The holder of a contract or other obligation may not lawfully maintain suit thereon against a surety or guarantor of such contract or obligation without at the same time, or previously, suing the maker or principal obligor in such contract, unless the petition in such case alleges some one or more of the statutory reasons for not joining the maker or principal obligor in such suit; and a failure to make such allegations renders the petition subject to a general demurrer. Rev. Stats., Arts. 6336, 6337, 1842 and 1843; Mullaly v. Ivory, 30 S.W. 259; Elliott v. Wiggins, 16 Tex. 597; Fisher v. Phelps, 21 Tex. 555; Kampmann v. Williams, 70 Tex. 571; Yale v. Ward, 30 Tex. 221; Elliott v. Bank, 105 Tex. 547; Moore v. Belt, 206 S.W. 225. Austin F. Anderson and McGown, McGown Anderson, for appellee.

" (Emphasis theirs.) Also Texas cases: Muenster v. Tremont Nat. Bank, 92 Tex. 422, 49 S.W. 362; Woldert v. Durst, 15 Tex. Civ. App. 81, 38 S.W. 215; Moore v. Belt, Tex.Civ. App., 206 S.W. 225; Wills v. Tyer, Tex.Civ.App., 186 S.W. 862; Girard Fire Marine Ins. Co. v. Koenigsberg, Tex.Civ.App., 65 S.W.2d 783; Stafford v. Lawyers Lloyds of Texas, Tex.Civ. App., 175 S.W.2d 461. Likewise Federal cases: Phelps v. Dawson, 8 Cir., 97 F.2d 339, 116 A.L.R. 1343; Chisholm v. House, 10 Cir., 183 F.2d 698; Atchison v. Gulf Refining Co., 5 Cir., 174 F.2d 476; Prichard v. Nelson, 4 Cir., 137 F.2d 312; Central Trust Co. v. Manly, 5 Cir., 100 F.2d 992.

Since the appellant, Mrs. Ashbrook, did not execute the note which forms the basis of this suit, she was not liable thereon, and no judgment could be rendered against her personally as the maker thereof. Moore v. Belt (Tex. Civ. App.) 206 S.W. 225; Adams v. First National Bank (Tex. Civ. App.) 178 S.W. 993. Her liability, if any rests upon other grounds. Under the record and the rule of law which gave the testator's creditors a lien upon all of his property, she held the property as trustee for the unpaid creditors, and if plaintiff was entitled to any recovery at all, it was against the estate in rem and against her in that capacity, to the extent of the property received by her necessary to pay the debts.

Ordinarily the statute of fraudulent conveyances, even if the conveyance is voluntary, does not apply to those who become creditors subsequently to the conveyance claimed to be fraudulent. Moore v. Belt (Tex.Civ.App.) 206 S.W. 225; Bergson v. Dunham (Tex.Civ.App.) 40 S.W. 17; Raymond v. Cook, 31 Tex. 373; Beard v. Blum, 64 Tex. 59; Cole v. Terrell, 71 Tex. 549, 9 S.W. 668; Dosche v. Nette, 81 Tex. 265, 16 S.W. 1013. In order for such to be the case, it is necessary that the intent exist at the time to shield the property from debts thereafter to be incurred.

No one can be charged on a negotiable instrument, unless his name appears on it or as a party to it in some relation. Shore v. Carl (Tex.Civ.App.) 284, S.W. 289, not yet [officially] published; Adams v. First Nat. Bank (Tex.Civ.App.) 178 S.W. 993; Moore v. Belt (Tex.Civ.App.) 206 S.W. 225. I, therefore, hold that, the bill of exchange not having been indorsed in writing, it did not have the attribute of negotiability as to Bailey, and, he not having indorsed it, he had the right to present his defense of fraud on the part of Collins in the procuring of same.

Unless they actually signed it, they are not necessary parties to the suit, either under the common law or the Texas statutes. Adams v. First National Bank of Waco (Tex.Civ.App.) 178 S.W. 9393; Moore v. Belt (Tex.Civ.App.) 206 S.W. 225; R.S. 1925, art. 6133. The liability of the stockholders, if any, is not on the notes, but is incidental, and arises from the fact that they are stockholders in the association and liable as partners, and the original opinion so holds; but this is foreign to the question of whether the joint-stock association, as a legal entity, is a necessary party to this suit.

It is also true that, in order for appellants to question the validity of the parol conveyance from Bozeman to his daughter of September 9, 1922, under the provisions of article 3967 of the Revised Civil Statutes, it was incumbent upon them to plead and prove that they were prior creditors of Bozeman, and, appellants not having pleaded that they had any claim against Bozeman prior to the date of said parol conveyance, they failed to bring themselves within the purview of said article of our statutes. Moore et al. v. Belt (Tex.Civ.App.) 206 S.W. 225; Allen v. Crutcher (Tex.Civ.App.) 216 S.W. 236. We overrule all of these assignments of error.

The court having found by presumption of law, on our part, that the debt was not in existence at the time of the conveyance herein attacked, we overrule the assignment. Articles 3966, 3967, Vernon's Sayles' Ann.Civ.St. 1914, and Vernon's Ann.Civ.St.Supp. 1918 and 1922, and cases cited; Allen v. Crutcher (Tex.Civ.App.) 216 S.W. 236; Broussard v. Lawson, 58 Tex. Civ. App. 415, 124 S.W. 712; Bank v. Walker (Tex.Civ.App.) 187 S.W. 724; Diltz v. Dodson (Tex.Civ.App.) 207 S.W. 360; David v. State Bank (Tex.Civ.App.) 238 S.W. 979; Fenton v. Miller (Tex.Civ.App.) 218 S.W. 14; Hugo v. Hirsch (Tex.Civ.App.) 63 S.W. 163; 27 Corp.Jur. p. 562, § 267; Lemm v. Miller (Tex.Civ.App.) 245 S.W. 90; Lewis v. Simon, 72 Tex. 474, 10 S.W. 554; Lynn v. LeGierse, 48 Tex. 140; McCrory v. Lutz, 64 S.W. 780; Martin v. Jourdanton (Tex.Civ.App.) 185 S.W. 583; Moore v. Belt (Tex.Civ.App.) 206 S.W. 225; McLane v. Bank (Tex.Civ.App.) 68 S.W. 66; Torrey v. Cameron, 73 Tex. 590, 11 S.W. 840; Vodrie v. Tynan (Tex.Civ.App.) 57 S.W. 680; 27 Corp.Jur. p. 641; 27 Corp.Jur. 555, § 258. Reported in full in the Southwestern Reporter; reported as a memorandum decision, without opinion in 94 Tex. 650.