whether the payment was in fact made and accepted in satisfaction." The authorities upon this point are numerous and decisive. Pinnell's Case, 5 Coke, 117; Fitch v. Sutton, 5 East, 230; Harriman v. Harriman, 12 Gray, 343; Redfield v. Insurance Co., 56 N. Y. 354; Ryan v. Ward, 48 N. Y. 204; Bridge Co. v. Murphy, 13 Kan. 35; White v. Jordan, 27 Me. 370; Bailey v. Day, 26 Me. 88; Weber v. Couch, 134 Mass. 26; Foakes v. Beer, L. R. 9 App. Cas. 605. In this case there were two distinct and separate claims of similar amount, namely, $15,364.78, one of which was for the direct loss and damage to the property insured, by the fire, and the other was for the incidental cost of raising the propeller and her cargo. The plaintiffs assumed, upon the face of the receipts, to settle with the defendant for both of these claims by the payment of the exact amount of one of them. In other words, they assumed to settle for a moiety of her entire claim, -a claim the legality and justness of which was so far beyond dispute that it could hardly fail to be recognized by the agents of the insurance companies who were present at the meeting in New York. That they intended and supposed they were making a settlement of the plaintiffs' entire claim against them is probably true. But, aside from the parol testimony given by Wickham of the conversation at the meeting, the admissibility of which is the question in dispute, there was some evidence tending to show that the plaintiff Wickham may have supposed that he was settling only for the direct loss by the fire in the agreement for the survey or appraisement of the damages signed by both parties, which provided that it should not "apply to or cover any question that may arise for saving boat and cargo." There were also other circumstances tending to show that the agents of the companies might have known that Wickham supposed he was settling only for the direct loss: First, in the letter of Allen, the adjuster, who, in transmitting proofs of loss to the various companies, stated that "the assured will make further claims for expenses of raising the propeller, and is now preparing the statement of such expenses to submit with his subsequent claim," and, secondly, in the memorandum of the meeting of the companies, January 18th, (Ex. hibit PP,) in which, after reading a communication from an adjuster at Detroit in relation to the salvage expenses, a notion was carried "that the request of the assured to help him out is not granted, but the companies are recommended to pay the amount of claim as set forth in the proofs of loss." These items of testimony are inconsistent with the idea that the agents of the companies did not know of the further claim, and are also pertinent upon the question whether Wickham understood that he was settling that claim. 1. But assuming that the receipts upon their face show a complete settlement of the entire claim for one-half the total amount, what was the consideration for the release of the other half? The only one that is put forward for that purpose Is that payment was made 5 days after proofs of loss were furnished, or 55 days before anything was actually due by the terms of the policy. That prepayment of part of a claim may be a good consideration for the release of the residue is not disputed; but it is subject to the qualification that nothing can be treated as a consideration that is not intended as such by the parties. Thus in Philpot v. Gruninger, 14 Wall. 570, 577, it is stated that "nothing is consideration that is not regarded as such by both parties." To constitute a valid agreement there must be a meeting of minds upon every feature and element of such agreement, of which the consideration is one. The mere presence of some incident to a contract which might, under certain circumstances, be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect, it must have been offered by one party, and accepted by the other, as one element of the contract. In Kirkpatrick v. Muirhead, 16 Pa. St. 117, it was said that “consideration, like every other part of a contract, must be the result of agreement. The parties must understand and be influenced to the particular action by something of value or convenience, and inconvenience recognized by all of them as the moving cause. That which is a mere fortuitous result, following accidentally from an arrangement, but in no degree prompting the actors to it, is not to be esteemed a legal consideration." See, also, 1 Add. Cont. 15; Ellis v. Clark, 110 Mass. 389. Now, evidence of what took place at the meeting, if admissible for no other purpose, was competent as bearing upon the question whether the prepayment was mentioned or treated as an inducement or consideration for the release