This is an action of trespass to try title involving certain real estate in the city of Dallas. The appellee, J.T. Elliott, as plaintiff, and the appellant, J.S. Armstrong, as defendant, claim under one H.C. Clark as a common source, though the apparent title to the property was never in Clark.
On the 4th day of September, 1893, the property stood in the name of J.B. Watkins. On that day Watkins executed a deed conveying the property to W.E. Wilkin, which deed was recorded on October 25, 1893. On December 1, 1893, W.E. Wilkin conveyed the property to J.S. Armstrong, the appellant, by deed recorded December 5, 1893.
Plaintiff's claim was as follows: 1. A judgment in favor of the North Texas National Bank versus H.C. Clark, of date May 18, 1893, for $138.64 and costs, duly abstracted, indexed, and recorded in Dallas County prior to December 1, 1893. 2. Transfers of said judgment from the plaintiff therein to the Southwestern Manufacturing Company, and from the latter to the plaintiff, J.T. Elliott. 3. An execution upon this judgment issued May 15, 1897, with the sheriff's return thereon showing a levy upon the land in controversy as the property of H.C. Clark. 4. A deed by the constable to, the plaintiff conveying the said property as that of H.C. Clark, in consideration of the plaintiff's bid for the land at the sale had by virtue of the aforesaid judgment, execution, and levy.
A second branch of the plaintiff's title is as follows: 1. A judgment in favor of the plaintiff versus H.C. Clark, dated October 11, 1897, for the principal sum of $14,830.30. 2. An execution with a return thereon showing a levy upon the land in controversy by the sheriff of Dallas County as the property of H.C. Clark, and also a deed from Clark by the sheriff *Page 43 to the plaintiff, in consideration of $100 bid at the sheriff's sale by virtue of the above mentioned execution on the first Tuesday in January, 1892.
The plaintiff alleged that H.C. Clark, the defendant in these executions, had purchased the property from J.B. Watkins and had caused the title to be conveyed by Watkins to W.E. Wilkin, who held the property by a secret trust for the benefit of H.C. Clark, an insolvent, indebted at the time to the plaintiffs in the judgments above set out; that on December 1, 1893, Wilkin, at the procurement of Clark, conveyed the property to the appellant, who took it with full knowledge of the trust existing thereon in favor of Clark, and subject to the lien of one of the judgments under which the appellee claims, at that date duly abstracted, indexed, and recorded in Dallas County.
The defendant Armstrong, in addition to the plea of not guilty, urged the defense of three years' limitation. He proved himself in the continuous possession of the property since the date of the deed from Wilkin, and by regular chain of transfers connected himself with the sovereignty of the soil.
The plaintiff replied to the plea of limitation, alleging that the deed from Watkins to Wilkin under which the defendant claims was made for the benefit of H.C. Clark, and for the purpose of fraudulently concealing his interest in the property, because of his embarrassed condition, and averring that the appellee had not discovered the interest of Clark until just before the institution of this suit.
On February 26, 1898, the cause was submitted to the jury on special issues, and upon their findings judgment was entered in favor of the plaintiff.
In accordance with the findings of the jury upon the special issues submitted, we further find the following conclusions of fact:
H.C. Clark purchased the land in controversy from J.B. Watkins, and at the time of the purchase the title was placed and was afterwards kept in the name of W.E. Wilkin, for the purpose of concealing the property from the creditors of Clark and of placing it beyond their reach. This was done at the instance and request of H.C. Clark, with the purpose of hindering, delaying, and defeating his creditors in the collection of their debts.
On November 9, 1893, J.S. Armstrong, the defendant, and W.E. Wilkin entered into a written contract whereby Wilkin agreed to convey to Armstrong the property in controversy, free of all incumbrance, save an incumbrance of $12,500, in consideration whereof Armstrong agreed to pay certain money, to execute certain notes, and to convey certain realty to Wilkin. At the date of this contract H.C. Clark was the real owner of the land in controversy. So was he at the time and just before the property was conveyed to J.S. Armstrong by W.E. Wilkin by deed of date December 1, 1893.
At the time of the contract of purchase between Armstrong and *Page 44 Wilkin, and at the date of the deed to Wilkin, J.S. Armstrong knew that H.C. Clark was the real owner of the land in controversy. So, at the time that he accepted the deed from Wilkin, Armstrong had knowledge of facts or circumstances reasonably calculated and sufficient to put a person of ordinary prudence upon inquiry as to whether H.C. Clark was the real owner of the land in controversy; and if he had pursued this inquiry with ordinary diligence, he would have ascertained the real facts of the transaction, if he did not know them.
Pending the negotiations for the sale of the land to Armstrong, and at the time that Armstrong accepted the deed from Wilkin, H.C. Clark was insolvent and unable to pay his debts, and has ever since been and was at the time of this trial unable to pay his debts; and pending these negotiations, and at the time he accepted the deed from Wilkin, Armstrong knew that H.C. Clark was then insolvent and unable to pay his debts.
The fair reasonable cash market value of the property at the time of its purchase by Armstrong was $40,000, and the fair reasonable cash market value of certain realty put in by Armstrong as part of the purchase price and in part payment of the land in suit was $10,000 at the time of the purchase in question.
