fore this suit was instituted, she made improvements upon the same of the value of about $250. These improvements were made with the knowledge of the Bosleys, and without any objection or express assertion on their part to plaintiff in error or to her agent of their claim to the property. The proposition contained in and urged under appellant's first, second, third, and fourth assignments of error are, in substance, that the verdict of the jury and judgment rendered thereon are unsupported by the evidence, in that (1) the overwhelming weight of the evidence showed that neither plaintiff in error nor Joseph M. Dickson, her agent in the transaction in question, had any knowledge of any invalidity affecting the deed of conveyance from J. R. Bosley and wife to W. J. Betterton, or affecting the note for $1,200 executed by Betterton, at the time plaintiff in error bought said note; (2) that when an agent of an investor, in violation of his principal's instructions, purchases a simulated vendor's lien note upon the homestead of a third party, in collusion with the latter, and conceals his knowledge from his principal, the principal will not be bound by the agent's secret knowledge. The undisputed evidence shows that the property in controversy was the homestead of defendants in error when the deed through which plaintiff in error claims was executed by them to W. J. Betterton, and such fact was well known to Mr. Dickson, plaintiff in error's agent. That such conveyance was without consideration, simulated, and made merely for the purpose of obtaining the loan, is amply supported by the testimony. The evidence does not show that the plaintiff in error had any personal knowledge of the simulated or colorable character of any of the transactions resulting in the loan or purchase by her of the $1,200 note, but that Mr. Dickson, who negotiated the loan and purchase of the note for her, was fully authorized, subject to her approval, to make loans and investments for her, is undisputed. As to whether or not Mr. Dickson knew that the conveyance from J. R. Bosley and wife to W. J. Betterton was merely colorable, and not intended to convey the title of the property therein described, is conflicting. Dickson swears that he did not know that such was the character of said deed, but believed the same was a genuine conveyance, as shown upon its face. the other hand, J. R. Bosley testified to a state of facts and circumstances showing that said deed was made by himself and wife solely for the purpose of securing the loan, without any intention on their part or the part of W. J. Betterton that the title to the property should thereby pass; and that the said Dickson was aware of these facts. Here, then, we have the testimony of two witnesses in direct conflict upon the issue involved. The one testified to a state of facts which would authorize a verdict in favor of the plaintiff in error, and the other to a state On of facts which would justify and support a verdict for the defendants in error. In such case it was the peculiar province of the jury to weigh the testimony and decide the question. This they did favorable to defendants in error, and under the settled rule of practice in this state we would not be warranted in disturbing their finding. The next question presented is, does the evidence so conclusively establish that Joseph M. Dickson colluded with defendant in error J. R. Bosley to defraud his principal that his knowledge of the homestead character of the property in controversy and that the conveyance of the same to Betterton by defendants in error was merely colorable cannot be imputed to her? Plaintiff in error contends that the verdict of the jury must necessarily have been based upon the evidence adduced by defendants in error, and that such evidence requires this question to be answered in the affirmative. We do not concur in this contention. Proof that Dickson knew that defendants in error had conveyed their homestead to W. J. Betterton without consideration, and with no intent to convey the title, with a view of procuring a loan that they could not otherwise procure, was not sufficient to relieve Mrs. Morrill of the legal effect of such knowledge on Dickson's part. To have had that effect the evidence must further have shown collusion between the said Dickson and J. R. Bosley for the purpose of deceiving and defrauding her. If Dickson intended to defraud his principal in the transaction, then he ceased to represent her, and the law will not impute notice to her of the facts known to him. But although Dickson knew that the conveyance to W. J. Betterton was simulated, yet if, without any intention to deceive or defraud Mrs. Morrill, and acting in her behalf, he elected to make the loan in question, then his knowledge will be imputed