of the residue of the claim. It certainly was not so stated in the defendant's plea, which set forth that the defendant "paid to said plaintiffs a valuable consideration, to-wit, the sum of $1,920.60, in full accord and satisfaction," etc., "for losses and damages by fire, at the several times in said plaintiffs' declaration set forth, • ** which valuable consideration or sum of money, so paid as aforesaid, was then and there accepted and received by said plaintiffs of and from said defendant in full payment, satisfaction, release, and discharge of the said two policies of insurance, * * * and, in consideration of said money so paid and received as aforesaid, said plaintiffs then and there released in writing the said defendant," etc. There is no mention here of the prepayment of this sum as a consideration for the release of the residue. The oral testimony upon this point was conflicting; the plaintiffs swearing that the committee stated that the companies were ready and willing to pay the cost of making repairs, and would waive any right they might have under the clause making the loss payable in 60 days from the time the proofs were furnished. There is no doubt that this right to delay payquent was a stipulation which the insurer could waive, at his option, (Insurance Co. v. Norton, 96 U. S. 234, 240;) and if, as the plaintiffs stated, the insurance companies did exercise this option, and agree to waive their right to the 60 days, the pre- | ceipts which can possibly be claimed to payment cannot be regarded as a consideration to support the alleged compromise. It is a familiar doctrine that parol evidence is competent to show a want of consideration. 1 Greenl. Ev. §§ 284, 304. The court charged the jury upon this point that the payment of the policy 55 days in advance of the time when the same would become due, without discount for interest, was by itself a sufficient consideration for waiving the plaintiffs' further claim in the policies, if it was understood as such. The question was a proper one for the jury to pass upon, the charge was sufficiently favorable to the defendant, and their conclusion, whether correct or not, cannot be the subject of review here. partake of the nature of a contract is that providing for a cancellation and surrender of the policy. There was a similar provision indorsed on the policies. These, however, were inserted in pursuance of a clause in the policy to the effect that the insurance might be terminated at any time, at the option of the company, upon giving notice to the insured; and that in such case he should be entitled to claim a ratable proportion of the premi um for the unexpired term for which the policy was to run. The court instructed the jury correctly upon this point, that, if they found that the policies were surrendered in consideration of the unearned premiums stated in the receipts, indorsed on the policies, the surrender was no de show the plaintiffs' relinquishment of all their rights under the policy, it was not conclusive, if the jury found that it was made in consideration of the unearned premiums. There was nothing in the nature of a contract on plaintiffs' part in the certificate of settlement, (Exhibit QQ;) it was a mere admission that the loss and damage by fire had been adjusted at a certain sum, and should be construed in connection with the submission of December 15th, which showed that it did not apply to any question that might arise for saving boat and cargo. The question certified should therefore be answered in the affirmative, and as this was the opinion of the presiding judge, and the case was submitted to the jury upon that theory, the judgment of the court below will be affirmed. 2. Aside from this, however, the circum-fense; and, while it had a tendency to stances attending the execution of a receipt in full of all demands may be given in evidence to show that by mistake it was made to express more than intended, and that the creditor had in fact claims that were not included. Thus in Simons v. Johnson, 3 Barn. & Adol. 175, which was an action of covenant, defendant pleaded a release, which recited that various disputes were existing between the parties, and that actions had been brought against each other which were still pending; but that it had been agreed between them that, in order to put an end thereto, the defendant should pay the plaintiff £150, and that each should release the other from all actions, causes of action, and claims brought by him, or which he had against the other, and the instrument then proceeded to release all claims, demands, and actions whatsoever. It was held that parol evidence was admissible to show that the claim upon the covenant was not intended to be included in