Central Nat. Bank v. Barclay

• Decision Date: 16 May 1923
• Docket Number: (No. 6604.)
• Citation: 254 S.W. 140
• Parties: CENTRAL NAT. BANK OF WACO v. BARCLAY et al.
• Court: Texas Court of Appeals

254 S.W. 140

CENTRAL NAT. BANK OF WACO v. BARCLAY et al.

(No. 6604.)

Court of Civil Appeals of Texas. Austin.

May 16, 1923.

Rehearing Denied June 13, 1923.

Error from District Court, McLennan County; H. M. Richey, Judge.

Trespass to try title by M. K. Barclay and another against the Central National Bank of Waco and others. Judgment for plaintiffs, and defendant named brings error. Affirmed.

G. W. Barcus, of Waco, for plaintiff in error.

S. H. Clayton, of Waco, for defendants in error.

Statement.

BLAIR, J.

This is an appeal, perfected by a writ of error, by the Central National Bank of Waco, one of the defendants in the court below, from an adverse judgment rendered in favor of Mrs. M. K. Barclay, joined pro forma by her husband, W. A. Barclay, plaintiffs in the court below, in a suit in trespass to try title, to remove cloud and to permanently enjoin the Central National Bank of Waco, Crate Dalton, and Bob Buchanan, the latter as sheriff of McLennan county, Tex., from selling four certain lots and parcels of land, in the city of Waco, which had been levied upon by the said sheriff under and by virtue of an execution issued out of a case in which the said Central National Bank had obtained judgment against W. A. Barclay, which judgment plaintiff in error had caused to be abstracted and placed of record in the abstract of judgment records, in said McLennan county; plaintiff in error claiming a judgment lien upon said property as the property of W. A. Barclay.

The defendant in error, Mrs. M. K. Barclay, claimed to own the said four lots levied on, in her own separate right, by reason of a conveyance to her by her husband, W. A. Barclay, of date November 25, 1914; hence her suit in trespass to try title, and in the alternative to remove cloud, if the abstract of judgment reflected any cloud upon said lots; and for injunction permanently enjoining the sale under the execution based upon such judgment; also pleading the 4 and 5 year statute of limitation against the claim of plaintiff in error.

The plaintiff in error bank and Crate Dalton, defendants below, filed answers denying that the property was the separate property of Mrs. M. K. Barclay, but alleged it to be either the separate property of W. A. Barclay, or the community property of the said W. A. Barclay, and his wife, Mrs. M. K. Barclay, and as such was subject to the judgment lien; and further that the instrument of conveyance was on its face a mortgage, and insufficient to pass title to the said Mrs. M. K. Barclay; and further that, if the instrument be construed to be a deed, which they denied, it was executed for the purpose of defrauding his creditors, especially the plaintiffs in error, since their debt was in existence at the time. There are other pleadings by both parties, but we do not deem any of them necessary to a decision in this case.

The case was tried before the court, a jury being waived, and the court rendered judgment for Mrs. M. K. Barclay, plaintiff below; vesting title to the said property in her, also removing cloud caused by the judgment lien and the execution based thereon, and permanently enjoining the defendants below from selling the property, and quieting title thereto in Mrs. M. K. Barclay.

There was no request filed for findings of fact and conclusions of law by either party, and none were made by the trial judge.

Findings of Fact.