to his principal, Mrs. Morrill, and she cannot escape the consequences of his acts. Taylor et al. v. Flynt, 77 S. W. 964, 8 Tex. Ct. Rep. 938; Cooper v. Ford (Tex. Civ. App.) 69 S. W. 487; Campbell v. Crowley (Tex. Civ. App.) 56 S. W. 373; Building & Loan Ass'n v. Dailey (Tex. Civ. App.) 42 S. W. 364; Association v. Parham, 80 Tex. 518, 16 S. W. 316: Joseph M. Dickson testified that in February, 1892, he had had large experience in the matter of the homestead laws of Texas, and knew such laws; that shortly before he bought the $1,200 Betterton note J. R. Bosley told him that he (Bosley) had sold a piece of property on Live Oak street to W. J. Betterton; that he would get vendor's lien notes on the property for $1,700, and wanted to know whether he (Dickson) could cash them; that he told Bosley if the title was good, and the property satisfactory, his aunt, Mrs. Morrill, would buy the notes; that he inquired about the value of the property, and took the matter up with Mrs. Morrill; that afterwards Bos The court did not err in refusing to set aside the verdict and grant plaintiff in error a new trial on the ground that she had shown title to the property in controversy by limitation. Plaintiff in error never occupied the property herself, and whether the tenants in possession were her tenants or the tenants of Bosley and wife was a disputed issue. That issue was fairly submitted to the jury, and their finding in favor of defendants in error upon it, in view of the evidence contained in the record, is conclusive upon this court. Nor did the court err in refusing to submit the question of estoppel, invoked by plaintiff in error. The evidence, in our opinion, was not sufficient to authorize the submission of that question, and the court correctly declined to give the special instruction asked. relating thereto. ley called again, and he (Dickson) told him of Dickson existed, and these conclusions that Mrs. Morrill was willing to cash Better- are sustained by the evidence. ton's note on the property for $1,200; that Bosley expressed himself satisfied, and requested him (Dickson) to draw up the papers, which he did; that after the papers were drawn up he gave them to Bosley, who brought them back to him signed up, and that he (Dickson) did not speak to Betterton about the matter; that he never suggested to Bosley anything about deeding the property to Betterton, nor suggested any scheme to him about putting a loan on his homestead, and never fixed any such scheme in his life; that when he cashed the $1,200 note Bosley told him that he had sold the property to Betterton, and he believed Bosley was acting in good faith, and believed the deed and note to be absolutely what they appeared to be; that when he went out to see the property, before the loan, Bosley told him it was his (Bosley's) homestead, and he (Dickson) knew it was such at the time of the loan, and that Bosley and his family were living on it. J. R. Bosley testified that he met Mr. Dickson on the street, and told him he wanted to borrow $1,200 on his homestead on Live Oak street; that Dickson went out and looked at the property, and said he would let him (Bosley) have as much as $1,200; that Dickson suggested to him that in order to get the loan he (Bosley) would have to make a deed to a third party, and suggested Mr. Betterton; that the $1,550 recited in the Betterton deed as paid in cash was put in the deed in that way at Mr. Dickson's suggestion; that he (Bosley) did not then know that a man and wife could not give a straight mortgage on their homestead as security for a loan; that it was not true that he told Dickson that he had sold or contracted to sell his homestead to W. J. Betterton, etc. Now, while the above and other testimony in the record is, in our opinion, sufficient to support the jury's finding that the property in controversy was the homestead of Bosley and wife, and so known to Dickson, and that Dickson knew that the conveyance to Betterton was without consideration, and merely colorable, and intended solely for the purpose of securing a loan by defendants in error on their homestead, yet it does not necessarily imply that Mr. Dickson, in making the loan, had colluded with J. R. Bosley to defraud Mrs. Morrill. Whether or not Dickson had conspired with J. R. Bosley in making the loan, with the intent to deceive and defraud Mrs. Morrill, was an issuable fact under the evidence, for the determination of the jury. It was so regarded by the trial court, and by appropriate instructions submitted to the jury for their decision. By their verdict the jury have said that no such conspiracy was entered into, and no such intention on the part Error is assigned to the verdict of the jury, in that no finding was made and stated therein as to the amount of the taxes due the city of Dallas and lien claimed upon the property in controversy to secure payment of the same. As has been seen, the verdict only disposed of the case as to the issues involved between plaintiff in error and J. R. Bosley and wife. Judgment, however, was rendered by the court in favor of the city of Dallas for the taxes claimed, with a foreclosure of its lien. That the verdict of the jury must find all the issues made by the pleadings and evidence, and in case of a suit for debt and to foreclose a lien, the court has no power to enter judgment of foreclosure of such lien, unless the jury, by their verdict, has made a finding to that effect, are correct propositions of law. Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79, 881. In this case, however, there was never any controversy as to the right of the city of Dallas to recover its taxes and foreclose its lien on the property therefor. This right of the city was pleaded by all parties, and the judgment of the court recites, in effect, that it was admitted on the trial. If, however, it be conceded that it was a fact to be determined and stated in the verdict of the jury, still we are of the opinion the case should not be reversed. The property was adjudged to be the property of Bosley and wife, and the lien foreclosed on it as such. No judgment against plaintiff in error for taxes was rendered, and, as the property upon which the lien was foreclosed was recovered by defendants in error, Mrs. Morrill has no ground of complaint on account of the error pointed out. Such error was harmless, so far as she is concerned, and defendants in error have not complained of it in this court. The judgment of the court below is affirmed. SHELLEY v. NOLEN et al.* (Court of Civil Appeals of Texas, Feb. 22, 1905. On Rehearing, May 3, 1905.) 1. BANKRUPTCY-FRAUDULENT CONVEYANCESUIT BY TRUSTEE. Under Bankr. Act July 1, 1898, c. 541, § 70, subd. "e," 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], providing that the trustee may avoid any transfer by the bankrupt of his property which any creditor of the bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication, a trustee in bankruptcy may recover property alleged to belong to the community estate, and to have been conveyed to the bankrupt's wife prior to the bankruptcy act, and by her conveyed to defendants, pursuant to a conspiracy, begun before the enactment of the act, and continuing to the institution of the suit, to conceal it from the trustee, and avoid its being subjected to the payment of the bankrupt's debts. 2. EVIDENCE-DECLARATIONS OF BANKRUPT. In a suit by a trustee in bankruptcy to recover property alleged to have been conveyed pursuant to a conspiracy to defraud his creditors, testimony is admissible that the bankrupt stated to witnesses that the property in controversy was his, and that he placed it in his wife's name to prevent his creditors from subjecting it to the payment of debts. 3. WITNESSES · COMMUNICATIONS WITH PERSONS SINCE DECEASED. In a suit by a trustee in bankruptcy to recover property alleged to have been conveyed through the bankrupt's wife to defraud creditors, a witness who is not a party is not incompetent to testify to conversations had with the wife, since deceased, under Sayles' Ann. Civ. St. art. 2302, relating to testimony in actions by or against executors, the suit not being against defendant as an executor. 4. BANKRUPTCY PLEADING CREDITORS. A trustee in bankruptcy suing under Bankr. Act July 1, 1898, c. 541, § 70, subd. "e," 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], to recover property of the bankrupt alleged to have been conveyed in fraud of creditors, must allege the amount of the claims of creditors who were such at the time the fraudulent conveyances were made, and that the assets of the bankrupt estate in his hands were insufficient to pay them. Error from District Court, Travis County; Geo. Calhoun, Judge. Action by George E. Shelley, trustee in bankruptcy of the estate of Andrew J. Heissner, against S. F. Nolen and others. Judgment for defendants, and plaintiff brings error. Reversed. The statement of the nature and result of the suit in plaintiff in error's brief appears to be substantially correct, and is as follows: "This suit was originally filed by George E. Shelley, trustee of the estate of Andrew Jackson Heissner, bankrupt, on the 24th day of May, 1902, against the defendants S. F. Nolen, Adolph Trautwein, Jr., and H. C. Nolen. The plaintiff alleged in his amended original petition, filed April 16, 1904, that on the 30th day of September, 1899, Andrew Jackson Heissner, now deceased, filed in the *Second rehearing denied June 28, 1905. or District Court of the United States for the Western District of Texas, at Austin, his petition in bankruptcy, and on the 