the release, LITTLEDALE, J., saying: “There can be no doubt that the matter contemplated in this release was the actions there referred to, and parol evidence was admissible to show that the subject matter of the present action was not involved in them. Other cases to the same effect are: Lawrence v. Navigation Co., 4 Wash. C. C. 562; Payler v. Homersham, 4 Maule & S. 423; Jackson v. Stackhouse, 1 Co w. 122; Grumley v. Webb, 44 Mo. 444; Price v. Treat, 29 Neb. 536, 45 N. W. Rep. 790; Railroad Co. v. Davis, 35 Kan. 464, 11 Pac. Rep. 421. The appraisement, the letter of Allen transmitting the proofs of loss, and the memorandum of the meeting of the underwriters' agents are all corroborative of the testimony of the plaintiffs that the committee replied to Wickham, when he asked them for a contribution for the expenses of raising and saving the vessel, that the companies were not liable for such expenses, and that they had no authority whatever for considering the claim for raising and saving the steamer. If this be true, it requires no argument to show that the claim for salvage service was not intended to be included in the receipts. There is no doubt that, when a receipt also embodies a contract, the rule applicable to contracts obtains, and parol evidence is inadmissible to vary or contra. dict it. But the only clause in these re Mr. Justice RPADLEY and Mr. Justice GRAY did not hear the argument nor take part in the decision of this case. (141 U. S. 648) THOMPSON V. BAKER et al. (November 16, 1891.) FRAUDULENT CONVEYANCES RIGHTS OF CREDIT ORS-ATTACHMENT. The owner of land conveyed it to his nephew for the purpose of defrauding creditors, and it was afterwards conveyed to one I. without consideration. I. executed a mortgage on the land to secure a loan, which was afterwards foreclosed, and the land was purchased by the mortgagee. Shortly after the original owner had conveyed the land, a creditor, whom the conveyance was intended to defraud, attached it, and in the action judgment was rendered for the amount of the debt and foreclosure of the attachment lien, which was had, and the land was purchased by the attaching creditor. This was after the conveyance to I., and the execution of the mortgage by him. Held that, as the laws of Texas declare conveyances in fraud of creditors absolutely void, there was nothing to affect the creditor's right to attach the land as he did, and title thereto vests in him under the attachment sale, for I.'s mortgagee, having purchased the land pendente lite, took it subject to the attachment lien. In error to the circuit court of the United States for the northern district of Texas. Affirmed. The facts of the case fully appear in the following statement by Mr. Justice HAR LAN: This is an action of trespass to try the 689. *649 brought. 66 title to a tract of land in Clay county, Tex., | commenced after Schuler's action was containing 1,729 acres, more or less. The dispute is between Thompson, who was the plaintiff below, and Schuler. Each party claims under Baker. Schuler pleaded not guilty, alleging, by way of reconvention, that he was the owner in fee and entitled to a judgment for the land, with damages and writ of restitution. The court tried the case, making a special finding of facts in accordance with the agreement of the parties, upon which judgment was entered in favor of Schuler. The history of the title, as shown by that finding, is as follows: Baker, August 30, 1884, conveyed the land, with general warranty, to one Ledbetter, the deed reciting a consideration of $8,225, evidenced by three promissory notes, each for onethird of that sum, and due, respectively, on the 1st days of September, 1885, 1886, and 1887. The grantee was a nephew of Baker, and a single man, living on the land with his uncle, and having there 40 head of cattle. After the deed, he continued to live with Baker, who had 300 head of cattle on the land. But their value is not stated; nor does it appear to what extent Baker was indebted, or what other property, if any, he had in the state subject to execution. The deed of August 30, 1884, was made to defraud the creditors of the grantor, particularly Schuler, who, at its date, held the note of Baker and others for $10,000. It was never delivered to Ledbetter, but was put on record by Baker, September 29, 1884. A few days before that deed was recorded, namely, on the 24th day of September, 1884, Schuler instituted suit on his demand of $10,000 against Baker and others in the district court of Clay county, Tex., and on the same day sued out an attachment, which was levied upon the land in controversy as the property of Baker. That suit, on Schuler's application, was removed into the circuit court of the United States for