Buelin v. Smith

• Decision Date: 31 March 1927
• Docket Number: (No. 3364.)
• Parties: BUELIN et al. v. SMITH.
• Court: Texas Court of Appeals

294 S.W. 317

BUELIN et al. v. SMITH.

(No. 3364.)

Court of Civil Appeals of Texas. Texarkana.

March 31, 1927.

Rehearing Denied April 28, 1927.

Appeal from District Court, Delta County; J. M. Melson, Judge.

Suit by M. W. Smith, trustee in bankruptcy of J. N. Buelin, against L. J. Buelin, O. M. Buelin, and another. Judgment for plaintiff, and defendants named appeal. Reformed and affirmed.

By an instrument purporting to be a general warranty deed dated July 30, 1921, J. N. Buelin and his wife conveyed 67 acres of land they owned, constituting a part of their homestead, to their sons, L. J. Buelin and O. M. Buelin. According to recitals in the instrument the consideration for the conveyance was $1,500 in cash paid by said L. J. and O. M. Buelin, their ten promissory vendor lien notes for $470, interest and attorney's fees, each payable to the order of said J. N. Buelin, and their assumption of the payment of $4,500 which J. N. Buelin owed on the land to W. J. McDonald. November 20, 1922, J. N. Buelin canceled and surrendered said ten promissory notes (no part of which had been paid) to said L. J. and O. M. Buelin to pay indebtedness he owed them, it was alleged. November 28, 1923, J. N. Buelin was adjudged a bankrupt on a petition filed by him November 27, 1923. This suit by appellee as the trustee of the estate of said J. N. Buelin, bankrupt, was commenced October 16, 1924. It was against said J. N., L. J. and O. M. Buelin, and was to cancel the transfer of said ten notes made by said J. N. Buelin to L. J. and O. M. Buelin, for possession of said notes, and for judgment on same for the amount thereof against said L. J. and O. M. Buelin, and foreclosing the vendor's lien retained on the land to secure the payment of the notes. The ground upon which appellee sought such relief was that the transfer of the notes was void as against said J. N. Buelin's creditors, because, it was alleged, it was without any consideration, and because, it was alleged further, it was made at a time when said J. N. Buelin was insolvent, and with the intent on his part to hinder, delay, and defraud his then existing creditors. The Buelins specially denied that there was no consideration for the cancellation and surrender of their ten notes to them. With reference to this they alleged that said notes were canceled and returned to them to satisfy indebtedness of J. N. Buelin to them in the sum of $5,061.82. They alleged further that the creditors of J. N. Buelin had no right to complain of the conveyance of the land to them July 30, 1921, as stated above, nor of the cancellation and surrender of said notes to them November 20, 1922, because, they alleged, the land at said times was a part of the homestead of J. N. Buelin and therefore "could not be the subject of a fraudulent sale or transaction." It appeared from the allegations in their answer that the theory upon which said L. J. and O. M. Buelin claimed the land continued to be a part of J. N. Buelin's homestead on said November 20, 1922, was that the sale he made to them July 30, 1921, was a conditional one because of the fact that he retained a vendor's lien on the land to secure the payment of the ten notes. It was alleged that the effect of the retention of such a lien was to leave "the superior and legal title" to the land in J. N. Buelin, and that the land therefore continued to be a part of his homestead until he canceled and surrendered the notes as stated. Said L. J. and O. M. Buelin alleged further that after said ten notes were canceled and surrendered to them as stated, their answer as garnishees in a suit brought by the First National Bank of Enloe against said J. N. Buelin, that they were not indebted to said J. N. Buelin and did not have possession of any property belonging to him, was not in any way controverted, and that on January 5, 1925, the garnishment proceedings against them were dismissed at said bank's cost. The judgment of dismissal, they alleged, operated as "an adjudication of the fact (quoting) that these defendants were not indebted to J. N. Buelin and did not have any of his effects or property in their hands."

The court having found (as recited in the judgment) that the reasonable cash market value of the ten notes on November 20, 1922, when they were canceled by J. N. Buelin and surrendered to L. J. and O. M. Buelin, was $4,052.82, and the jury having found that the indebtedness of said J. N. Buelin to said L. J. and O. M. Buelin at that time was only $2,960.82, judgment was rendered in appellee's favor against said L. J. and O. M. Buelin for the difference, to wit, $1,090, together with interest thereon from said November 20, 1922, at the rate specified in the notes, and foreclosing the lien retained on the land to secure the payment of said ten notes, but subject to the lien to secure the $4,500 indebtedness to W. J. McDonald above referred to. It was provided in the judgment that the proceeds of a sale under the foreclosure should be applied to the payment in full of the $2,960.82 J. M. Buelin owed L. J. and O. M. Buelin before any of same should be applied to the payment of the $1,090 and interest adjudged to appellee, and that the part, if any, remaining of said proceeds should be paid to said L. J. and O. M. Buelin. The appeal is by said L. J. and O. M. Buelin.

McMahan, Dohoney & Dial, of Greenville, O. C. Mulkey, of Commerce, and A. P. Dohoney, of Greenville, for appellants.

Joel H. Berry, of Cooper, and L. L. James, of Greenville, for appellee.

WILLSON, C. J. (after stating the facts as above).

We think there is no merit in the contention urged by appellants that the trial court erred when he refused to instruct the jury to return a verdict in their favor.

One of the grounds of their motion to so instruct was that it conclusively appeared that the 67 acres of land was a part of the homestead of J. N. Buelin and wife at the date of their deed of July 30, 1921, conveying same to appellants, and at the time the ten promissory notes made by appellants were canceled and surrendered. Of course if it so appeared, it was...