6th day of October, 1899, was duly adjudged a bankrupt by the said court, and the plaintiff was thereafter duly appointed trustee of said bankrupt, and qualified as such trustee, and has ever since acted and is now acting as such trustee, and as such has brought this suit. Plaintiff further alleged that on about the 15th day of February, 1898, said Andrew Jackson Heissner, being at that time insolvent, and a debtor of various creditors mentioned in his schedule in bankruptcy, had one G. D. Heissner and wife convey to his wife, Myra Heissner, 91.9 acres of land in Travis county, Texas, being one of the tracts in controversy in this suit; that the consideration for said land was the sum of $320, the community property of said Andrew Jackson Heissner and his said wife, Myra Heissner, but that the title to said property was taken in the name of said Myra Heissner as her separate property; and that the said conveyance to the said Myra Heissner was made in fraud of the creditors of said Andrew Jackson Heissner, and for the purpose of placing said property beyond the reach of said creditors, by reason whereof the title to the said property never passed to the said Myra Heissner as her separate property, but the same became and was the community property of herself and her said husband, Andrew Jackson Heissner, and so remained up to the time of the death of the said Myra Heissner and Andrew Jackson Heissner. Plaintiff further alleged that on or about the 26th day of January, 1898, whilst the said Andrew Jackson Heissner was insolvent and indebted to the creditors mentioned in his schedule in bankruptcy, he had one E. W. Herndon convey to H. C. Nolen 5171⁄2 acres of land in Travis county, Texas, being the other tract of land in controversy in this suit; and that the consideration for said conveyance was the sum of $1,000, the community property of said Andrew Jackson Heissner and his wife, Myra Heissner, which was paid to the said Herndon by the said Andrew Jackson Heissner with the agreement and understanding between the said Andrew Jackson Heissner and the said H. C. Nolen that said property was the community property of said Andrew Jackson Heissner and wife, but that the title should be taken in the name of said H. C. Nolen; and that thereafter, on the 14th day of April, 1898, the said H. C. Nolen, joined by his wife, conveyed the said aforesaid property to Myra Heissner as her separate property, but that there was in fact no consideration for such transfer save and except $1,000 paid by the said Andrew Jackson Heissner to the said E. W. Herndon; and that the said two conveyances were made for the purpose of defrauding the creditors of said Andrew Jackson Heissner, and of placing the aforesaid property beyond the reach of said creditors; and that said property was in truth and in fact, from the date of conveyance to the said H. C. Nolen up to and at the death of the said Myra Heissner and Andrew Jackson Heissner, the community property of the said Andrew Jackson Heissner and his said wife. Plaintiff further alleged that thereafter, on, to wit, the 22d day of June, 1899, the said Myra Heissner, being at that time on her deathbed, executed her last will and testament, whereby she bequeathed to S. F. Nolen, her brother, all of the property belonging to her, both real and personal, and on the same day the said Myra Heissner died; that at the time said will was made the said Myra Heissner stated to the said S. F. Nolen and the subscribing witness to said will, and to all persons who were present when said will was executed, that said bequest of property was for the purpose of securing said property to her husband, Andrew Jackson Heissner, from the claims of his creditors, and that said S. F. Nolen was to hold said property for the said Andrew Jackson Heissner until such time as said Andrew Jackson Heissner should demand a conveyance of the same to him, and the said S. F. Nolen accepted said bequest with said understanding and agreement; that in said will said S. F. Nolen was made independent executor; and that said will has been duly probated, and the said S. F. Nolen has taken possession of all the property here in controversy. Plaintiff further alleged that the aforesaid acts of placing the aforesaid property in the name of Myra Heissner and the making of the aforesaid will placing the title to said property in the name of S. F. Nolen were done with the fraudulent intent and design of placing said property beyond the reach of the creditors of Andrew Jackson Heissner, and for the purpose of preventing said creditors from applying the same to the payment of their debts, and that the said Myra Heissner and the said Andrew Jackson Heissner and the said S. F. Nolen were all parties to said fraudulent design and intent, and that all of the