Bank of Garrison v. Malley

• Decision Date: 16 November 1910
• Citation: 131 S.W. 1064
• Parties: BANK OF GARRISON v. MALLEY et al.
• Court: Texas Supreme Court

131 S.W. 1064

BANK OF GARRISON v. MALLEY et al.

Supreme Court of Texas.

November 16, 1910.

Certified Question from Court of Civil Appeals, First District.

Action by the Bank of Garrison against F. W. Malley and others. On certified questions from the Court of Civil Appeals. On appeal to it from a judgment for defendant. Questions answered as stated.

King & King, for appellant. E. P. Hudson and June C. Harris, for appellees.

BROWN, J.

On certified question from the First district. We copy the statement of the honorable Court of Civil Appeals as follows:

"In this case the Bank of Garrison, a partnership doing business under that name brought suit in the district court against F. W. Malley to recover the amount due upon four certain promissory notes of $358.20 each. The suit was instituted on February 27, 1908. F. H. Malley was also made defendant upon the allegation that a certain tract or parcel of land, the title of which was in his name, was held by him in trust for his codefendant, F. W. Malley, who was alleged to be the real and beneficial owner, and that an attachment was sued out for the seizure thereof. Simultaneously with the filing of the suit an attachment was sued out by plaintiffs, which was on February 28, 1908, regularly levied by the sheriff upon said land, and the writ duly returned. There was a prayer in the petition for foreclosure of the attachment lien upon whatever property might be seized under the attachment writ. Both defendants were alleged in the petition to be nonresidents of the state, but both appeared and filed separate answers. F. H. Malley filed general demurrer and general denial. F. W. Malley also filed general demurrer and general denial, and, in addition, pleaded his adjudication as a bankrupt by the United States District Court for the Eastern District of Texas on the 25th day of April, 1908, and that he had been by order of said court duly and regularly discharged as such bankrupt on October 5, 1908. It was alleged that the debt here sued for was duly scheduled by the said bankrupt. It was further alleged that at the time of the levy of said writ of attachment the said F. W. Malley was wholly and totally insolvent, and defendant prays that he be allowed to go hence with his costs. To this answer as to the bankruptcy proceedings plaintiff, by supplemental petition, interposed a general demurrer and special exceptions, alleging, in substance, that it appeared from the answer that plaintiff's suit was instituted and the attachment levied before the adjudication of bankruptcy. As we understand the record, the parties agreed to submit to the court as a question preliminary to the trial of the issues as to the title to the land the validity of the attachment levied upon the land within four months of the adjudication of bankruptcy and the discharge of the bankrupt as a defense to the action. This submission was made upon the following agreement:

"`Agreed Statement of Facts on Hearing of Plea on Discharge in Bankruptcy of Defendant F. W. Malley. It is agreed: That defendant F. W. Malley, at the time this suit was filed, owed the amount described in the petition to the Bank of Garrison. That the suit was filed on the 28th day of February, 1908, by the Bank of Garrison against the defendants F. W. Malley and F. H. Malley to recover as against the defendant F. W. Malley the amount described to be due in the petition, and that contemporaneous with the filing of the suit a writ of attachment was duly sued out, and on the 28th day of February, 1908, was levied by the sheriff of Nacogdoches county, Texas, on the tract of land described in the officer's return as the property of F. W. Malley. Land described as follows: "All that certain tract or parcel of land situated in Nacogdoches county, Texas, about one mile N. E. from the town of Garrison, and being a part of the Ransom Olfin 640 survey, and bounded as follows: Beginning on the H. E. & W. T. R. R. right of way, where the S. W. line of said Ransom Olfin survey crosses said right of way, 580 vrs. N. 40 W. on the S. or S. W. corner of said survey; thence N. 40 W. 317 vrs. a corner, from which a _____ brs. _____ vrs. and a _____ brs. _____ vrs.; thence N. 50 E. 1188.8 vrs. the Bowen E. or N. E. corner, a Pine and Hickory as witness trees; thence S. 40 E. 660 vrs. stake on Railroad right of way; thence Southwestwardly with said R. R. right of way to the place of beginning, containing 103 acres more or less, being the same land described in a deed from G. E. Oxsheer to Fred H. Malley of date October 24, 1903, of record in Book 58, page 246, of the Deed Records of Nacogdoches county, Texas, reference to which is here made for a more complete description of same." That the writ with the return of the officer was returned and filed in the district court of Nacogdoches county, Tex., on the 29th day of February, 1908, showing its execution by levy upon the land therein described, and the writ was on the 29th day of February, 1908, filed for record, and upon said date duly recorded in volume 1, p. 13, of the Attachment Records of said county, which was properly indexed, as required by law, by J. A. Spears, county clerk of ...