the northern district of Texas, in which court the transcript was filed December 4, 1884. On the next day, December 5, 1884, Schuler sued out in that court another writ of attachment, which was levied the same day on the land in dispute as the property of Baker. On May 9, 1885, Ledbetter made and delivered to J. N. Israel a general warranty deed, conveying the land to the latter, and reciting a consideration of $10,000 cash. On the same day Baker executed a release of his vendor's lien. The deed and release were both acknowledged on the day last named. Two days later, May 11, 1885. Baker executed to Israel a quitclaim deed for the land. No consideration was paid by Israel to Baker or to Ledbetter for their respective conveyances, which were recorded May 14, 1885. On the 1st day of August, 1885, Thompson loaned to Israel the sum of $5,000, for which the latter executed his note secured by mortgage on this land. Default in performing the stipulations of the mortgage having occurred, Thompson brought suit against Israel in the court below to foreclose it. The finding does not show when that suit was instituted, but it was In Schuler's suit, the court below rendered judgment, January 12, 1886, against Baker and others, for the debt sued on, with foreclosure of the attachment lien. The judgment recites that "the attachment lien, as it existed December 5, 1884, is foreclosed;" the writ issued in the state court not being mentioned in it. Upon the above judgment an order of sale was issued. The sale took place June 1, 1886, Schuler becoming the purchaser, and receiving a deed from the marshal, which was recorded June 4, 1886. Subsequently, June 16, 1886, Thompson obtained a decree in his suit, under which the land was sold on the 3d of August, 1886. He became the purchaser at the sale, receiving from the marshal a deed, which was recorded in September, 1886. When Thompson made the loan to and took the mortgage from Israel, he had no knowledge of the fact that the latter paid nothing for the conveyances from Baker and Ledbetter, nor of the fraudulent intent with which Baker conveyed to Ledbetter, nor actual notice of any defect or infirmity in the title. The writs of attachment, in the action of Schuler v. Baker, the court found,“ were properly sued out, issued, and levied, and by proper officcers, and the lien on the land in controversy, under the writ of December 5, 1884, was duly and regularly foreclosed. It was also found that "the foreclosure proceedings under the mortgage from Israel to Thompson were regular." Neither Thompson, Ledbetter, nor israel were parties to Schuler's suit, nor was Schuler a party to Thompson's suit. Such is the case made by the finding of facts. The statute of Texas relating to frauds and fraudulent conveyances declares that "every gift, conveyance, assignment, or transfer of or charge upon any estate, real or personal, every suit commenced, or decree, judgment, or execution suffered or obtained, and every bond or other writing given, with intent to delay, hinder, or defraud creditors, purchasers, or other persons, of or from what they are or may be lawfully entitled to, shall, as to such creditors, purchasers, or other persons, their representatives or assigns, be void. This article shall not affect the title of a purchaser for valuable consideration unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor:" also that "every gift, conveyance, assignment, transfer, or charge made by a debtor, which is not upon a consideration deemed valuable in law, shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this state sufficient to pay his existing debts; but such gift, conveyance, assignment, transfer, or charge shall not on that account merely be void as to subsequent creditors, and, though it be decreed to be void as to a prior creditor, because voluntary, it shall not for that cause be decreed to be void as to subsequent creditors or purchasers." 1 Sayles' Civil St ⚫654 Tex. pp. 807, 809, arts. 2465, 2466; Rev. St. Tex. 1879. p. 363. D. A. McKnight, for plaintiff in error. Sawnie Robertson, for defendants in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. The transaction by which Baker attempted to put the title to the land in his nephew was a mere sham. The deed was never delivered to the pretended grantee, and, having been made with the intent to defraud the creditors of the grantor, particularly Schuler, was void, under the statute, as to such creditors. It did not, therefore, as between Schuler, Baker, and Ledbetter, stand in the way of Schuler causing, as he did, an attachment to be levied upon the land as the property of his fraudulent debtor. Equally ineffectual, as against Schuler, was the conveyance by Ledbetter, and the quitclaim