brooks. Taylor and his wife are permitted to retain the land bought by her and hold their stock in the company. Dunlap and associates bought the stock of Davis, his wife, and Miss Brooks, whereby they received the benefit of the purchase money paid by Mrs. Davis, and Miss Brooks represented in the stock so purchased. In the name of the corporation it is sought to concede the advantage to Taylor and wife and to exact the strictest enforcement of law against the plaintiffs in error. Such a state of facts does not appeal to the sense of justice of a court of equity. Neither will the law sustain such a claim. We are of opinion that the honorable Court of Civil Appeals erred in reversing the judgment of the district court and in rendering judgment in this cause. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed. FT. WORTH & D. C. RY. CO. v. LONGINO. Whether one struck by a train at a place which was so much traveled by pedestrians that he was not a trespasser exercised ordinary care in looking back for the train held, under the evidence, for the jury. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1204-1212; Dec. Dig. § 400.*] We have carefully considered the other asError from Court of Civil Appeals of Sec-signments of error in the application for the ond Supreme Judicial District. writ of error, but we are of opinion that they point out no error. The judgment is accordingly affirmed. Action by S. B. Longino against the Ft. Worth & Denver City Railway Company. There was a judgment of the Court of Civil Appeals (118 S. W. 198) affirming a judgment for plaintiff, and defendant brings error. Affirmed. Spoonts, Thompson & Barwise, for plaintiff in error. Capps, Cantey, Hanger & Short, for defendant in error. TEXAS CENT. R. CO. v. BOESCH. (Supreme Court of Texas. March 16, 1910.) RAILROADS (§ 305*)-ACCIDENTS AT CROSSING -FRIGHTENING ANIMALS. In an action for injuries to an occupant of a buggy at a crossing, claimed to have been caused by the unnecessary noise of the engine frightening the horses, an instruction that plaintiff could not recover if the employés on the engine did not see plaintiff in her perilous position was erroneous, since, although servants of the usual and necessary noises without keeping a railway company may move their trains with a lookout for frightened teams along the track, GAINES, C. J. Defendant in error, S. B. Longino, was run over and injured by a train of the appellant company, and sued and recovered damages therefor. The accident occurred on the track of the Ft. Worth & Denver City Railway Company north of Ft. Worth. The track of the rail where they undertake to make an unusual and unnecessary noise at a crossing of a public street, they should see that there are, no teams in position to be frightened thereby. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 968-971; Dec. Dig. § 305.*] Error to Court of Civil Appeals of Fifth Supreme Judicial District. Action by A. P. Boesch against the Texas Central Railroad Company. From a judg. ment of the Court of Civil Appeals reversing and remanding a judgment for defendant (118 S. W. 784), defendant brings error. Reversed and remanded. Collins & Cummings and J. A. Kibler, for plaintiff in error. W. E. Spell and Z. L. Shurtleff, for defendant in error. GAINES, C. J. The following is a statement of this case as made by the Court of Civil Appeals of the Fifth Supreme Judicial District: "Mrs. Boesch and companions were riding in a buggy on a street in the town of Whitney, and when they approached within 30 or 40 feet of the point where the railroad track crosses said street, they saw a train approaching, and stopped their horse for the train to pass. It is alleged that when the train reached the crossing the engineer negligently caused steam to escape from the engine, causing a loud and unusual noise, which frightened the horse and caused it to run away and injure Mrs. Boesch. The defendant pleaded a general denial and contributory negligence on the part of plaintiff. A trial resulted in a verdict and judgment for the railroad. It seems the engine passed over the crossing, going west, and stopped, and then immediately began backing east. There is no controversy that the engine in crossing west made more noise than was customary and necessary in the operation of trains, but there was a sharp conflict whether the horse became frightened and ran from the sight and noise of the engine when it first reached the crossing going west, or when it backed east at which time appellant's witnesses claim the engine emitted steam. Upon the question of the care devolving upon the railroad under the circumstances the court gave a special charge requested by the railroad, as follows: 'Notwithstanding you find and believe from the evidence that the engine of the defendant did emit steam and frighten the horse which was being driven by Mrs. Boesch at the time and place alleged in plaintiff's petition, yet, if you further believe that the engineer in charge of said engine did not see plaintiff and her companions in the buggy south of the defendant's track