given the no longer questioned right of emi- | country, or because it will be chiefly of servnent domain. The purposes manifested by ice in bringing out the products of a particuthe terms of the act establish, conclusively, lar mine, even if the stockholders of the railas we will show, a public use, to which end road are also interested in the business the private property of the citizen may be which its construction will especially benetaken, if the citizen is compensated therefor fit." These principles are well settled, and in the manner provided by law. have often been declared by the text-writers [3] It seems to be a settled rule that where and in the decisions of the principal states, the use for which property is sought to be including this state. Elliott, R. R. §§ 961, taken under the power of eminent domain is 962; 20 C. J. pp. 558, 565; 10 R. C. L. p. 43; public, the necessity and expediency of ex- Lewis, Em. Dom. §§ 254, 263, 264, 313; Maercising the power, and the extent to which dera v. Granite Co., 3 Cal. App. 668, 87 Pac. the property thereunder is to be taken, are 27; Kansas & T. Coal Ry. v. Coal Co., 161 political or legislative, and not judicial, ques- Mo. 288, 61 S. W. 684, 51 L. R. A. 936, 84 Am. tions, the legislative determination of which St. Rep. 717; Butte, A. & P. Ry. Co. v. Monis conclusive, and not reviewable, by the tana U. Ry. Co., 16 Mont. 504, 41 Pac. 232, 31 courts. Those questions rest wholly within L. R. A. 298, 50 Am. St. Rep. 508; Phillips v. the legislative discretion. 2 Elliott, R. R. § Watson, 63 Iowa, 28, 18 N. W. 659; Caretta v. 952; Lewis, Em. Domain, § 255; 20 C. J. Pocahontas Co., 62 W. Va. 185, 57 S. E. 401; 624; 10 R. C. L. §§ 158, 159; Croley v. Rail- State v. Court, 42 Wash. 675, 85 Pac. 669; way (Tex. Civ. App.) 56 S. W. 615; Railway Coal Co. v. Railway, 97 Ark. 495, 134 S. W. v. Malone (Tex. Civ. App.) 190 S. W. 809. 634, Ann. Cas. 1912D, 1000; Railway v. Fer[4] It is equally well settled that the ques- ris, 26 Tex. 588; Borden v. Irrigation Co., 98 tion of whether the use for which private Tex. 494, 86 S. W. 11, 107 Am. St. Rep. 640; property is taken is a public use is a judicial Chapman v. Railway (Tex. Civ. App.) 138 S. question, to be determined in the courts, al- W. 440; Mangan v. Transp. Co., 18 Tex. Civ. though where the Legislature declares a par- App. 478, 44 S. W. 998. ticular use to be a public use the presump- The policy evidenced by these rules has tion is in favor of this declaration, and will been evolved out of long years of developbe binding upon the courts unless such use ment and progress in this country. The reis clearly and palpably of a private charac-sults of its application have proven its soundter. Elliott, R. R. § 952; 1 Lewis, Em. Dom. ness and reasonableness, and particularly so § 251; 20 C. J. 551; Mangan v. Transp. Co., 18 Tex. Civ. App. 478, 44 S. W. 998. with reference to railroads. When these rules are applied to the case presented here, [5] The question of whether or not in a appellees must be denied the relief sought. given case the use is a public one depends The Legislature, in its discretion, has conupon the character, and not the extent, of clusively determined that a public necessity such use. It depends upon the extent of the exists for the exercise of the power of emiright the public has to such use, and not up-nent domain to accomplish the purposes of on the extent to which the public may exercise that right. It is immaterial if the use is the act in question, and has lawfully delelimited to the citizens of a local neighbor-gated that power to a railroad corporation, hood, or that the number of citizens likely to which is under the law a public highway and avail themselves of it is inconsiderable, so common carrier, and which, shorn of the long as it is open to all who choose to avail power to discriminate, is open to the use of themselves of it. The mere fact that the ad- the public at large. These facts exist as a vantage of the use inures to a particular in- matter of law, and conclusively constitute dividual or enterprise, or group thereof, will the use of the property to be taken as a pubnot deprive it of its public character. Nor lic use. does the public use, if a railroad, depend up- [6] But we do not think it necessary to inon its length, nor whether it is only a branch voke these rules in this cause. We think the road, nor that its equipment is to be fur- facts set out in appellees' sworn pleadings nished by another corporation, nor that its themselves affirmatively show such public stockholders are also stockholders in a cor- use of the land sought to be condemned as to poration which will be primarily benefited come within the purview of the Constitution by its construction. If a railroad invoking and statute. As we have said, the status of the power of eminent domain is to be a high- a railroad, as such, is not determined by its way, or a common carrier, and open to the length; whether it is a mile long, or a thoupromiscuous and uniform use of the public, sand miles long, it is a railroad nevertheless. such facts conclusively make it a public use, Railway v. Grain Co., 52 Tex. Civ. App. 156, and the extent of the public need and prob- 114 S. W. 436; Railway v. Grocery Co., 55 able use thereof is not a question for the Kan. 525, 40 Pac. 