Lewis v. Simon

Gaines, Associate Justice.—This suit was brought by appellee Angelina Simon, joined by her husband, to recover of appellant a certain parcel of land described in her petition. On the 16th day of February, 1885, the land in controversy was the property of Solomon Simon, who on that day conveyed it to appellant Angelina, his wife. The consideration expressed is ten dollars “paid by Angelina Simon, and the further consideration of the love and affection ” borne by the grantor to her. The deed was acknowledged and filed for record on the day of its date, and was duly recorded. The defendant claimed title by virtue of a sheriff’s sale and deed to him made under an execution issued from the County Court of Galveston County upon a judgment there rendered in favor of Ullman, Lewis & Go. against Solomon Simon. The judgment established the lien of an attachment which had been formerly issued in the suit and levied upon the land in controversy as the property of Solomon Simon. The debt upon which the judgment was rendered was an open account contracted on the 29th day of July, 1885, more than five months after the conveyance from Simon to his wife. The appellant defended upon the ground that the deed from Simon to his wife was made with intent to defraud the subsequent as well as the existing creditors of the grantor, and was therefore void as to Ullman, Lewis & Co., although the debt upon which they obtained judgment was not created until after the deed was made. In order to maintain his defense the appellant introduced the testimony of but one witness. Presenting this testimony in the light most favorable to defendant it would have authorized the jury to find that Simon was [474] indebted at the time of the conveyance to his wife in an amount in excess of the value of his assets; that after this time he continued his regular-business and also engaged in the purchase of mules or other speculations upon an extensive scale for a man of his means, and that within ten months after the deed to his wife he failed, being indebted to a large-amount. The witness knew but little of the details of Simon’s business, and the conclusions thus stated are the limits of the inferences which the. jury could have legitimately drawn from his evidence. The appellee, the plaintiff below, having introduced her deed, and defendant having introduced evidence of the attachment proceedings, judgment, execution, and sheriff’s deed under which - he claimed, and such being the parol evidence adduced to establish the fraud, the court instructed the jury to find for the plaintiff. This instruction is assigned as error. Article 2466 of the Revised Statutes is as follows: “ Every gift, conveyance, assignment, transfer, or charge made by a debtor, which is not upon 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 subject to execution 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.” Conceding therefore that the deed from Simon to his wife was a voluntary conveyance and that it was void as to existing creditors, this does not render it void as to subsequent creditors. The only facts remaining from which fraud in the conveyance as to the latter class of creditors could be deduced are that soon thereafter Simon began operating upon a larger scale and shortly became insolvent. The use of the word “merely” in the statute quoted indicates that the Legislature contemplated that cases might arise in which a voluntary conveyance should be held void even as to subsequent creditors; but we are clearly of opinion that the facts here in evidence do not make such a case. .If a grantor should voluntarily convey his property to his wife or children and should cause the deed to be withheld from the record, intending notwithstanding his conveyance to obtain credit upon faith of still being the owner of the property, and should he accordingly obtain, such credit, a strong case would be presented for holding the conveyance fraudulent although it might be placed upon the record before the creditor secured a lien upon the property by judgment or otherwise. But such is not the case before us. Here the deed was recorded upon the day of its execution and notice was given to the world that the grantor had parted with his title to the property. It has been held that where [475] a voluntary conveyance is made in contemplation of the grantor’s entering upon hazardous speculations and with a view to protect it from subsequent creditors in the event his ventures should result disastrously it is-fraudulent as against such subsequent creditors. Wait’s Fraud. Conv., secs. 100, 101, and cases cited. But the author cited also says: “ As a general rule a subsequent creditor who acquired his claim with knowledge or notice of the conveyance sought to be annulled can not attack it as fraudulent.” Id., sec. 106; Baker v. Gilman, 52 Barb., 39. This rule has been recognized in former decisions in this court. Lehmberg v. Biberstein, 51 Texas, 457; De Garca v. Galvan, 55 Texas, 53; Van Bibber v. Mathis, 52 Texas, 406. The creditor knowing that the grantor has voluntarily parted with his-property, we fail to see the device or deceit by which he can claim to have been defrauded. We conclude there was no evidence to warrant a verdict for the defendant and that the court did not err in instructing the jury to find for the plaintiff. The decision of the foregoing question practically disposes of the case. If the answers of the witness Brackenridge, which were excluded, would have materially strengthened the defendant’s case it would be a question to be determined whether the court erred or not in excluding them. But we are of opinion that if they had been admitted it would still have been the duty of the court to charge the jury to find for the plaintiff. The error, therefore, in excluding the testimony, if error it were, is harmless. The plaintiff Angelina Simon having shown title in herself, and defendant not having made a case to defeat her title, it was not error to refuse the charges requested. It is unnecessary to determine whether they were correct or not as applied to a proper case. The proposition that the deed from Simon to his wife placed the title in the community can not be maintained. Such a construction would be equivalent to holding that it passed the title from the community to the community, or in other words that it passed nothing. The consideration in the deed from Wilkinson to Simon and the bid at the sheriff’s sale show clearly that the ten dollars expressed in the deed in question was merely nominal and that the conveyance was purely voluntary. By it the land clearly became the separate property of the wife as the grantor evidently intended. The evidence adduced admitted of no other proper judgment except-that rendered, and it will therefore be affirmed. Affirmed. Opinion January 22, 1889.