at the crossing of said track on Colorado street in the town of Whitney, as shown by the evidence, and that the fireman or other servant or employés of defendant on said engine at the said time and place did not discover the perIlous position of plaintiff (wife) and the other occupants of the buggy in question, if you find their position was perilous, in time to have informed or advised the engineer in charge of such engine of their said position in time for such engineer, by the use of the dent in question, then and in such event the means at hand, to have prevented the acciplaintiff cannot recover in this case, and you. will return a verdict for defendant.'" of the law, but for the fact that in running We think the charge a correct statement west the train made "an unnecessary and unusual noise." To frighten a horse by necessary and usual noise of running a train,. when the fact of his being frightened is not discovered by the servants of the railroad company in charge of the train is one thing. To frighten a horse by an unusual and unnecessary noise is another. It is the right of the servants of a railroad company to move their trains with the usual and necessary noises, without keeping a lookout for frightened teams along the track. It was so held in the case of Hargis v. Railway Co., 75 Tex. 19, 12 S. W. 953. But where they undertake to make an unusual and unnecessary noise at a crossing of a public road or street, they should exercise circumspection, and see that there are no teams in position to be frightened, by such unusual sounds. The charge of the court excludes this idea, and for that reason the judgment must be reversed. The opinion of the Court of Civil Appeals lays it down that it is the duty of the servants of a railroad company to keep a lookout for frightened horses at all times along the track of the railroad, which is in conflict with the rule announced in the Hargis Case above cited. For this reason we granted the writ of error, though it is a reversed and remanded case. The judgment is reversed, and the cause remanded, with instructions to proceed in accordance with this opinion. TEXAS CENT. R. CO. v. MORRISON. (Supreme Court of Texas. March 16, 1910.) Error to Court of Civil Appeals of Fifth Supreme Judicial District. Central Railroad Company. Action between R. B. Morrison and the Texas From an adverse judgment on appeal to the Court of Civil Appeals, the railroad company brings error. Reversed and remanded. Collins & Cummings and J. A. Kibler, for leff, for defendant in error. W. E. Spell and Z. L. Shurtplaintiff in error. GAINES, C. J. This is a companion case to that of Texas Central Railroad Co. v. A. P. Boesch (this day decided) 126 S. W. 8. The same special charge was given at the request of the attorneys for the railroad company, and was assigned as error. For the reasons given in the opinion in that case, we think the charge was erroneous, and therefore reverse the judgment and remand the cause. DU PERIER v. DU PERIER.† (Court of Civil Appeals of Texas. Feb. 11, 1910. Rehearing Denied March 3, 1910.) 1. HUSBAND AND WIFE (§ 119*) CONVEYANCES-CONVEYANCE TO SEPARATE ESTATE. A conveyance, directly from the husband to the wife, of property standing in his name, acquired since the marriage, prima facie vests title in her as her separate estate, though the deed does not show such intention by the husband. TO WIFE-SEPARATE ESTATE. Where a deed from a third party to a wife does not in terms convey the property to her separate use, or show that the consideration was paid out of her separate estate, title vests prima facie in the community, but it may be shown that the consideration was paid out of her separate estate, or that the property was intended for her separate use. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. 88 424 429; Dec. Dig. § 119.*] 3. HUSBAND AND WIFE (§ 119*) EXPRESS TRUSTS-SEPARATE ESTATE-PROPERTY CONVEYED TO WIFE. Even though a deed by its terms conveyed property to a wife in her separate right, it could be shown that she took title under an express trust for the benefit of the community, or of her husband. PLEASANTS, C. J. This suit was brought by appellant against her husband, Douglas Du Perier, to recover the title and possession of lot No. 10, in block No. 73, of Van Wormer's addition to the city of Beaumont. Aft [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 424-429; Dec. Dig. § 119.