This is a second appeal (65 Texas, 710.) The facts are substantially the same in both. The assignments of error which are insisted upon in the brief of appellants question the sufficiency of the evidence to support the verdict found again for the plaintiffs, and complain of the charge of the court in that it failed to submit clearly *415the issue whether the trust deed was in contravention to section 17 of the act of March 24, 1879.
The case was reversed on the former appeal because of the charge of the trial judge in limiting the action of the jury upon the alleged fraud to the inquiry whether “there was a conspiracy or combination to defraud between the grantors and either the trustees or beneficiaries provided for;” the court holding that “there was testimony from which the jury may have believed the grantors were actuated by a fraudulent motive, and that the plaintiffs had notice of it, and yet that the plaintiffs were not imbued with the ranker guilt * * usually attached to the words combination or conspiracy.”
The instructions now under consideration exhibit care and accuracy in their preparation. They covered eveiy phase in the testimony ; explained the law upon every issue; submitting to investigation the considerations, motives and purposes of the parties to the transaction.
The parties themselves were examined, and their cmdibity was a matter for the jury. The deed of trust, with all the light the circumstances could give, before, at the time and after its execution, the manner of testifying by the witnesses, and their standing, were all to be passed upon under the instructions of the court in reaching a verdict. None of the facts in evidence are denounced by our courts as fraudulent, per se; they are but badges or evidence of fraud; strong they may be, and the strength increased by their number, yet the jury were authorized to consider them with the full details developed, and if satisfied with the honesty and fairness of the transaction the jury could so find.
Edmiston’s subsequent correspondence was equivocal and a proper subject for cross examination, when tendered as a witness, and affecting, perhaps, his credibility, yet his letters were not admissions against the plaintiffs.
The rights of the beneficiaries in the trust deed vested at its making, and no subsequent acts or declarations of Edmiston could divest the beneficiaries of whatever of rights they had acquired. To admit such declarations made after the act they are used against in absence of collusion established by other testimony, other than a subject for cross examination, has been held sufficient error to reverse. (Winchester Partridge Co. v. Creary, 116 U. S., 101.)
The “badges of fraud” appearing in the case have all been *416subjects of discussion by our courts. (Ellis v. Valentine, 65 Texas, 545; Lewy v. Fischl, 65 Texas, 311; Allen v. Carpenter, 66 Texas, 140; Scott v. McDaniel, 67 Texas, 346; Oppenheimer v. Halff, 68 Texas, 409.) There was an excess in value of the goods over the debts secured, but the residue was not concealed or subjected to loss. That the secured debts were actual is not controverted. There is testimony that the purpose of the transfer was to secure the creditors named, and no other is shown. The compensation for the trustees was reasonable; the intent of the makers and the innocence of the trustees and beneficiaries under the law were subjects of the charge of court and were passed upon by the jury.
Though this court upon the testimony might have reached a different result, y et in the effect of the testimony to establish fraud the verdict will be sustained. The issue is whether the circumstances with the law applied show the alleged fraud. The jury negative it, and they had the right to do so. The burden of proving fraud was upon the defendants.
The assignment of error against the charge complains of the refusal of the court to give the following: “ If at the time of the trust deed, or before J. J. Whatley had been informed of the existence of the trust deed and before he had accepted the trust, Harby, the other trustee, made an agreement with Ed- ■ niston by virtue of which Edmiston was to re-enter the store and sell the goods out at retail in due course of business as clerk or agent of the trustee at a salary for his services for celling goods. Said trust deed is void and plaintiffs can not recover.” Upon this subject the court had already charged: •' If you believe from the evidence that at the time of the execution of the trust deed than was a verbal understanding between the plaintiff, J. D. Harby, and E. E. Edmiston that Edmiston was to remain in charge of the goods transferred and control the business of selling the goods out at retail, or if you believe from the evidence that Edmiston was the managing partner of the firm and controlled and managed the business of the store before the deed of trust was made, and that after it was made he continued in charge and control of the goods transferred, then under such circumstances, the plaintiffs can not recover.” The charge as given, substantially submits the seventeenth section of act of March 24, 1879. The test of legality, of course, depends upon whether the transfer be real and honest. A transaction not intended to transfer, or not in fact *417transferring the property, can not be real, nor any such pretence be honest. While the subsequent contract by the trustee with the debtor to aid in the sale is a subject of inquiry as a circumstance for what effect the jury may determine, yet in itself it could not affect rights previously acquired, if at all, by the beneficiaries. The charge asked did not submit the true issue and its refusal was not error.
Opinion delivered March 20, 1888.There is complaint that counsel for plaintiff indulged in objectionable words in his address to the jury. The judge below at the time corrected the counsel. The words were retracted by counsel, he requesting the jury to give no attention to the language. Counsel for defendant could have called the attention of the court by asking a charge so that the jury might be further cautioned. But it is not probable that the remark objected to affected the verdict.
There are no errors found in the record. The case is affirmed.
Affirmed.