x999-2" type="rehearing">

ON MOTION FOR REHEARING.

FLY, Associate Justice.

Appellee’s counsel seems to misapprehend portions of the decision of this court. We held it erroneous not only for two charges that are not only similar, but the same, to be given, but also *673 to give two that are so dissimilar as to be directly and pointedly in conflict with each other. We copy two clauses of the charge which are irreconcilable, and which fact alone would ordinarily necessitate a reversal.

The first clause is as follows: “Now if you believe from the evidence by a preponderance of proof, that the transfer to defendant of the property by Ben F. Levy was made with the primary intent of placing such property in such a position that it could not be levied on by his creditors, such intent would render this transfer fraudulent and void as to plaintiffs, and entitle them to a verdict for the property.” This charge is repeated, and then the following is given: “If, however, you should believe that the alleged indebtedness to Isaac Levy was simulated, but that the property conveyed was done with the bona fide intention on the part of Levy to secure the State Nátional Bank in the payment of a debt he was justly due it, and that the property conveyed was not of sufficient value to pay or did not exceed in value debt due said bank, and that the officers, at the time they accepted such security for the debt, knew that the alleged debt to Isaac Levy was simulated and fictitious, you will find for the defendant.” The charges are-directly in conflict.

It is contended that the principle enunciated in the last part of the decision in the case of Howell Bros. v. Mars, 82 Texas, 494, is obiter dictum, and calculated to mislead; but we believe it to be a true enunciation of the law, supported by the current of authority.

We see no reason to rececje from our former position, that the fraudulent intent of the mortgagor, unless known to mortgagee, or unless it was participated in by the mortgagee, will not invalidate the instrument, and that when some of the mortgagees have the guilty knowledge or participate in the fraud, and others do not, the mortgage will be valid as to those who acted in good faith, and invalid as to the others who did not.

Since rendering our original opinion in this case, we have been fortified in our position by a clear and able opinion rendered by Judge Lightfoot, of the Court of Civil Appeals of the Fifth District. Rider & Co. v. Hunt, ante, 238. A number of authorities have been cited in that opinion which sustain the position taken by that court and this. We are unable to agree with the doctrine enunciated in Simon v. Ash, 1 Texas Civil Appeals, 202, or to some extent that of the case of Ellis v. Stewart, 24 Southwestern Reporter, 585. The decision of the last case was rendered by the same court that rendered the decision in case of Eider & Co. v. Hunt, but it antagonizes not only the latter case, but also the one of Johnston v. Shoe Company, 5 Texas Civil Appeals, 398.

In the case of Ellis v. Stewart, the case of Simon v. Ash is seemingly followed, although we are of the opinion that the learned judge did not intend to follow that case to the extent of holding that fraud on the part of the maker of a deed of trust would vitiate it, regardless of the intent *674 of the beneficiary; for on that same day the same court, in passing on a deed of trust says, “ But a mortgage executed by a failing debtor with intent to hinder, delay, or defraud his creditor is void as to any such creditor who has notice of such fraudulent purpose and assists in the execution of it.” Whenever the doctrine is admitted, that a deed of trust may be fraudulent as to some and valid as to other creditors, as is enunciated so often, it must surely follow that the validity of the instrument depends on the good faith of the beneficiary, and not that of the maker. Jones on Chat. Mort., sec. 336.

Delivered February 28, 1894. Writ of error refused May 8, 1894.

Appellees in their motion seem to think that we are ignoring the decision of this case in 75 Texas, 108, but we are not; but with due deference to the court that rendered that opinion, we must differ from it; and neither can we affirm this case, as asked by appellees, in order that it may be appealed to the Supreme Court by appellant.

We are called upon to give our opinions on causes before us in the light in which we see them; and while it is best that well established precedents should be followed, the law does not demand of this court to follow a decision or decisions which it believes not supported by sound principles and the current of decisions throughout the Union. The law contemplates that there would be instances in which Courts of Civil Appeals would differ with the Supreme Court and with each other, and provides a possible remedy for it. Our conclusions of fact and law will be filed as requested by appellees.

The motion for rehearing is overruled.

Motion overruled.

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