*]er the usual allegations in a suit of trespass to try title the petition further alleges: "Plain2. HUSBAND AND WIFE (§ 119*)-CONVEYANCE tiff further represents to the court that the property in controversy in this suit was conveyed to the defendant by Alfred Du Perier on the 12th day of July, 1902, by general warranty deed for the consideration of $2,400 cash; that after the defendant had acquired title to the property he desired to conVey the same to his wife, the plaintiff herein, to be owned and held by her as her own separate estate, and the defendant sought the advice of a lawyer as to the manner in which title to the property could be passed from him to his wife, the plaintiff herein, so that she could own and hold same in her own right as her own separate estate, and the defendant, advised by an attorney that the only valid way to effect a transfer of title to said property from the defendant to his wife, the plaintiff herein, so that the same could be conveyed to and owned by her as her own separate estate, was to make, execute, and deliver a deed conveying the property to some third party, who should act as the trustee to hold said property, and, after said deed had been executed and delivered to the said third party as trustee, and the title had fully passed out of the defendant, that the said trustee could legally convey the property to the defendant's wife, the plaintiff herein, and, acting upon said advice, and believing the same to be the correct and only valid way in which the title to said property could be passed from said defendant and vested in his wife, the plaintiff herein, so that the same could be owned and held by her as her own separate estate, the defendant and this plaintiff executed and delivered a general warranty deed conveying this property to one H. P. Barry, on the 23d day of September, 1903, which said deed is recorded on page 588 of volume 73 of the Deed Records of Jefferson county, Tex.; that no consideration of any kind or character was paid by the said H. P. Barry for said conveyance of said property, and no consideration of any kind or character was received by plaintiff or defendant from H. P. Barry for said property and the recitals of the payment of consideration in said deed are not true, and on the other hand, it was expressly agreed and understood by and between all the parties to said transacAppeal from District Court, Jefferson Coun- tion that the said H. P. Barry should hold ty; L. B. Hightower, Jr., Judge. the title to said property as trustee, and that he should thereafter make, execute, and de Suit by Suze S. Du Perier against Douglas [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 424-429; Dec. Dig. § 119.*] 4. ESTOPPEL (§ 53*) - INTENT - ESTOPPEL BY CONDUCT. Estoppel arises from words or acts, and not from intention alone, and the fact that defendant, who conveyed property to another, who in turn conveyed to defendant's wife, intended the deed to his wife to state that it should be her separate property would not estop him from afterwards claiming that he did not intend to give her the property, but merely conveyed it to her to avoid claims of creditors. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 126, 127; Dec. Dig. § 53.*] 5. FRAUDULENT CONVEYANCES (§ 174*) RIGHTS BETWEEN PARTIES-IMPLIED TRUSTS. Where defendant conveyed property to another, for the purpose of having it conveyed to his wife, in order to prevent it from being subjected to his debts, his wife would hold the property in trust for defendant, even if it was conveyed in terms to her separate use. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 530-536; Dec. Dig. § 174.*] 6. FRAUDULENT CONVEYANCES (§ 174*)-RECOVERY OF TRUST PROPERTY PURPOSE OF TRUST CONVEYANCE TO DEFRAUD CREDITORS. Du Perier. From a judgment for defendant, plaintiff appeals. Affirmed. Where a husband conveyed his homestead to another, who conveyed to the grantor's wife, for the purpose of preventing his creditors from attempting to subject it for debts, but did not intend to abandon his homestead, the intention with which the husband conveyed the property was not fraudulent as to his creditors, and would not prevent him from recovering it from his wife, on the ground that she held it in trust. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 530-536; Dec. Dig. § 174.*] G. P. Dougherty, for appellant. E. E. Easterling and J. D. Martin, for appellee. | liver to the plaintiff herein a good and valid | Perier, on January 12, 1902, by a deed which deed of conveyance that would convey to recites a cash consideration of $2,400 paid by this plaintiff the title to said property, to be defendant. The undisputed evidence further owned and held by her as her own separate shows that no consideration was in fact paid estáte, and that in pursuance of said agree- by the defendant for the property, and it was ment and understanding, the said H. P. Bar- in fact a gift from his father. ry and his wife, Katherine M. Barry, on or about the 1st day of October, 1903, made, executed, and delivered to this plaintiff a general warranty deed of conveyance to this plaintiff of the property now involved in this suit, which said deed is recorded on page 328 of volume 75 of the Deed Records of Jefferson county, Tex. And the said H. P. Barry and his wife, Katherine Barry, received no consideration of any kind or character for said conveyance of said property, and the said deed was made in pursuance of the general agreement or understanding, made and entered into by the plaintiff and defendant herein and the said H. P. Barry at the time plaintiff and defendant conveyed the said property to the said H. P. Barry by the said deed of September 23, 1903, to the effect that it was the purpose of