aforesaid acts were done in pursuance of the aforesaid design and intent and constitute a single object and conspiracy of defrauding the creditors of said Andrew Jackson Heissner. Plaintiff further alleged that in pursuance of said fraudulent design, purpose, and conspiracy the said Andrew Jackson Heissner subsequent to the death of his said wife, Myra Heissner, filed his petition in bankruptcy as aforesaid, for the purpose of securing a discharge from his said debts, and with the intention, after securing such discharge, of taking a reconveyance of said property from said S. F. Nolen to himself, and thereafter, and prior to the granting of such discharge, the said Andrew Jackson Heissner died. Plaintiff further alleged that subsequent to the death of the said Andrew Jackson Heissner and the death of his said wife, and in further pursuance of said fraudulent scheme and conspiracy, the said S. F. Nolen colluding, conniving, confederating, and conspiring with Adolph Trautwein, Jr., and H. C. Nolan, and each and all of the said parties having notice and knowledge of the aforesaid scheme and conspiracy to defraud the creditors of Andrew Jackson Heissner, for the purpose of perpetuating the aforesaid fraud, and for the purpose of placing all the property herein described beyond the reach of the creditors of said Andrew Jackson Heissner, and for the fraudulent purpose of placing all of the property here in controversy beyond the reach of this plaintiff, as trustee in bankruptcy for said creditors, and for the purpose of fraudulently and falsely claiming and asserting that the said Adolph Trautwein, Jr., and H. C. Nolen were and are innocent purchasers of said property, did enter into a fraudulent conspiracy with one another, in pursuance of which the said S. F. Nolen has conveyed a part of the property here in controversy to H. C. Nolen fraudulently and without consideration, and has conveyed another part of said property fraudulently and without consideration to Adolph Trautwein, Jr.; and that the conveyances of the aforesaid property to said Adolph Trautwein, Jr., and the said H. C. Nolen were both made with the full knowledge on their part of all of the facts herein before set forth, and specially with the knowledge that said property was the community property of said Andrew Jackson Heissner and his said wife, Myra Heissner, and with a full knowledge of the manner in which and the purpose for which the aforesaid will of Myra Heissner in favor of S. F. Nolen had been executed. Plaintiff further alleged that upon the adjudication of the bankrupt herein the title to the property here in controversy vested in plaintiff, as trustee of the said Andrew Jackson Heissner, and that by reason of the facts hereinbefore alleged none of the defendants, by reason of the conveyances to them, have acquired any title to said property, but that all of said property belongs to the estate of said bankrupt, and the creditors of said bankrupt had no notice of the fraudulent acts charged herein, and by reasonable diligence could not have discovered same until, to wit, about the thirty days prior to the filing of the original petition in this cause. "Plaintiff further alleged that the reasonable value of the use and occupancy of said two tracts of land was at the time of the fraudulent conveyance of the same, and has been ever since, the sum of $1 per acre per annum, and that by reason of the aforesaid fraudulent conveyance and the conspiracy to defraud the creditors of said bankrupt the plaintiff has been deprived of the possession of said two tracts of land ever since the adjudication of bankruptcy of said Andrew Jackson Heissner and of the use and occupancy of same; by reason whereof he has been damaged in the sum of, to wit, $2,000. Plaintiff further alleged that one of said tracts of land, containing 91.9 acres, and fraudulently conveyed to Adolph Trautwein, Jr., was at the time of said conveyance of the market value of $10 per acre, and of the aggregate value of $919, and that the other tract, containing 5171⁄2 acres of land, fraudulently conveyed by said S. F. Nolen to H. C. Nolen, was at the time of said conveyance of the market value of $6 per acre, and of the aggregate value of $3,105, and that by reason of the aforesaid fraudulent conveyances plaintiff has been damaged in the aforesaid sums of money; and, in the event that the plaintiff be held not entitled to recover said land from defendants Adolph Trautwein, Jr., and H. C. Nolen, then in that event he have judgment against the said S. F. Nolen for the value of the two several tracts of land conveyed by him to said Joseph Trautwein, Jr., and the said S. F. Nolen. In conclusion plaintiff prayed that in his capacity as trustee of the estate of Andrew Jackson Heissner, bankrupt, he have judgment