899; U. S. v. Stock Yards courts, and may not be inquired into; and Co. (D. C.) 161 Fed. 919; U. S. v. Stock Yards the right to take property "will not be de- (C. C.) 162 Fed. 556. Nor does the fact that nied a railroad corporation having proper the railroad traverses only an undeveloped authority from the Legislature, merely be- country affect the question under consideracause it is to run through a sparsely settled tion. This has been true of nearly all pio (238 S.W.) neer railroads. Development of the country ficulties, but we have reached the conclusion has invariably followed the construction of that the provisions of the general statute such roads, industry is encouraged, natural were intended to apply to corporations orresources are uncovered and rendered avail- ganized under section 54, art. 1121, and were able, fields of employment and activity en- available to appellant railway company. The larged, and the products of this development provisions of the general statute are by exare transported, by the very agency which press terms made to apply to "any railroad made them available, to other parts of the corporation," and while appellant company country to add to the welfare, comfort, and was not organized under the general railroad convenience of the general public, and thus statutes (title 115) it is nevertheless a "rail- . are created the public benefits and uses road corporation," and nothing else, and we which warrant the exercise of the power of perceive no reason for excluding it from the eminent domain. In this particular case the operation of a statute which precisely deprimary objective of the road is to supply a scribes it in designating the corporations means of transportation of the products of subject to the provisions thereof. The artian asphalt mine, which has become an im- cles providing a method of condemnation in portant, if not essential, industry in this title 115 are not made to apply only to "any state. If its purposes or usefulness were re- railroad corporation incorporated under the tricted to that one particular use, or if the provisions of this title," but to "any railroad uses to which it is to be put were optional corporation." As the Legislature did not with the corporation, a different question see fit to expressly restrict the operation of might be presented. But its uses are not, the provisions of the general statute to railand cannot lawfully be, so restricted. If the road corporations created thereunder, we are product of this particular mine is so certain without authority to interpolate that restricand of such magnitude as to warrant the tion into it. construction over difficult ground of a line of railroad for the purpose of transporting it, as seems to be the case, then the general public may, and probably will, explore and develop that entire section, for this or any other mineral, and the product of such develop- be dissolved. ment, or any present or future development, industry, or activity, will be afforded an outlet, and this outlet becomes a public use The judgment heretofore entered herein will be set aside and the opinion thereon withdrawn, and it is now ordered that the judgment of the court below be reversed, and judgment here rendered that the injunction to which individual property rights must DAVID et ux. v. STATE BANK OF GROOM. yield when compensated for under the law. We conclude that subdivision 54 of article (No. 1920.) 1121 is valid as against the objections raised (Court of Civil Appeals of Texas. by appellees, and that the purposes of the March 1, 1922.) Amarillo. 181, 182-Loss or destruction of deed does not divest grantee of title. The loss or destruction of a deed by a hus her title to the land conveyed thereby. public use as to entitle it to exercise the pow-band to his wife does not divest the wife of er of eminent domain given it under the terms of the act in question. 2. Fraudulent conveyances 64 (2)-Intent of deed by husband to wife held not to affect wife's right to rely on prior deed. to Where a husband had validly conveyed land his wife and he subsequently executed another deed to her conveying the same land because the first deed was lost before being recorded, which deed was attacked as in fraud of creditors, the intent of the grantor cannot under the former deed nor make her acceptance affect the wife's right to rely upon her title of the latter deed void as to her. [7] We recur, then, to the question of whether or not the statutes afford any method of procedure by which the corporation here involved may lawfully condemn lands for the use of its right of way. Article 1121, under which the corporation obtained its charter, provides no method of condemnation, either directly or by adoption of a method provided by any other statute, and appellees contend that these facts render the corporation without any such means. It is conceded by the company that unless the methods of proceeding provided in the general railroad condemnation statutes (chapter 8, tit. 115, art. 6481 et seq.) are available to it for the purpose Where a husband had validly conveyed land of condemning lands for its use, it is without to his wife while not indebted, but subsequently, at a time when he was insolvent, executed any method for that purpose, but contends a deed to her conveying the same land