Kaliski v. Gray

FLY, O. J. The pleadings in this record are very voluminous, the case having been tried upon the *932 fourth amended -original petition and fifth amended answers by some of the parties, as well as various supplemental petitions and answers, together with a cross-action by Don A. Bliss, one of the' defendants, copies of pleadings covering 102 pages of a transcript of 166 pages. The suit was instituted by Belle Kaliski, who will be herein called plaintiff, against 0. 'J. Gray, Don A. Bliss, D. J. Sullivan & Co., a partnership composed of D. Sullivan, D. J. Sullivan, and W. C. Sullivan, herein identified as defendants, and is an action of trespass to try title to “all of Block 16, of the Kahn and Gray Subdivision of 230 acres of land, lying and situated in Bexar County, Texas, and out of the I. Perez Survey, No. 93, as shown by the map or plat of said subdivision, recorded in the records of maps and plats of said county, Volume 5, page 227, to which reference is here made, said land containing thirty-three acres.” The cause was submitted to a jury on special issues, and on the responses thereto judgment was rendered that as to Gray and the Sullivans plaintiff should recover nothing and pay all costs, and that Don A. Bliss recover of plaintiff on his cross-action the land herein described. Plaintiff claimed the land through a sheriff’s deed made by virtue of an order of sale issued in the ease of O. J. Gray v. Elliff, out of the Seventy-Third district court of Bexar County; said deed being dated April 6, 1915. The judgment foreclosed the vendor’s lien on the land. The legal title was in Gray at the time of the foreclosure and sale. Gray was indebted to plaintiff, and had placed the Elliff notes with her as' collateral, and the foreclosure and sale was made in order to place the title in plaintiff and defeat other creditors. Gray pleaded that the sheriff’s deed was made to plaintiff merely as security for the debt he owed her, and1 that the deed was obtained by him and plaintiff in order to protect the land from seizure' by other creditors. He testified to the facts alleged by him. In the face of admissions in pleadings and evidence, the jury answered that the agreement between Gray and plaintiff was not made by him for the purpose of hindering, delaying, or defrauding creditors. When plaintiff proved that Gray held the title to the land when he sold to Elliff, and that she purchased the land- at a foreclosure sale issued by Gray in a suit instituted by him against Elliff to foreclose on purchase-money notes, she developed her case, and the burden devolved on Gray to show that the sheriff had made a deed to plaintiff, which was in truth a mortgage to secure plaintiff in the debt she held against Gray. Let it be admitted that Gray permitted or induced plaintiff to purchase the land at sheriff’s sale merely as security for debt, still accompanying this purpose and design was another and more potent motive of concealing property from his creditors. After pleading that the deed was intended only to secure plaintiff and not to pass title to her, Gray alleged: “This agreement was because plaintiff well knew that there were a number of deficiency judgments against this defendant, the abstract of which were duly recorded in the judgment abstract records of Bexar County, Texas, and that it might be claimed by said judgment creditors that their judgment liens had been attached to the said land and that they should be taken in payment of the debt.” That may be taken, if desired, as an indirect way of charging that plaintiff was a party to the scheme to prevent other creditors from collecting their debts, but proof of that fact would not avail Gray anything, because the law would not lend itself in any way to assist him in setting aside the fraudulent conveyance to which he was a party. He swore that the deed was taken in Mrs. Kaliski’s name as security in order to prevent creditors from subjecting the land to payment of their debts. When asked why he did not take the deed from the sheriff in his own name, he said: “On account of having those deficiency judgments against me. If I had, my creditors would have come in and would have taken whatever equity .1 had in it.” When asked his purpose in having plaintiff to take title to the land, his answer was: “My object and purpose was to try to save my equity in it and at the same time to secure her.” It is well settled that a contract based on several considerations, one of which is unlawful, either under the common law or by statutory provision, is null and void. Wicks v. Comves, 110 Tex. 532, 221 S. W. 938; Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053. The following passage is quoted and approved in Eastham v. Roundtree, 56 Tex. 110, which is applicable to the facts of this case: “As a general rule, a contract or agreement cannot be made the subject of an •action if it be impeachable on the ground of dishonesty, or as being opposed to public policy — if it be either contra bonos mores, ór forbidden by the law.” Transfers made with intent to delay, hinder, or defraud creditors are denounced by statute. Elser v. Graber, 69 Tex. 222, 6 S. W. 560. The claim of Judge Bliss is dependent on the success or failure of Gray to establish his claim to the land. Because the verdict of the jury was contrary to the undisputed facts, the judgment is reversed, and the cause remanded.