Freybe v. Tiernan

• Decision Date: 25 February 1890
• Citation: 13 S.W. 370
• Parties: FREYBE <I>v.</I> TIERNAN, Sheriff, <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 370

FREYBEv.

TIERNAN, Sheriff, et al.

Supreme Court of Texas.

February 25, 1890.

Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Action by Olympia Freybe against Patrick Tiernan and others. Judgment was rendered for defendants, and plaintiff appealed.

Hume & Kleberg, for appellant. George Mason and Howard Finley, for appellees.

GAINES, J.

This suit was brought by appellant to recover of appellee Tiernan, as sheriff of Galveston county, and the sureties on his official bond, damages for the seizure of a stock of goods in which she claimed an interest. The goods were levied upon by virtue of a writ of attachment in favor in E. R. Singleton against Charles A. Freybe, the son of appellant. Tiernan answered, among other things, that the plaintiff in the attachment suit had given him an indemnity bond, and prayed that he and his sureties on that bond be made parties defendant. Singleton and his sureties appeared, and answered; and upon the trial before a jury there was a verdict and judgment for the defendants. The facts which gave rise to the suit are as follows: Charles A. Freybe, in 1877, being then about 19 years old, and having had the disabilities of minority removed, borrowed of his mother, the appellant, the sum of $2,500, and with it purchased half interest in a business then conducted by Singleton. He subsequently bought all of Singleton's interest in the business, and gave him his note for the purchase money. At the time of the loan from his mother he executed no written evidence of debt; but at a later date, and after some partial payments had been made, executed to her his promissory note for $2,200, for the balance then due. On the 23d day of December, 1887, being unable to meet his obligations, and being indebted to Ullman, Lewis & Co. and to Adoue & Lobit as well as his mother, he conveyed to them jointly all the stock of merchandise and certain other personal property in full satisfaction of their claims. It was after this sale that the writ of attachment was levied. The property was sold by the sheriff under the order of the court; and the proceeds were divided between the plaintiff in attachment, Ullman, Lewis & Co., and Adoue & Lobit, from which it would seem that Singleton did not contest the title of these firms to their respective interests in the property. Singleton and his sureties, in their answer to the present suit, alleged that the debt for which an interest in the goods was transferred to Mrs. Freybe was fictitious, and that, therefore, the sale to her was fraudulent. The testimony of Mrs. Freybe, who was examined on her own behalf, and that of her son, who testified for the defendants, leaves no doubt that the money was lent by her to her son, as she claims, and that there remained due upon that particular transaction, at the time of the sale, the sum of $2,195, the amount recited in the bill of sale as the consideration of the conveyance to her. But during the cross-examination of Mrs. Freybe it was disclosed that, during the year 1875, her father-in-law in Germany gave her $1,800 or $2,000 in German money, — the German dollar being worth 70 cents of our money. The testimony does not make it clear whether this was given to her alone, or to her and to her children. But in the charge of the court it was disregarded, and seems to have been treated as a gift to her for her own use. It was further disclosed by her testimony that, in the year 1884, she collected in Germany, from her deceased father-in-law's estate, $1,800 or $2,000 in German money. In one place she testified that this money was inherited by her children, and in another that it belonged to her and her children as heirs of her deceased father-in-law. She further testified that she was in moderate circumstances; that while she had considerable property she was largely in debt; and that she had spent her son's portion of the money in his maintenance and education.

Under this state of the case, the court first charged the jury, in effect, that if, at the time of the sale of the property in controversy, Mrs. Freybe was indebted to her son on account of the money received by her in Germany in 1884, and that she failed to give him credit therefor on her claim against him for the borrowed money, they should find for defendants; and then proceeded to give the following further instruction: "In determining whether Mrs. Olympia Freybe was indebted to her son for moneys for which he should have had credit on her claim against him, you cannot take into consideration any expenses she may have incurred for his maintenance support, or education during his minority. Parents cannot use the money or estate of their children to aid in their raising without the probate court authorizes them by special order, and there is no evidence that any such order was made." In giving the instruction, the court evidently acted upon the theory that the only method by which a mother can establish a debt against her child for expenses incurred on account of his maintenance and education is by means of the procedure in the county court provided by our statutes in relation to guardians and wards. In this view of the law, we do not concur. There are cases in which equity recognizes the claim of the mother against her child, for reimbursement for expenditures...