because that those statutes do in fact apply to it, the first deed was lost before being recorded, thus giving it a full remedy. The decision the last deed was not void as to creditors, since of the question has not been without its dif-it took nothing from them upon which they For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Fraudulent conveyances 49(1)-Deed to replace former deed by husband to wife held not void as to creditors. had a right to rely for the payment of their | 10. Trusts 23-Trust in favor of wife held debt. not subject to registration laws. 4. Fraudulent conveyances 206(1), 271(1) -Conveyance, whether voluntary or not, not fraudulent as to one not a creditor when given; burden on plaintiff to prove indebtedness. Where a husband deeded land to his wife, whether the deed was on a valid consideration or a voluntary conveyance, it would not be fraudulent as to plaintiff either under Rev. St. arts. 3966 or 3967, unless at that time the husband was indebted to plaintiff, the burden of establishing which fact was upon plaintiff. 5. Fraudulent conveyances 210 Wife's right not affected by husband's creditor's want of notice of deed, if he knew land was her separate property. Where a husband conveyed land to his wife, the wife's right to rely on the deed is not affected by the fact that a creditor of the husband did not have notice of the existence of the deed, if he was charged with notice that the land was the separate property of the wife when he filed his abstract of judgment. 6. Fraudulent conveyances 210-Deed held notice that property conveyed was wife's separate estate. Where a deed was given by a husband to his wife to replace his prior deed which had been lost before being recorded, such correction deed, when duly recorded, was notice to the husband's creditor and to all the world that the property was the wife's separate estate paid for by her separate money. 7. Fraudulent conveyances 208-Deferred payment out of community funds held not to make title of wife fraudulent as to one not then a creditor of husband. Where a husband deeded land to his wife purchased in the names of both, but part of which had been paid for out of her separate funds, that a deferred payment was made out of the community funds does not render the wife's title as to that portion fraudulent as to one who was not then a creditor of the husband. 8. Fraudulent conveyances 310- Findings as to fraudulent conveyances held conflicting. Where it was claimed that a conveyance by husband to wife was fraudulent as to creditors, a finding that the wife held the community interest in her name only held to conflict with a finding that the land was conveyed to her long before, and that later deed to her was given while the husband was not indebted, giving notice that the property was her separate estate, so that a judgment rendered on the verdict against the wife could not stand. Where one before he secured a lien on land as a creditor had notice that the land belonged to the debtor's wife's separate estate, such creditor will not be protected under Rev. St. art. 6824, he not having secured his lien without notice, a "creditor" who is protected under the statute being one who has acquired a lien by a proceeding at law, and not a simple contract creditor or one holding a contract lien. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Creditor.] 13. Husband and wife 129(3)—Allowing title to remain in name of husband and wife held insufficient to estop wife as against creditors. Where by mistake land was conveyed to husband and wife when it was intended to be conveyed to the wife only, that she permitted the title to remain on record in the name of her husband and herself held not under the evidence sufficient to raise an issue of estoppel as to a creditor of the husband; it not appearing that the credit was extended on the faith of the husband's apparent ownership of the land. Appeal from District Court, Armstrong County; Henry S. Bishop, Judge. Separate actions by State Bank of Groom against Thomas J. David and wife in trespass to try title, and by Mrs. Thomas J. David and husband against the Bank to restrain a levy and sale of land under a judgment against her husband. Cases tried as if consolidated, and Thomas J. David and wife appeal. Reversed and remanded. S. E. Fish, of Amarillo, and J. S. Stalling, of Claude, for appellants. Hugh L. Umphres, of Amarillo, for appellee. HUFF, C. J. This is an appeal by David and wife from a judgment in favor of the appellee bank, establishing a judgment lien and to foreclose the same against an undivided 13/23 interest in and to 320 acres of land in Armstrong county, save and except a homestead of 200 acres to be thereafter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) designated by David and wife, within 10 days | ed, with no recital therein rebutting the after notice to them by the officer to whom presumption of title in the community, and an order of sale should be delivered for ex- that the deed to Mrs. David above set out ecution, and dissolving an injunction issued at the instance of David and wife, restraining the levy and sale of the land under a former judgment against Thomas J. David, and in favor of the appellee bank. The above judgment was obtained in a consolidated suit. The bank first brought suit against