The proof showed: That W. A. Barclay was 72 years old, and his wife, Mrs. M. K. Barclay was 70 years old, at the time of the trial of this case. That they had been married 50 years. That at the time of their marriage neither had any property. That Mrs. M. K. Barclay, on January 8, 1894, and prior thereto, acquired title to some 2,800 acres of land in Falls county, Tex., commonly known as Barclay's ranch, by purchase, gift and inheritance in her own separate right. That thereafter at various intervals she, joined by her husband, W. A. Barclay, mortgaged this land until all but 200 acres was covered by mortgages, aggregating in renewal mortgages, in 1912, 1913, and 1914, to $95,000, practically all of which W. A. Barclay borrowed from her and used it in various enterprises in which Mrs. Barclay had no interest — such as $35,000 in an oil mill, $31,500 in a land deal at Bay City, $10,000 in a mining deal in Mexico, and other sums until his total debt to Mrs. Barclay, in November, 1914, was $105,000 borrowed money, for which her land was pledged. During all these years, Mrs. Barclay collected the rents from the lands in Falls county, paid the taxes and the interest on the money, for which her land was pledged, which amounted to about $35,000 or $40,000 during the period of the last seven years. That W. A. Barclay had paid her back, in all about $36,000, in cash, lands, and notes. That some time in September, October, or November, 1918, W. A. Barclay entered into a contract to trade his Matagorda county land for a jewelry store, at San Antonio. The trade for some reason fell through, but the San Antonio party placed on record the contract of sale, which caused trouble about the title in a later sale of the same property by W. A. Barclay to A. R. Roberts, of Waco. To clear this title, he agreed to pay Crate Dalton and one Lemond $750; which services they performed. Dalton testified that this was on November 14, 1914; Barclay testified that it was in December, 1914, or January, 1915. Two notes for $375 each were made to Dalton by Barclay, on the 8th day of April, 1915, in settlement of this claim. They were transferred by Dalton, one to plaintiff in error bank, with recourse on Dalton, and the other to Lemond, without recourse on Dalton. These notes are the basis of the judgment lien sought to be enforced in this case.

On November 25, 1914, W. A. Barclay conveyed the lots in question, along with other real estate, to Mrs. M. K. Barclay, by a general cash warranty deed, save and except a recitation in the consideration, which plaintiff in error contends constitutes it a mortgage or deed of trust on its face. By this conveyance, the land in controversy, as well as other lands, were conveyed by W. A. Barclay to his wife, M. K. Barclay, in consideration of the assumption by her of the payment of these notes against her land, which notes were in fact the debt of W. A. Barclay, and amounted to $95,000 at the time, besides some other debts owing by W. A. Barclay to her.

The testimony showed that W. A. Barclay had been disabled from work for about two years, on account of an injury, that he owed only one debt to a bank at the time of this conveyance other than the sums owing to his wife, and that he had no property. It was agreed that W. A. Barclay was the common source of title. The conveyance from Barclay to his wife was made on November 25, 1914. The deed was recorded in McLennan county, on November 26, 1914. Plaintiff in error's debt was created in December, 1914, or January, 1915. Mrs. M. K. Barclay paid the taxes before delinquency, in 1915, and subsequent years, on the property in question, and it stood on the record in her name during all this time. The notes constituting the basis of the judgment lien were executed by W. A. Barclay, April 8, 1915, the abstract of judgment was filed May 12, 1916, and the alias execution was issued December 8, 1920, in said cause, and levy was made thereunder on the lots in controversy, as the property of W. A. and M. K. Barclay. Notice of sale was dated December 9 by the sheriff, and the sale was to be January 4, 1921.

Opinion.

As presented by the record, we are of the opinion that there are only three questions for our determination in this case. The first involves the construction of the instrument of conveyance from Barclay to wife, as to whether it is a deed or mortgage. The second is, If the instrument herein is construed a deed, was it executed for the purpose of defrauding the creditors of W. A. Barclay, as prohibited by article 3966, Revised Statutes? And third, Was the claim of fraud barred by the 4 and 5 year statute of limitation, and was plaintiff in error guilty of great laches in not asserting its claim sooner?

Plaintiff in error contends by its first proposition that the instrument of date of November 25, 1914, from W. A. Barclay to his wife, Mrs. M. K. Barclay, was not a deed, but a mortgage, and as such does not place the title to said property in the said Mrs. M. K. Barclay as her separate estate. It further contends that a certain recital in the consideration makes the instrument on its face a mortgage. The recital is as follows:

"That I, W. A. Barclay, of the county of Bell, state of Texas, for and in consideration of the sum of the conveyance to a trustee, for the use and benefit of John Hancock Life Insurance Company, of Boston, Mass., by M. K. Barclay, of certain lands, same being of her separate property, and said conveyances being to secure moneys borrowed by the grantor herein, from said John Hancock Life Insurance Company, and the said M. K. Barclay assuming and agreeing to pay off, and fully discharge the several notes now held by said Life Insurance Company, as well as one certain note held by Detroit United Bank, of Detroit, Mich., said several notes, aggregating the principal sum of ninety-five thousand ($95,000) dollars, to secure which, in part, this conveyance is made, to said M. K. Barclay, who assumes the payments as above set out."

The testimony concerning the transaction...