said conveyance, and the intention of all the parties to said deed, that the property should be conveyed to and held by this plaintiff as her own separate estate, and the property was conveyed and title to the said property was vested in the said plaintiff herein as her separate estate, but the deed does not show upon its face, by reason of a mistake of the draughtsman who draughted said instrument, that the property is conveyed to and to be held by the plaintiff as her own separate estate, but in truth and in fact it was the understanding of all the parties to the conveyance that such should be the effect of the said conveyance, and the property was conveyed by plaintiff and defendant to said H. P. Barry for the sole purpose of having it conveyed to the plaintiff herein as her separate estate, and the said H. P. Barry, acting as said trustee, was instructed and directed by the defendant herein to convey the property to this plaintiff to be owned and held by her as her separate estate, and in truth and in fact the property was so conveyed, and is now owned by and held by her as her separate property." Then follow allegations sufficient, under the rule announced in Dority v. Dority, 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941, to entitle plaintiff to main-ence of his father and the importuning of tain this suit against her husband. The pray-plaintiff, his wife, agreed that the property er of the petition is that plaintiff have judg-in controversy should be conveyed by himself ment for the title and possession of the prop- and wife to one H. P. Barry, of Beaumont, erty, and that defendant be restrained from Tex. That it was understood between decollecting rents therefor, and from interfer- fendant and his wife, the plaintiff, at the ing with its management and control by the time of the execution of the deed by himself plaintiff. Defendant answered by general to plaintiff and Barry, that Barry should denial and plea of not guilty. The trial in hold the said property in trust and reconvey the court below without a jury resulted in a the same to the plaintiff, Suze S. Du Perier. judgment in favor of defendant "that plain- That the purpose actuating plaintiff and detiff take nothing by her suit." fendant was to keep creditors of defendant from attempting to subject said property to sale for defendant's debts, both of them believing that if the property should stand in "I find that while plaintiff and defendant were so residing in the state of Louisiana, defendant's father, who lived in Louisiana, and who knew of defendant's indebtedness, became apprehensive that the property in controversy would be levied upon by some creditor, and that defendant would run the risk of having same subjected to forced sale, and that defendant's father, for this reason, frequently counseled with plaintiff and defendant, and advised them both to make such disposition with reference to said property as would keep the same from being subjected, or attempted to be subjected, to sale for defendant's debts; and I find: That defendant at first refused to abide by any suggestion made by his father, defendant claiming that the property was his homestead and not subject to execution, but defendant finally, both because of the insist The evidence shows that plaintiff and defendant were married on January 12, 1901, and that the property in question was con We adopt the following conclusions of fact filed by the trial judge: "Shortly after said property was given to defendant, he and the plaintiff, who was then his wife, moved onto said premises, and occupied the same and claimed the same as their homestead, and the same was in fact their homestead, and remained their homestead up to the separation of plaintiff and defendant, as hereinafter mentioned. "A little while prior to the execution of the deed by defendant and wife to H. P. Barry, hereinafter mentioned, the defendant and plaintiff had gone to the town of Erath, in the state of Louisiana, and they were temporarily residing at said place at the time of the execution of said deed to said Barry, but were then claiming the property in controversy as their homestead, and in fact intended at that time to return to said property and occupy the same as their homestead. "At said time the defendant was indebted to divers persons, the exact amount of which indebtedness I do not know, but the same was somewhere between five hundred and a thousand dollars. apt to attempt its subjection to execution, the fact, and understood that said property and this arrangement was agreed upon by was to be and remain the separate property plaintiff and defendant in order that they of the defendant, notwithstanding the recitmight not be harassed by attempts to sub-als, or intended recitals, of the deed to plainject said property to execution. tiff from the said Barry. "That plaintiff and defendant are permanently separated, and that there is no reasonable probability of their ever living together as husband and wife again. That the plain "That plaintiff and defendant did in fact convey said property to