deed of Baker to Israel. No consideration of any kind passed from Israel to either of the fraudulent grantors, and those deeds were void as to prior creditors. So that, on the 1st day of August, 1885, when Thompson took a mortgage from Israel, the land was under a lien created by Schuler's attachment of December 5, 1884, which was levied upon it as the property of Baker. The deed from Baker to Ledbetter, and the conveyance from Ledbetter to Israel, being void as to Schuler, he had the right to proceed to a decree in his suit without noticing the apparent title which Ledbetter had of record at the time the attachment of December 5th was levied, or the title which the latter attempted, after the levy of that attachment and in fraud of Baker's creditors, to convey to Israel. It results that the rights of Thompson under the mortgage from Israel, and under the decree, sale, and purchase in the suit brought by him, having been acquired while the land was under a valid levy by Schuler's attachment of December 5, 1884, as the property of Baker, were subject to whatever rights were acquired by Schuler, as purchaser, under the decree in his suit. Baker being a party to that suit, his interest in the land levied upon by Schuler's attachment could not be conveyed by him so as to defeat the final decree in that suit. And no greater rights could be acquired by a purchaser from Baker after the attachment than Baker himself had. In Tuttle v. Turner, 28 Tex. 759, 773, which involved the title of one who purchased land after a levy thereon of an attachment, the court said: "If he purchased after the appellees acquired a lien on the lands by levy of the attachment, his rights are subordinate to theirs. The attachment lien being a prior incumbrance, he takes subject to its prior satisfaction. Being a pendente lite purchaser, he is affected with notice of the rights of the appellees," etc. So, in Hancock v. Hender. son, 45 Tex. 479, 484, where the contest was between the holder of an attachment lien upon land and a person who purchased from the grantees of the defendant in the attachment, who, it was alleged, had conveyed the land to such grantees with the fraudulent intent to hinder his creditors, such purchaser having no actual notice of the issuing of the attachment or of the levy, the court said: "That a valid levy created a lien on the land attached, and, when properly returned on the writ into the court from which it issued, is notice to third parties, are propositions which it is not deemed necessary to discuss. It follows that Mrs. Louisa Hancock, [the purchaser after the levy of the attachment,] having bought the land under these circumstances, took it subject to the plaintiff's [attachment] lien." To the same effect is Paxton v. Meyer, 67 Tex. 96, 98, 2 S. W. Rep. 817. See, also. County of Warren v. Marcy, 97 U. S. 96, 105; Union Trust Co. v. Southern Inland Nav. & Imp. Co., 130 U. S. 565, 570, 9 Sup. Ct. Rep. 606; Murray v. Ballou, 1 Johus. Ch. 566, 576. For the reasons stated, we are of opinion that the title to the land was in Schuler, in virtue of his purchase at the sale in the suit brought by him, and of the marshal's deed to him. Judgment affirmed. (141 U. S. 548) ROGERS V. UNITED STATES. (November 16, 1891.) TRIAL BY DISTRICT COURT-REVIEW ON WRIT OF ERROR. Where the parties to an action in the district court on an official bond waive a jury, and the cause is tried by the court, which hears evidence and makes findings and renders judgment thereon, the circuit court, and the supreme court on proceedings in error, can only affirm the judgment without considering the merits, for that mode of trying issues of fact was unknown to the common law, and there is no statutory provision authorizing it in the district court; so that the reviewing court cannot consider the facts found as judicially determined, nor examine any questions of law thence arising. In error to the circuit court of the United States for the southern district of New York. Affirmed. Action brought in the district court by the United States against Lebbeus H. Rogers. A jury was waived, and, after a trial by the court, judgment was rendered for the plaintiff. 