13 S.W. 370 (Tex. 1890), Freybe v. Tiernan

Citation:13 S.W. 370, 76 Tex. 286
Opinion Judge:GAINES, J.
Party Name:FREYBE v. TIERNAN, Sheriff, et al.
Attorney:[76 Tex. 287] Hume & Kleberg, for appellant. [76 Tex. 288] George Mason and Howard Finley, for appellees.
Case Date:February 25, 1890
Court:Supreme Court of Texas
 
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Page 370

13 S.W. 370 (Tex. 1890)

76 Tex. 286

FREYBE

v.

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.

[76 Tex. 287] Hume & Kleberg, for appellant.

[76 Tex. 288] 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. [76 Tex. 289] 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...

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