David and wife in trespass to try title and by second count to foreclose a judgment lien in its favor. The appellants answered this action not guilty, general denial, and specially that the entire 320 acres was the separate property of the wife, paid for by her separate funds. Thereafter Mrs. David brought suit against the bank, joined by her husband, seeking an injunction restraining the levy and sale of the land under the judgment lien against her husband. It seems the cases were thereafter tried as if consolidated, but we find no order to that effect or for repleader in the consolidated cause, but the case seems to have been prosecuted under the numbers of the two first suits. The pleadings of each party partake both of an original petition and an original answer and so with reference to the supplemental pleadings. From an examination of the various pleadings we gather the issues were substantially as follows: The appellee bank alleged that on the 2d day of July, 1920, it recovered a judgment against Thomas J. David for the sum of $3,469.34, with interest from the 10th of August, 1920, the date of the rendition of the judgment, at the rate of 10 per cent, per annum. That the appellee caused an abstract of judgment to be recorded in the county clerk's office of Armstrong county, where the land in question is situated, on the 16th day of August, 1920, and duly indexed, fixing a valid and subsisting lien on all real estate owned by Thos. J. David. That the judgment was unsatisfied except $15.75, credited thereon. That the community estate of Thomas J. David and Nora R. David owned the 320 acres of land at the time of the recordation of the judgment lien. That on or about August 6, 1920, Thomas J. David made a pretended conveyance of the land to his wife, Nora R. David, to prevent the appellee from collecting its debt, which was then in suit and just four days before judgment was entered. That thereafter Thomas J. David was not left with sufficient property to pay his debts. That the deed was as to appellee fraudulent and void and should be canceled. That at the time appellant bought the property in 1908 a deed was executed to the community and so recorded in Armstrong county, where it rested until the attempted conveyance aforesaid. It is also alleged in a separate pleading that the original deed in 1908 was made to Thomas J. and Nora R. David, jointly, and so record was given to hinder and defraud creditors, and especially appellees, in the collection of their just debts, and kept secret until after the indebtedness accrued on which the aforesaid judgment was obtained against Thomas J. David. That when the deed to Mrs. David was executed by her husband, he was insolvent and unable to pay his debts, and the deed is therefore void as to appellee. That they bought the land wholly, or at least in part, with community funds, and the land is therefore subject to execution against T. J. David. The appellants, David and wife, plead that the 320 acres of land is and was the separate property of Mrs. David, bought with funds that she received from the estate of her deceased father and mother. They deny that the conveyance of August 6, 1920, from T. J. David to his wife, was made for the purpose of hindering or defrauding the appellee, but allege that, when the property was purchased in 1908, the scrivener was instructed to write the deed vesting the title in Mrs. David as her separate property, but in the absence of the appellants at that time from the state, instead of so drafting the deed, through error, a conveyance was made to Mr. and Mrs. David jointly. That the land was bought and paid for by the separate property of the wife, as aforesaid. Thereafter, on or about 1915, Thomas J. David, in order to make the deed and records speak the truth, executed, acknowledged, and delivered to Nora R. David a deed conveying the land to her, thereby vesting in her all title which might be shown of record that he had in the land. That deed was, after delivery to the wife, lost or destroyed. As soon as appellants learned of this on July 28, 1920, Thomas J. David executed another deed conveying the title to his wife, Nora R. David, which was executed in lieu of the deed before mentioned, which had been lost or destroyed. It is alleged in the original answer to appellee's suit that the land had been paid for out of Mrs. David's separate funds, and all the payments which had been made thereon had been paid out of her separate funds received from the estate of her father and mother. They also plead their homestead was situated on the land and that they were entitled to 200 acres therein as such. The record shows on the 10th day of August, 1920, the appellee bank obtained a judgment against Thomas J. David for the sum of $3,469.36, principal, interest, and attorney's fees, with 10 per cent. interest from the date of the judgment, foreclosing a chattel mortgage on certain personal property, stock, and farming implements, and which had also covered growing crops on the land in question; the judgment reciting that the mortgage liens be foreclosed on the personal property therein described as they existed March 29, 1919, December 13, 1918, and May 2, 1918. Order of sale on the above judgment and return thereon showing a levy on one horse, a disc and harrow, and a sale