Blum v. Light

• Decision Date: 16 June 1891
• Citation: 16 S.W. 1090
• Parties: BLUM <I>et al.</I> v. LIGHT <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 1090

BLUM et al. v.LIGHT et al.

Supreme Court of Texas.

June 16, 1891.

Commissioners' decision. Appeal from district court, Lipscomb county; FRANK WILLIS, Judge.

J. M. Browning, for appellants.B. M. Baker, for appellees.

GARRETT, J.

This suit was a trial of the right of property.Appellants, L. and H. Blum, were judgment creditors of Leonard Light, the husband of the appelleeHannah M. Light, and caused an execution to be levied upon the property in controversy, consisting of cattle and horses, by the sheriff of Lipscomb county.Mrs. Light made claim in accordance with the statute.The issues were tried before a jury, and on December 8, 1888, there was a verdict and judgment for the claimant.The judgment in favor of the Blums was rendered by the district court of Galveston county, November 26, 1886, against L. B. French, M. G. Swan, and John B. Light as principals, and L.Light as surety, for the sum of $1,282.82.Executions were issued to Galveston, Mason, and Lipscomb counties, all of which were returned by the several sheriffs, "No property found."On January 12, 1888, execution was issued to Lipscomb county, and was levied on the property in controversy in this suit, — about 300 head of cattle and 10 horses, as shown by the return.On March 10, 1888, Hannah M. Light presented to the sheriff her affidavit of claim to said property and her bond for the trial of the right thereto.These were filed in the district court of Lipscomb county, March 17, 1888.Issues were submitted, and the burden of proof lay with the claimant.She alleged, in substance, that up to and prior to the 6th day of May, 1887, she and her husband owned and occupied a homestead in the town of Mason, Mason county, Tex., which was exempt from execution; that, desiring to remove from there, and having no property except said homestead, the said Hannah refused to part with her homestead rights, or sign a deed to same, unless the proceeds thereof were given to her to be her own separate property and to be preserved by her for the purpose of investment in another homestead for herself and three children; that on said date appellees sold said homestead to one Gottlich Brandenberger, taking in payment for same the cattle and three of the horses involved in this suit, and that the same were transferred to her by said Brandenberger, to be her own separate property, which was previously agreed to by her husband; that she signed the deed to the homestead solely upon that condition; that two of the horses levied upon were owned by her prior to her marriage with Leonard Light, and that five of the horses were bought by her with money advanced to her by her brother-in-law L. P. Badger, which money she afterwards repaid; that no part of the property involved in this suit belonged to Leonard Light, but that the same was her sole and separate property, that she has not yet purchased another homestead, and that the value of the homestead sold by her and her husband to said Brandenberger still remains in the cattle and horses received for same and involved in this suit.Appellants submitted their issues: (1) A general denial.(2) That the property was then and at the date of the sheriff's levy under plaintiffs' execution the common property of claimant and her husband, Leonard Light, (one of the defendants in plaintiffs' execution,) and subject to the payment of his debts; that said Hannah had no separate right in said property that, if any transfer was ever in fact made to her for same, that it was made without any consideration deemed valuable in law; that such transfer was made to her for the purpose of covering up the property, and thereby to hinder, delay, and defraud these plaintiffs and other creditors of said Leonard in the recovery of their said debts against him, and for that reason the pretended transfer was void in law as against plaintiffs, who were creditors of said Leonard prior to the said transfer.It was admitted that the former homestead of appellees in Mason county was community property.Claimant and her husband were married in 1881.On May 6, 1887, appellees sold their homestead to Gottlich Brandenberger.The consideration, as testified to by Brandenberger, was $3,100 in cattle and a vendor's lien thereon amounting to $600.The recital in the deed is "in consideration of the sum of thirty-one hundred ($3,100) dollars, paid by Gottlich Brandenberger to Mrs. Hannah M. Light, in three hundred and thirty-six head of cattle, the same being paid the said Hannah M. Light in consideration for her convey in (sic) the premises hereinafter mentioned, the same being her homestead; and the said three hundred and thirty-six head of cattle conveyed and delivered to Mrs. Hannah M. Light to be and remain her sole and separate property."A bill of sale was executed by Brandenberger to Mrs. Hannah M. Light for the cattle, dated the same day, reciting considerations, etc, in these terms: "For and in consideration of thirty-one hundred dollars, paid by Mrs. Hannah M. Light, of the county and state aforesaid, the same being paid by conveyance of her homestead in the town of Mason, Mason county, Texas, to me, have this day and do by these presents convey and deliver to Mrs. Hannah M. Light, as her sole and separate property, the following described stock of cattle," etc.From the evidence of Mrs. Light, her husband, and Evander Light it appears that Mrs. Light positively refused to sign the deed conveying the homestead unless the cattle and the three horses were given to her as her separate property.Light was in debt, and knew that if he sold his homestead for the cattle they could be taken for his debts under execution; and testified that he was not hard to persuade to give his consent to his wife's demands.After the cattle and horses were received, the claimant and her husband removed with them to Lipscomb county, arriving there in July, 1887.Mrs. Light stated that she would not have signed the deed to the homestead but for the agreement that the proceeds were to be her separate property; that, at the time of the trial, she and her husband lived in a dug-out on school land in Lipscomb county, and have not purchased another home.Before the sale was concluded the claimant consulted with her brother-in-law Evander Light, who was an attorney at law, "as to how she could become the owner of the proceeds of a sale of the homestead, so that she could reinvest it in another home;" and he advised her that "if she would make her consent to the sale conditional that the proceeds should be given to her as her separate property, the property received would be her own."Brandenberger testified that he did not know to whom he made the bill of sale for the cattle.It was in evidence that two of the ten horses in controversy were the property of Mrs. Light before her marriage with the defendant in execution; three of them were included in the bill of sale with the cattle; and the remaining five were bought for the claimant by her brother-in-law L. P. Badger as they were about to start for Lipscomb county, and needed them to drive the cattle with.They were agreed to be settled for out of the proceeds of the cattle, and were so settled for.

The first question that arises grows out of the appellants' first proposition under the fourth assignment of error, relating to the charge of the court, which is that "personal property received in payment for the homestead of an insolvent debtor is subject to the payment of his debts; and the fact that the property so received was so transferred to the wife to be her separate property, upon the sole consideration of obtaining her consent to the sale of the homestead, does not take such property out of the reach of the husband's creditors."This involves two propositions, to the first of which—that the proceeds of the voluntary sale of a homestead, which are not in themselves exempt, are liable to execution—we assent.Although there are some...