for the recovery of the aforesaid real estate from all of the defendants, together with his damages for the use and occupation of the same, and the cancellation of the aforesaid fraudulent conveyances, or, if it be found that the said Adolph Trautwein, Jr., and the said H. C. Nolen did not participate in the fraud of the said S. F. Nolen in attempting to place the said two tracts of land beyond the reach of creditors of Andrew Jackson Heissner, then in that event he have judgment against the said S. F. Nolen for the value of said two tracts of land. "The defendant S. F. Nolen answered as follows: (1) General demurrer. (2) Special demurrers. (3) Plea alleging misjoinder of parties defendant and misjoinder of causes of action. (4) General denial. (5) Plea setting up two, three, four, and five years' statutes of limitation. (6) Said defendant further answered that Andrew Jackson Heissner is dead, and that the said Myrá Heissner is dead, and plaintiff claims by and through the said Andrew Jackson Heissner and through said Myra Heissner, and that these defendants claim through them also, and that, if the said Andrew Jackson Heissner committed the acts of fraud alleged by plaintiff, then the said Andrew Jackson Heissner, if alive, would be estopped, and the plaintiff, as his legal representative, is estopped, from taking advantage of same, and that as between him and his wife, Myra Heissner, they are bound by said acts. (7) Defendant further answered that the said Andrew Jackson Heissner was finally discharged as a bankrupt on the 20th day of April, 1900, and that this suit was not brought within two years from that date, and therefore plaintiff cannot recover herein. (8) Defendant further answered that he and those under and through whom he deraigns title to the lands in controversy committed no acts of fraud, and he specially denies all such, and says if said Myra Heissner, Andrew Jackson Heissner, H. C. Nolen and A. Trautwein, Jr., committed any acts of fraud, he is not aware of it, and was no party to it; that he owned said lands by good and perfect title, without any knowledge of any fraud at the time of the disposal of same to the said H. C. Nolen and A. Trautwein, Jr.; that he was an innocent owner and holder of said land up to the date of his sale thereof to said H. C. Nolen and A. Trautwein, Jr., and that the plaintiff therefore is not entitled to recover any judgment herein against him. "Defendant H. C. Nolen answered in this cause as follows: (1) General demurrer. (2) Special demurrers. (3) Special demurrer alleging misjoinder of parties defendant and misjoinder of causes of action. (4) Special demurrer interposing the three and four years' statute of limitation. (5) Defendant answered specially, denying that the 5171⁄2acre tract was ever purchased in his name for the benefit of Andrew Jackson Heissner, and denying that the same was thereafter by him conveyed to Myra Heissner, wife of Andrew Jackson Heissner, for the purpose of defrauding the creditors of Andrew Jackson Heissner and placing said land beyond their reach, and alleging that said land was purchased from said E. W. Herndon by himself and paid for with his own money, and that the same was thereafter sold by him to Myra Heissner, and that the purchase money for same was paid to him by the said Myra Heissner, and was her separate property; that defendant denies that the said will of Myra Heissner was made for the purpose of perpetrating said fraud and of keeping said land beyond the reach of the creditors of Andrew Jackson Heissner, and denying the same was made in any secret trust or understanding in favor of Andrew Jackson Heissner; and defendant further alleged that the said 517-acre tract was purchased by him on April 3, 1902, from S. F. Nolen in good faith, and that he paid to the sald S. F. Nolen the sum of $750, and assumed the payment of a certain note for $500; and that this defendant purchased said land without notice or knowledge of any facts affecting the right of the said S. F. Nolen to convey same to him, and that he was not, and never has been, a party to any fraudulent conspiracy with Adolph Trautwein, Jr., S. F. Nolen, Myra Heissner, and A. J. Heissner to defraud the creditors of Andrew Jackson Heissner; and that the allegations in plaintiff's petition were falsely and fraudulently made for the purpose of conferring jurisdic tion on this court to try in this suit the various and separate causes of action here involved. (6) Defendant further answered, pleading the three and four years' statute of limitation. (7) Defendant, by way of crossaction, asked judgment against S. F. Nolen upon his warranty for the value of the 517acre tract in case the same should be recovered by plaintiff, and have judgment against the said S. F. Nolen for whatever |