thereof, which brought $50, and after paying costs left $15.75 to be credited on the judg ment. Abstract of the above judgment in the cause of appellee bank against Thomas J. David, No. 379, recorded August 16, 1920, at 9 a. m., giving date of judgment August 10, 1920, for the amount of $3,469.36. The judgment is properly indexed. deed executed in 1915 at the time it recorded its abstract of judgment on the 16th day of August, 1920; that it was not the intention of Thomas David, in paying the consideration out of the community fund, that it should be applied on the indebtedness due by him to his wife. We believe this appeal may properly be disposed of under the tenth assignment of error, which is to the effect that the finding by the jury that Thomas J. David in the year 1915 executed and delivered to his wife a conveyance to the land in question, and also propositions 3 to 6, inclusive, asserting that the possession and occupancy of the land by the wife and the deed of date July Deed from C. H. Harris and wife to Thom-28, 1920, and the record thereof, were suflias J. David and Nora R. David, conveying cient to charge appellee with notice of her the land in question for a recited considera- right. tion of $9,200. Cash paid $4,000, and deferred payments $1,000 due June 10, 1909, $2,100 due June 10, 1910, $2,100 due June 10, 1911, with interest at 6 per cent. The deed retains a vendor's lien to secure payment of the notes and is dated June 10, 1908, duly recorded in the deed records of Armstrong county, June 23, 1908. Deed from Thomas J. David to Nora R. David, dated July 28, 1920, to the land in question, filed and recorded August 6, 1920, in the deed records of Armstrong county. The recitation in the deed is as follows: "For and in consideration of the sum of one dollar to me in hand paid by Mrs. Nora R. David, receipt of which is hereby acknowledged, and for the purpose of vesting the title to the said property in the proper party, the said Mrs. Nora R. David having bought and fully paid for the land hereinafter described with her own separate funds and having my name inserted in said deed as grantee therein, in order to show the title vested in the proper party, have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Mrs. Nora R. David (as her own separate estate) of Armstrong county, Texas, the following described real estate, etc." The evidence is to the effect that in 1902 the father of Mrs. David died, leaving to her from his estate about $1,400 cash and 100 acres of land situated in the state of Indiana. In 1906 the land was sold for $9,000 cash and that same, or at least part of it, was held in the bank until 1908, when the land in question was purchased. The finding of the jury that the cash consideration, $4,000, paid on the land at the time it was purchased from Harris, was paid by Mrs. David out of her separate estate, is amply sustained by the evidence. The evidence also sustains the finding that in 1915 Thomas J. David did execute and deliver a deed to his wife, conveying to her the land in question. There is no evidence in this record showing at that time appellee was a creditor of Thomas J. David or that he had any creditors or was then insolvent and unable to meet his obligations, if he had any, out of other property than the land. [1-4] The loss or destruction of the deed executed in 1915 did not divest the wife of her title in and to the land conveyed thereby. Van Hook v, Simmons, 25 Tex. Supp. 323, 78 Am. Dec. 573; Thomas v. Groesbeck, 40 The case was submitted to a jury upon Tex. 530; Sanborn v. Murphy, 86 Tex. 437, special issues. The jury found that the cash 25 S. W. 610; Stanley v. Epperson, 45 Tex. payment of $4,000 made in the purchase of 644. Whatever may have been the intent of the land was made with the separate funds Thomas J. David in executing the deed of of Mrs. Nora R. David; that since then of July 28, 1920, would not affect the wife's the consideration paid thereon has been paid rights to rely upon her title secured under $2,989.25, all of which was paid out of the the former deed or make her acceptance of community estate and with none of the wife's the latter deed, if she accepted it, to evidence separate funds; that Thomas J. David did such title, void as to her. She had a legal not have sufficient additional property to pay right to secure her interest by the latter deed. the bank's debt after making the conveyance Galbreath v. Templeton, 20 Tex. 45; Milby to his wife July 28, 1920; that such convey- v. Regan, 16 Tex. Civ. App. 352, 41 S. W. ance was made for the purpose of hindering 372. "What it is lawful to do cannot become and delaying his creditors, especially the ap- unlawful by reason of the fact that it is pellee; that Thomas J. David did, in the done through a motive or with an intent not year 1915, execute, acknowledge, and deliver friendly to all creditors. A hindrance or deto Mrs. Nora R. David a deed conveying to lay which does not operate as a fraud upon her the land in controversy; that appellants other creditors is not that prohibited by did not intend that the deed from Harris law." Haas v. Kraus, 86 Tex. 687, 27 S. W. should convey the land to Nora R. David; 256; Bruce v. Koch, 94 Tex. 192, 59 S. W. that appellee did not have notice of the 540. If, as recited in the deed of July 28, |