Folts v. Ferguson

HENRY, Associate Justice. —Appellees instituted this suit to recover undivided interests in two tracts of land lying in Hardeman County. Their petition charged that while they were minors they with the owners of the other interest in the land signed a power of attorney authorizing one William F. Ferguson to execute a deed of conveyance of the land, and that acting under the power Ferguson sold and conveyed the land to parties under whom the defendants claim title to it. [303] The petition prayed for a decree canceling the power of attorney and deed made under it, and quieting plaintiffs in their possession of the land. The defendants, among other defenses, pleaded the.following: “ That heretofore, to-wit, the 21st day of December, 1878, in a certain suit then pending in the District Court of Travis County, in the State of Texas, Do. 5070, styled The State of Texas v. William F. Ferguson, Henry Woodruff Bendy, Elijah A. Ferguson, and Elizabeth A. Ferguson, the plaintiffs in said suit, the State of Texas recovered a judgment against the defendants in said suit, William F, Ferguson. Henry Wood-ruff Bendy, Elijah A. Ferguson, and Elizabeth Ferguson, in the sum of $2442.46, together with her costs in that behalf expended, and that execution issued therefor. That said William F. Ferguson, Elijah A. Ferguson, and P. L. Ferguson and the plaintiffs in this suit, making six in all, were brothers, and the said Elizabeth A. Ferguson was their mother, and a widow at the time the said judgment was rendered. That the said judgment, as soon as it was rendered, became and was the debt of the said Elizabeth A. Ferguson, and was a charge upon all of her property subject to execution for the payment of debts, and all of her said property could by execution issued on the judgment he sold for the payment thereof. That afterward, to-wit, on the 17th February, 1879, a certified copy of the said judgment was filed in the clerk’s office of the County Court of Shackelford County, Texas, to which county the county of Haskell, which was then unorganized and in which the lands in controversy in this suit are situated, was attached for judicial purposes, and on, to-wit, the 19th day of February, 1879, was duly recorded in the office of the county clerk of the County Court of said Shackelford County, in record book A, pages 629 and 630, book of mortgages, and thereby became a lien on the land sued for -in this case to the extent of the interest owned by the said Elizabeth A. Ferguson in said land. That at the date of said judgment and the record of a certified copy thereof as aforesaid the title to all of said lands, so far as any interest claimed by the plaintiffs in this case is concerned, was in said Elizabeth A. Ferguson, who held a deed of gift therefor, making it her separate property; and neither the State of Texas, its officers, agents, or attorneys had any notice, either actual or constructive, of any pretended claim to said land, or any part thereof, by the plaintiffs in this suit or any of them. That afterward, to-wit, on the 2d day of December, 1879, within one year from the date of said judgment, execution was issued thereon to Travis County, Texas, as required by law, which execution was on, to-wit, the 4th day of December, 1879, returned by the sheriff of said Travis County “not executed, no property found ” in that county. That afterward, to-wit, on the 4th of December, 1879, within one year from the date of said judgment, another execution was issued on said judgment to Jasper County, Texas, where all the defendants in execution then resided. [304] “That afterward, to-wit, on the 5th day of January, 1880, the said Elizabeth A. Ferguson, while the said judgment and the lien thereof upon the lands in controversy in this suit was in full force and said judgment unpaid and unsatisfied, made, executed, and delivered to her children P. L. Ferguson, G-. R. Ferguson, L. T. Ferguson, Austin H. Ferguson, Elizabeth L. Ferguson, wife if said Elijah A., and Clara E. Ferguson, wife of the said William F. Ferguson (these last two husbands were parties to said judgment), a deed of gift, upon no consideration except love and affection, conveying to them the lands in controversy in this suit; that at about the same time the said Elizabeth A. Ferguson made and executed to same grantees deeds of gift, without any consideration save love and affection, conveying many other tracts of land, viz., one tract of 1700 acres in Hardin County, one league in Tyler County, one tract of about 3100 acres in Hamilton County, and all other land and property of every kind owned by her except her homestead. That at the time the said deeds were made the said Mrs. Ferguson was largely in debt to various persons besides the judgment aforesaid, and that after making said deeds of gift was wholly insolvent. That the said deeds of gift were all fraudulent, and were made to hinder and delay her creditors, particularly the State of Texas, the owner of said judgment, and were therefore void. That all of said lands and property conveyed by the deeds aforesaid, and particularly the lands involved in this suit, being still subject to the payment of said judgment, * * * the parties to the same, including the said Elizabeth A. Ferguson, made, executed, and delivered to said William Ferguson the said power of attorney to enable him to convey the lands in controversy, to satisfy and pay off said judgment, that they might enjoy the remainder of the lands and property free from liens or liability to be sold for the satisfaction of said judgment. That in pursuance of said power of attorney the said William F. Ferguson, as their agent and attorney of the said Elizabeth A. Ferguson and grantees in said deed of gift, including plaintiffs in this suit, for and on their behalf executed and delivered to said Folts & Donnan the deed of conveyance of date 5th of May, 1880, conveying the land in controversy for the consideration of $100 cash and the balance due on the judgment, amounting to $1684.03, and then and there agreeing with Folts & Donnan that the title of said land should pass to them as perfectly as if the same had been sold under execution issued upon said judgment. That on account of said sale and conveyance to them said Folts & Donnan paid off and satisfied the balance due on said judgment as aforesaid, and caused the same to be satisfied of record, and the last execution issued on said judgment was returned without levy, and no further execution has been issued on said judgment, and all of the remainder of said lands and property conveyed by said deeds of gift were by the payment and satisfaction of said judgment set free from all liability to be sold in satisfaction of said judgment, and said plaintiffs were benefited and placed in condition [305] to enjoy the remainder of said lands and property conveyed by said deeds of gift from all hindrance on account of said judgment; and thus the said Folts & Donnan and their assignee, the defendant C. E. Beaty, became subrogated to all the rights of. the State of Texas to the same extent as if the same land had been sold under execution issued on said judgment and purchased by them at said sale.” The court sustained plaintiffs’ exceptions to this defense, and after hearing the evidence rendered judgment in favor of plaintiffs according to their prayer. The facts alleged in the answer are sufficient to show that at the dates of the conveyance of the land in controversy by their mother to plaintiffs and the deed by virtue of the power of attorney to Folts & Donnan, the judgment in favor of the State was a subsisting lien upon it. As the land was sold for the express purpose of providing for the discharge of the judgment lien, it follows, as the result of repeated decisions of this court, that even if plaintiffs are not bound by the deed to Folts & Donnan on account of their minority, they yet can not annul that deed and recover back the land without restoring the money that went to discharge the judgment lien, with interest. Howard v. North, 5 Texas, 290; Giddings v. Steele, 28 Texas, 748; French v. Grenet, 57 Texas, 273; Northcraft v. Oliver, 74 Texas, 162. We think the court erred in sustaining exceptions to so much of the answer as set up the judgment lien and the right of the defendants to be subrogated to the rights and remedies of the State under its judgment. The defendants offered record evidence to prove that the judgment in favor of the State was a subsisting lien on the land at the date of its conveyance to them, which was excluded. We can see no objection to the evidence, except that after an exception, was sustained to the pleading there remained no issue for it to apply to. Upon another trial it should be admitted. For the error noticed, the judgment must be reversed and the cause remanded. • As the other grounds of error now insisted upon may not occur upon another trial, we deem it unnecessary to rule upon them now. Reversed and remanded. Delivered May 13, 1890.