Collier v. Perry

• Decision Date: 23 January 1941
• Docket Number: No. 3977.,3977.
• Citation: 149 S.W.2d 292
• Parties: COLLIER v. PERRY et al.
• Court: Texas Court of Appeals

149 S.W.2d 292

COLLIER v. PERRY et al.

No. 3977.

Court of Civil Appeals of Texas. El Paso.

January 23, 1941.

Rehearing Denied March 20, 1941.

Second Rehearing Denied March 27, 1941.

Appeal from District Court, El Paso County; David E. Mulcahy, Judge.

Action by Betty Collier against Mary Perry and others to recover a tract of land. Judgment for defendants, and plaintiff appeals.

Affirmed.

Leon A. Kotosky and D. J. Smith, both of El Paso, for appellant.

Lea & Edwards, of El Paso, for appellees.

PRICE, Chief Justice.

This is an appeal from the District Court of El Paso County, Texas, in an action which sought the recovery of a small tract of land in El Paso County. Betty Collier, as plaintiff, sought recovery thereof from Arthur Perry, Mary Perry, and James Arthur Perry, as defendants. The trial was to the court, and judgment was rendered in favor of the defendants, from which judgment plaintiff has perfected this appeal. On demand of plaintiff the court filed findings of fact and conclusions of law.

The pleadings may be summarized by stating that they are in all respects sufficient to present the questions hereinafter discussed.

As reflected by the pleadings and evidence, the basis of plaintiff's claim to the land was, first, a judgment in the sum of $10,000 rendered by the District Court against Mary Perry, one of the defendants here, and an execution issuing thereon, the sheriff's return on the execution showing a sale of the property to the plaintiff here.

Defendant James Arthur Perry claimed the property under and by virtue of a deed from defendants Arthur Perry and Mary Perry, who were at all relevant times husband and wife and the parents of James Arthur Perry. This deed was executed and delivered on the 3rd day of June, 1936.

Plaintiff assailed this deed as being a voluntary conveyance within the meaning of Article 3997, R.S.1925, and under Article 3996, Revised Statutes, 1925, Vernon's Ann. Civ.St. arts. 3996, 3997, as being made to hinder, delay and defraud the creditors of defendants Mr. and Mrs. Perry.

Defendant James Arthur Perry pleaded, in addition to not guilty, that on the date of the conveyance to him the property was the homestead of his grantors.

Betty Collier, plaintiff here, as plaintiff, on the 1st day of June, 1937, filed suit in the District Court of El Paso County seeking to recover damages against Mr. and Mrs. Perry for the alleged alienation of her husband's affections by Mrs. Perry. The judgment before mentioned for the sum of $10,000 in favor of Mrs. Collier was rendered on the 14th day of December, 1937.

Plaintiff's principal ground of attack on the conveyance was that at the time of the execution thereof she was a creditor of Mary Perry and her husband, Arthur Perry, and that same, as to her, was void.

It seems well established that one having a cause of action for unliquidated demand, such as tort, is a creditor within the meaning of Article 3997. Colby v. McClendon, Tex.Civ.App., 116 S.W.2d 505.

It likewise seems well established that said article applies to creditors having valid claims on the date of the conveyance and not as to subsequent creditors. Clement v. First Nat. Bank, 115 Tex. 342, 282 S.W. 558; Shaw v. Head, Tex.Civ.App , 55 S.W.2d 190.

The trial court found, and the evidence seems to have been undisputed, that the conveyance was a voluntary conveyance.

The question on this branch of the case is narrowed to a determination of whether or not Mrs. Collier, plaintiff here, was a creditor on the date of the conveyance.

The trial court, among other findings, made the following:

"3. That during the later part of the year 1934 the defendant Mary Perry, being lonely because of the long absences of her own husband, became interested in Ooly Collier, the husband of plaintiff Betty Collier. That at various times since said year 1934, up to June 3rd, 1936, the defendant Mary Perry and said Ooly Collier met, and on one occasion they were in the City of Juarez, Republic of Mexico, together; that on more than one occasion the defendant Mary Perry came to the field where Ooly Collier, the husband of Betty Collier, was working and attracted the attention of the said Ooly Collier, and met with him. That as a result of this conduct on the part of the defendant Mary Perry and said Ooly Collier, and prior to June 3rd, 1936, the said Ooly Collier neglected his crops, particularly in the spring and early summer of 1936, and indulged in intoxicating liquors, and also prior to June 3rd, 1936 and because of the conduct of the defendant Mary Perry and Ooly Collier, the said Ooly Collier quarreled with his wife, Betty Collier. That the plaintiff Betty Collier and her husband continued to live together in the same home until November of 1936, and that except as to his drinking, his quarreling, and his neglect of the crops, the relationship of husband and wife including society, companionship, and services, continued to exist between the plaintiff Betty Collier and her husband until after June 3rd, 1936, and probably to on or about the time of their separation in November of 1936.

