Hart v. Rust

Moore, Associate Justice. This suit was brought by the appellee for the recovery from the appellants of forty acres of land, a part of the Martin Allen league, which is admitted by both parties to have formerly belonged to A. C. Horton, and under whom they both claim to derive title. A number of questions of much interest have been discussed by counsel, the proper determination of some of which is by no means free from difficulty. It is not necessary, however, in the view we take of the case, for us to pass upon but few of them; and these are not believed to be of difficult — 571 — solution. The point upon which appellants chiefly rely in support of their claim, to the land, and to- defeat that of appellee, is, that the instrument of writing bearing date December 27, 1861, whereby said Horton and his wife is alleged by appellee to have conveyed the land in controversy, and other property, to his sou Robert J. Horton, reserving a life estate to themselves, and the survivor of them, and also limiting tire estate over, in the event of said Robert’s death without issue, is inoperative, and will not serve as a link to connect appellee with said A. 0. Horton’s title. 1st. Because said instrument never took effect as a deed, for want of delivery, in the lifetime of said A. 0. Horton. 2d. Said instrument was testamentary in its character, and was intended by the purported grantors to have effect as a will, and not as a deed. 3d. Said instrument was not made upon any valuable consideration, but was altogether voluntary, and therefore fraudulent and void, at least as to existing creditors of the grantors, at the date of its execution, or when it took effect, and as to those claiming under such creditors, or in their right. The proof shows that the parties interested in the business to which the instrument of writing in question relates, wore all present when it was executed, and were also present when the personal property was divided, and the shares allotted to the donees were set apart and pointed out to them as their property; and after said instrument had been signed by the grantors, and attested by the subscribing witnesses, it was handed to the grantee by the grantor, who said, as he handed it to lflm, “Here is the deed to your property.” That this was a full and complete delivery of it to the grantee, admits of no question. The fact that the deed was subsequently returned to the grantor, to be preserved and taken care of by Mm for the grantee during Ms minority and contemplated absence in the army, neither negatives or disproves its previous delivery, or annuls or destroys its effect to pass the title of the property embraced in it, as — 572 — between the parties to it. (4 Kent, 455, 456, and notes; Hillebrant v. Brewer, 6 Tex., 49.) We can perceive nothing in the instrument, or the circumstances connected with its execution, to warrant the inference that it was intended by the grantors to have effect as a will, and not as a deed. B is drawn in the form and was delivered to the grantee as a deed; was couched in appropriate language to indicate its purpose and have effect as a deed. Where this is the case, the court will not, by construction, give an instrument a different effect from that ordinarily imputed to it. This instrument was evidently intended to serve a like purpose, and to have like effect, as the conveyance to Mrs. Dennis for the property given to her. B certainly cannot be held that this was a will and not a deed, and that no right or title to the property therein conveyed, vested in her until after her father’s death. The will, made by Horton on the same day that these instruments were executed, shows that he understood perfectly well the difference between them and the will, and his intent and purpose in making them. (Ferguson v. Ferguson, 27 Tex., 339, and case cited.) B is unnecessary for us to consider whether an advancement or a voluntary settlement of property upon a child, by a parent, who does not retain ample lheans in his hands to discharge all Ms debts, is fraudulent and void as to existing creditors or not. For, if it is admitted that the deed is, in such case, invalid as to creditors and bona fide purchasers from the donor, it is unquestionably valid and effectual between the parties to it and then privies. If, therefore, the deed from Horton to his son should be regarded as fraudulent in law, for want of a valuable consideration, or, if it was admitted to be fraudulent in fact, though such an assumption is clearly repelled by the entire evidence in this record, it is unquestionably valid and binding upon Horton and his heirs, and prima facie so at least on his legal representatives. Therefore, as the appellee had acquired, previous to bringing Ms suit, the life estate reserved by the deed to Mrs. Horton, — 573 — as the survivor of her husband, as well as all the interest vested by it in Robert Horton, appellants have no right to complain of the judgment, unless they are creditors or purchasers of the grantors, without actual or constructive notice of the deed, or have acquired a right or interest in the land through or under such creditor or purchaser. It is not pretended that Horton was ever indebted to appellants, or either of them. The only title which, it is claimed, they have to the land, was acquired by its purchase from Dennis, one of the executors of said Horton’s will, at a sale alleged to have been made by him, under and by authority of a judgment of the District Court of Wharton county, against said Dennis and Mrs. Eliza Horton, as executor and executrix of said A. C. Horton, deceased, whereby said executor and executrix were required by the court, on or before a named day, to sell sufficient of the personal property belonging to said estate, if in their hands, to satisfy said judgment, and in default of such personal property, then to sell real estate. There are, obviously, at least two fatal defects to the title which appellants claim to have acquired under this sale: Eii-st. While it is now a well-established rule in this State, (however unfortunately or disastrously it may often operate as well to the creditor as to the debtor,) that when property has been conveyed in fraud of creditors, it may be levied upon and sold by the sheriff as the property of the fraudulent grantor, without a proceeding to invalidate or set aside the deed having been previously had, it has never been held, however, that the executor or administrator of the fraudulent grantor has similar authority. Or, if he should inventory and sell the property as a part of the estate, although his application for its sale should be for the payment of debts as to which the conveyance might he fraudulent, can it he claimed that the purchaser at such sale would get title ? The executor being the representative of his testator, is, prima facie, bound by Ms deed, and cannot, ordinarily, impugn or — 574 — question its validity. Before such property can be sold by the executor or administrator, the conveyances must he set aside by suit against the grantee, brought by the creditor as to whom it is fraudulent, or by the executor or administrator, if, in any case, a suit of this kind may he maintained by him to annul the conveyance and subject the property to administration for the payment of such creditor. (Cobb v. Norwood, 11 Tex., 556; Avery v. Avery, 12 Tex., 54; Connell v. Chandler, 13 Tex., 5; Hunt v. Butterworth, 21 Tex., 138.) Second. If the land was subject to sale under the order of the court, for satisfaction of the judgment, the sale of it by Dennis alone was unauthorized. By his will, Horton committed the administration of his estate to Mrs. Horton and Dennis, jointly. Both of them qualified, and were acting in settling the estate under the will. By the judgment, they were required, as executrix and executor, to make the sale. It seems to he well settled, when authority is given, by will or otherwise, to executors or trustees to sell land, and where there are one or more acting, all of them must join in the sale, or the execution of the power is invalid. (Crosby v. Houston, 1 Tex., 203; Halbert v. Grant, 4 Monr., 580; Taylor v. Galloway, 1 How., (Ohio,) 232.) In maintenance of the validity of a sale in such case by one of the executors alone, we are cited to the case of Johnson v. Bowden, 37 Tex., 621, and might also have been referred to our ruling in the second action between the Game parties, where the previous decision is in effect reaffirmed. (43 Tex., 670.) But an examination will show that the point decided by the court was altogether different from that here presented. In these cases, the court held that when authority is given by will to executors to sell land, and two persons are nominated in the will as executors, but one of them dies, or fails to qualify or accept the trust, the power survives, and maybe exercised by the party "who qualifies and acts. It by no means follows, however, that when both have qualified, and are acting, the power entrusted to them jointly may he exercised by one of them to the exclusion of the other, with — 575 — out Ms consent, and, as it seems in tMs case, against Ms wish. The judgment is affirmed. Affirmed.