28 Fed. Rep. 607. The circuit court, on proceedings in error, affirmed the judgment, (32 Fed. Rep. 890,) and defendant sued out a writ of error from this court to the circuit court. George Bliss, for plaintiff in error. Gen. Taft, for the United States. Sol. Mr. Justice BLATCHFORD delivered the opinion of the court. On the 12th of March, 1885, the United States brought an action at law in the district court of the United States for the southern district of New York against Lebbeus H. Rogers, to recover $12,000, with interest and costs, the principal sum being the amount of the penalty of a bond executed by Henry W. Howgate as principal, and Rogers and another person as sureties, on the 13th of March, 1878, which bond recited that Howgate, first lieutenant of the twentieth infantry, had been "assigned to duty as a property and disbursing officer, signal service, U. S. A.," and was conditioned that Howgate should *550 | in March, 1878, said Howgate, as princi- at all times "during his holding and remaining in said office" carefully discharge the duties thereof, and faithfully expend all public money, and honestly account for the same and for all public property which should or might come into his hands "on account of signal service, U.S. army, without fraud or delay." The complaint alleged that Howgate entered upon the duties "of property and disbursing officer, signal service of the United States army;' that, while acting as such officer, he did not carefully discharge the duties of his office, and faithfully expend all public moneys, and honestly account for the same, and for all public property which came into his bands "on account of the signal service, U. S. army," without fraud or delay, in this: that on divers dates during the years 1878, 1879, and 1880, while acting as such officer, he received from the United States, on account of the signal service of the United States army. $133,255.22, which sum he did not faithfully expend, and had not accounted for. The answer of Rogers, besides denying the breaches of the bond alleged in the complaint, set up that the bond was executed, taken, and delivered without authority of law, and in violation of law. The parties filed a written stipulation, waiving the right of trial by jury, and consenting that the cause be tried by the court without a jury. It was so tried, before Judge BROWN. In April, 1887, he filed findings of fact, which stated that he had "heard the testimony of the witnesses." Those findings of fact were as follows:*"(1) That long prior to 1874 the signal corps, under the department of war, was organized, and has continued from its organization to the present time under such department. That during such time such signal corps has had property and disbursing officers. (2) That prior to 25th July, 1876, one Henry W. Howgate was a first lieutenant of the twentieth infantry of the United States army, attached to the signal corps. (3) That on the 25th July, 1876, said Howgate, by a special order, as follows: War Department, Office of the Chief Signal Officer, Washington, D. C., July 25, 1876. Special Orders, No. 115. 2. First Lieutenant H. W. Howgate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, is hereby assigned to duty as property and disbursing officer at this office, together with such other duties as may be assigned to him. 3. First Lieutenant Henry Jackson, 7th cavalry, acting signal officer and assistant, is hereby relieved from duty as property and disbursing officer at this office, and will turn over all government property and funds pertaining to this office, for which he is responsible, to First Lieutenant H. W. How. gate, 20th infantry, brevet captain U. S. A., acting signal officer and assistant, who will receive and receipt for the same. By order of the chief signal officer of the army. GARRICK MALLERY, Captain 1st Inf'y, Bvt. Lient. Col. U. S. A., Acting Signal Officer and Assistant,'-was assigned to duty as property and disbursing officer in the office of the chief signal officer, and he voluntarily accepted such assignment, and entered upon the duties thereof. (4) That | bond proved; that the court refused to * A bill of exceptions was filed in the district court, which states that the plaintiffs put in evidence the order set forth in the third finding of fact, and also the bond, which is set forth in full, and a stipulation in writing, whereby the defendant admitted that Howgate, "while acting as property and disbursing officer, signal service, U. S. army, did not carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account for the same, and for all public property which came into his hands, but did fraudulently, and with intent to defraud the plaintiffs, embezzle the sum of $133.255.22," and that he was indebted to the United States in that sum. The bill of exceptions also states that the plaintiffs put in evidence certain orders of the war department, which are set forth, and that it was admitted that Howgate was an officer of the regular army of the United States. It then sets forth that, the evidence of the plaintiffs being closed, the defendant's counsel, without offering any testimony, moved the court to direct a verdict for the defendant, on the ground that, as a matter of law, no action could be maintained by the plaintiffs upon the |