H. P. Barry by deed dated September 23, 1903, and that no consideration then passed, or was intended to pass, between said parties for said property, | tiff abandoned the defendant while they were and that such conveyance was for the pur- temporarily residing in the state of Louisipose as stated in the paragraph above. ana, and returned to her stepfather's home in the state of Michigan, where she has continued to live to the date of this cause, but that plaintiff was warranted in abandoning defendant, on account of his treatment of her, and that such treatment would be just grounds in this state for a divorce, should the plaintiff apply for same. "That H. P. Barry conveyed the property in controversy to plaintiff, by deed on or about the 1st of October, 1903, and that no consideration of any kind was paid by plaintiff for said property conveyed by said deed. "That the deed from plaintiff and defendant to H. P. Barry, and the deed back from H. P. Barry to the plaintiff, were executed and delivered under and by virtue of a previous agreement and understanding between plaintiff and defendant, to the effect that the property should be conveyed by plaintiff and defendant to the said Barry, and that the said Barry was to hold the same in trust and Under appropriate assignments of error the thereafter to convey the same to the plain-appellant assails the judgment of the court tiff herein, and that it was the intention of below upon the following grounds: First, plaintiff and defendant that the said Barry, because, the court having found that it was in making such conveyance to the plaintiff, the intention of appellee that the deed from should make the deed sufficient upon its face Barry to appellant should on its face pass to convey the property to the plaintiff as her the title of the property to appellant in her separate estate-that is to say, that the said separate right, the deed should be considerBarry should use such apt words as would ed as containing apt words expressing such be sufficient to make said deed in form a con- intention, and, when so considered, appellee veyance to the plaintiff for her sole and sepa- will not be heard to say that it was not his rate use and that it was a mistake on the intention that the title to the property should part of said Barry, in making said deed to vest in appellant in her separate right; secplaintiff, in not using apt words as would ond, because the evidence is insufficient to make said deed upon its face a conveyance support the finding that it was the intention to the sole and separate use of plaintiff, and of the appellee and the appellant that she that said Barry fully intended that said deed should hold the title in her separate estate in should be in form sufficient to make the same trust for the benefit of appellee; third, bea conveyance to the sole and separate use cause, it having been the intention of appelof the plaintiff. lee that the deed should convey the property to appellant as her separate estate, and the evidence showing that such conveyance was for the purpose of defrauding appellee's creditors, he cannot recover from appellant the property so intended to be conveyed to her in fraud of his creditors. We will consider these objections to the judgment in the order in which they are presented. "That the understanding with the said Barry with reference as to how his said deed to the plaintiff should read, was had solely with plaintiff, and that the said Barry was never consulted by defendant about such transaction; but the plaintiff, in having such understanding with said Barry, was acting with the consent of defendant, and in accordance with the previous agreement between plaintiff and defendant. "That it was never the intention of the defendant to give said property to the plaintiff by reason of his agreement to have the said Barry deed to show it upon its face, and that the plaintiff knew and understood that she was not to have said property as her own separate estate, nor did she at that time intend to take advantage of said Barry deed and claim said property as her own, but was merely acting with defendant with a view to preventing creditors of defendant from levying execution on said property, and "That the defendant has collected the rents upon the property in controversy during the entire time that plaintiff and defendant have been away from said property, and that the defendant has appropriated the amount so collected to his own use and benefit." The deed from Barry to Mrs. Du Perier does not convey the property to her in her separate right, and on the face of the conveyance the title is in the community estate. If the conveyance had been made directly from the husband to the wife, the title would prima facie have vested in her separate estate, without any recitals in the conveyance evidencing such intention on the part of the grantor. The apparent title having been in the community under a deed to appellee executed subsequent to his marriage, and which recites a valuable consideration, his conveyance to his wife would have put the title in |