At the time of the conveyance by Wilkin to Armstrong, J.T. Elliott, the plaintiff, did not know that the property really belonged to H.C. Clark, nor did he find out anything about Clark's interest or title in it until February, 1897.
At the time of the conveyance by Wilkin to Armstrong, Clark intended with the proceeds of the sale to Armstrong to pay his debts, and these proceeds were paid by Clark on his debts, or mainly thereon. With these proceeds he paid a part of his debts in full. Others he compromised for less than their face value, and at the time of the sale he intended to dispose of the proceeds as he afterwards did.
Conclusions of Law. — 1. After the trial the defendant Armstrong presented to the court a motion to enter judgment in his favor, the precise terms of which we deem it proper to set out, as follows: "Now at this time comes J.S. Armstrong, defendant in the above styled and numbered cause, and moves the court to enter judgment herein in favor of the defendant for the land in controversy herein upon the findings of the jury to the special issues herein submitted to the jury by the court."
Certain assignments of error styled the first, second, and third additional assignments of error, as also the twenty-second, twenty-third, and twenty-eighth assignments of error, urged in appellant's brief (pages 36-46), complain alike of the action of the court in refusing to enter judgment for the defendant on the motion which we have hereinabove set out. The ground of complaint in effect urged in each of these assignments is that the undisputed proof shows that H.C. Clark, at the date of the contract of sale between Wilkin and Armstrong, and at the date of *Page 45 the execution of the deed by the former to the latter, had no such interest in the land as was subject to execution or as was subject to the judgment lien.
It will be noted that the court below was requested to enter a judgment upon the findings of the jury, and in this court the assignments referred to urge error on the part of the trial court in refusing to grant this motion, not because the findings would not support the judgment, but because the evidence would not support the finding of ownership in Clark. Hence it is manifest that the defendant is seeking to avail himself of an objection here which was not even called to the attention of the court in the motion the overruling of which is made the subject of the assignments of error now considered. The court below was not asked in this motion to set aside these findings because they were contrary to the evidence, but its attention was invited to the sufficiency of the findings themselves as a basis for the judgment. Under these circumstances, we feel constrained to decline to consider the sufficiency of the evidence to support the finding of the jury to the effect that Clark was the real owner of the land at the date of its purchase from Wilkin.
2. The first, second, fourth, sixth, seventh, tenth, sixteenth, seventeenth, eighteenth, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-ninth assignments of error complain of the action of the court in different aspects, but with reference to one issue, viz., the knowledge on the part of Armstrong at the time of his purchase of the property of the fraudulent intent which actuated Clark in the transaction.
It will be noted that there are two branches to the title asserted by the appellee, viz., that arising out of the execution sale had by virtue of the judgment duly abstracted, indexed, and recorded at the time of the purchase by Armstrong in December, 1893, and that arising out of the execution sale under the judgment obtained October 11, 1897. The second branch of the title alone involves the question of the participation by Armstrong in the fraudulent intent which may have actuated Clark in the disposition of this property. Under the first branch of the title, as it rests upon a judgment lien against the property of Clark, it follows that, if it be true that Clark at the time of the conveyance to Armstrong was the real owner of the property, and that Armstrong knew this fact, the plaintiff should prevail, without reference to the question whether Clark was moved by a fraudulent purpose in the transaction, or whether Armstrong participated in that purpose. In other words, it is quite manifest that, under the findings of the jury, the plaintiff must prevail under the first branch of the title asserted by him, unless defeated by the statute of three years' limitation. Hence, in view of our conclusion hereinafter stated upon the first branch, we regard as immaterial any error which may have been committed in connection with the second branch and presented in the assignments last above mentioned; and these assignments are overruled. *Page 46
3. The thirtieth and thirteenth assignments of error complain that the court erred in failing and refusing to charge the jury in respect to the law of the case, and in failing to grant the special charges 1, 2, 3, 4, 5, 6, and 7. These charges are not set out in the appellant's brief. We can not assume that they were material.
The amended article 1331 of the Revised Statutes prescribes that, when a case is submitted on special issues, "the failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal or writ of error, unless its submission has been requested in writing by the party complaining of the judgment." It was incumbent upon the appellant to request the submission of proper special issues, if there was an omission by the court in this respect; and it is further incumbent upon him to state in his brief what these issues were, and the form in which they were presented, so that this court might be enabled to pass upon their materiality. This the appellant has failed to do. These assignments are hence overruled.
4. The fifth, eighth, ninth, and eleventh assignments of error are presented together, and complain of the action of the court in failing to submit to the jury the issue of three years' limitation, and in failing to enter judgment in favor of the defendant on the findings of the jury, on the ground that the undisputed evidence showed that the plaintiff's cause of action was barred by the aforesaid statute of limitations. We are unable to sustain these assignments. Under the terms of the article above quoted, we are of opinion that the defendant should have requested a submission of this issue, if deemed by him to be material. Railway v. Gay, 86 Tex. 609. We are not prepared to hold that the findings of the jury would not support the judgment rendered. As indicated in the outset, the motion to enter judgment did not raise the sufficiency of the evidence to support the findings.
Our conclusion is that, without reference to the second branch of the plaintiff's title, the findings of the jury justified the judgment under the first. We fail to find merit in the appellant's case as here presented, and we feel constrained to order an affirmance of the judgment.
Affirmed.
ON MOTION FOR REHEARING.
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