"4. That the course of conduct began by Mary Perry in the year 1934 resulted in the separation of the plaintiff Betty Collier and her husband in November of 1936, and also resulted, together with other acts and conduct subsequent to June 3rd, 1936, in the filing of a petition in cause No. 44684 in the Forty-first District Court on the first day of June, 1937, and in the obtaining of a judgment by Betty Collier against the defendants Arthur Perry and Mary Perry in the sum of $10,000.00 on the 14th day of December, 1937; and thereafter execution was issued in said cause, levied upon the property involved in this lawsuit on the 12th day of February, 1938, and purchased by the plaintiff at sheriff's sale on the 15th day of April, 1938."

"Conclusions of Law

"1. A cause of action does not lie for attempted alienation of affections. The evidence in this cause is wholly insufficient to prove an alienation of Ooly Collier's affection for his wife, the plaintiff Betty Collier, as of June 3rd, 1936. Potter v. Howser, 104 Neb. 367, 177 N.W. 169. Inasmuch as plaintiff had no cause of action against the defendant Mary Perry and Arthur Perry on June 3rd, 1936, the date of the conveyance from them to their minor son James Arthur Perry, the said Betty Collier, plaintiff in this cause, was not a prior creditor of said Mary Perry and Arthur Perry within the meaning of Art. 3997, Revised Civil Statutes of 1925 [Vernon's Ann.Civ.St. art. 3997].

"* * *

"3. The property conveyed by the defendants Mary Perry and Arthur Perry to their minor son James Arthur Perry on June 3rd, 1936, was not at that time the homestead of the defendants Mary and Arthur Perry, but had long prior thereto been abandoned, having been appropriated to an inconsistent use. Archer v. Youngblood [Tex.Civ.App.], 129 S.W.2d 382, writ of error refused."

It is clear that the finding was that plaintiff here was not a prior creditor of defendants Mary and Arthur Perry within the meaning of said Article 3997. These findings are attacked by the appellant, and it is asserted that same were made from a misapprehension on the part of the trial court of the law governing.

It is established by the judgment, the foundation of plaintiff's claim to title, that there was a grave and serious infraction by defendant Mrs. Perry of the rights of the plaintiff. The judgment does not establish when the cause of action upon which it was rendered arose, further than, of course, it was sometime prior to the filing of the petition therein on June 1, 1937. In the action for alienation of affections, as in any other cause of action, there must be a breach of legal duty and damages resulting to the plaintiff therefrom. The gist of the action is the intentional or purposeful alienation of the affections of one spouse from the other. The damage is for the loss of consortium. To establish a cause of action it is not necessary that there be a loss of all elements included in that term. But any substantial impairment thereof, through unjustified intentional conduct, creates a cause of action in favor of the spouse damaged against the offender in this respect. Kahn v. Grothaus, Tex.Civ.App., 104 S.W. 2d 932.

The trial court did find that an attempted alienation of affection, in and of itself, does not give rise to a cause of action. This, we think, is correct in the event that as a result of such attempt there is no loss of affection or consortium. A misrepresentation which does not deceive, for instance, is not actionable fraud.

As we have stated, the question here is as to when plaintiff's cause of action accrued against Mrs. Perry. That Mrs. Perry and plaintiff's husband were acquainted prior to the conveyance in question is settled by the findings of the trial court. Their acquaintance began as early as 1934. From time to time from that date to June 3, 1936, they saw each other; on more than one occasion Mrs. Perry came to the field where plaintiff's husband was working and met him; prior to June 3, 1936, plaintiff's husband neglected his crops and indulged in intoxicating liquors; this was on account of the conduct of Mrs. Perry and plaintiff's husband; that as a result of this conduct, also, plaintiff's husband quarreled with her.

To our mind the findings of the court do not necessarily show designed action to alienate the affections of plaintiff's husband prior to June 3, 1936. There is no finding by the trial court that such was the case. It might be that an inference of wrong-doing might have been drawn by the trial court, but same was not so drawn by the court. A husband's attitude toward another woman may cause bickerings and quarrels with his wife, but for the wife to have a cause of action against the woman, the subject of the disagreement, her action must be wrongful. For an action to be wrongful in such a case, it must be action designed to alienate the...