Compton v. Perry

• Decision Date: 01 January 1859
• Citation: 23 Tex. 414
• Parties: E. G. COMPTON v. DANIEL PERRY.
• Court: Texas Supreme Court

23 Tex. 414

E. G. COMPTON

v.DANIEL PERRY.

Supreme Court of Texas.

1859.

Where a debtor, in order to secure the payment of certain debts, executes a deed of trust, with power to sell, etc., in default of payment, if a sale be made under it, and in pursuance of its terms, and it be fairly made, the title to the property will vest in the purchaser; and a conveyance by the trustee to the debtor's wife, or any other disposition he may see proper to make of the property, will be valid. But if the sale by the trustee be not made according to the terms of the deed of trust, or if, by any understanding between the cestui que trust, and the purchaser, it be so made that the property sells for a less price then it is worth, the rights of creditors will not be prejudiced by such sale.

Where the purchaser at such trust sale, receives a deed from the trustee, and one from the cestui que trust, for the entire interest, in consideration of advances made, to pay his debts; and at the same time, by another instrument, loans to the former owner, the property thus purchased, excepting certain products thereof, which are to be applied to the discharge of advances; and by another instrument of writing, executed at the same time, the purchaser, in consideration of love and affection, conveys all of the said property to a third person (the wife of the original owner) in trust, that he and his heirs shall remain in possession, until the profits therefrom, shall pay and discharge the amount due him for such advances; these different instruments are to be taken and construed together, as constituting one and the same transaction.

The effect of these deeds, upon their face, is, to pass the legal title to the property, by way of gift, from the original owner, through the purchaser to the last grantee (the wife), subject to the payment of the debts named in the deed of sale, out of the net proceeds of the estate conveyed; to be held, and managed by the purchaser, until payment, after which the absolute right, both of title and possession, would vest in the wife.

The statute of limitations does not run in favor of the claimant of property, against a creditor, until after the recovery of his judgment. 16 Tex. 286;26 Tex. 551.

ERROR from Harris. Tried below before the Hon. Peter W. Gray.

This was a suit for the trial of the right of property, commenced on the 4th of May, 1856, by the plaintiff in error, in the statutory mode, by filing an affidavit and bond, and superseding a levy, made by the defendant in error, on two negro slaves, named David and Ransom, by virtue of an execution in his favor, against Alexander Compton, the husband of the claimant.

Under the issues presented by the pleadings, the claimant asserted title to the property levied on, as her separate property, acquired by gift; she also claimed it under the statute of limitations, alleging that she, and him under whom she claimed, had held possession of the slaves, as his and her own, for more than two years next before the issuing of the execution, by virtue of which the levy on them was made; and that she had taken possession of, and converted to her own use, the slaves, more than two years previous to the rendition of the judgment against Alexander Compton, on which the said execution issued.

The plaintiff, Perry, alleged, by way of answer, that “the claim of the claimant, in said slaves levied on, if any interest she has, is nothing more than a release of an interest, in the nature of that of a mortgagee, and that the various arrangements made by Alexander Compton, the defendant in execution, Warren H. Manadue, the son-in-law of the claimant, by marriage with her daughter, of S. M. Westervelt, and of the claimant, were made with the view to hinder and delay the creditors of the said A. Compton (of whom plaintiff was one) in the collection of their just debts; and that by the actings and doings of the various administrators, and administratrix, of the estate of said Manadue, one of whom was the daughter of the said claimant, and the former wife of the said Manadue, and is now one of the securities on the bond of the claimant, are and were made in furtherance, and in carrying out of the design of the original parties; which actings and doings will more fully appear, by reference to the four copies of deeds, three of which bear date the 14th of August, 1848; and which conveyances, by the said Compton and Westervelt, to Manadue, and the subsequent conveyances, leases, and gifts, by said Manadue, were made to hinder, delay, and defraud the creditors of said A. Compton; and that the deed filed by claimant, December 5, 1856, in this cause, executed by Ann E. Young, and Overton Young, in her or their representative capacity, to the claimant, bearing date the 5th day of December, 1855, was made in furtherance of the original design aforesaid. And that if the said deeds are in any way valid or binding in law, that the said Manadue, under whom the claimant pretends to claim, had only the interest of a mortgagee in the said property, and that any release which the said Manadue, or his representatives, might make, or did make, would, and did operate in favor of the said Compton and his creditors; and that said property levied upon was, at the time of the levy, subject to the plaintiff's execution, by virtue of said levy.”

The plaintiff further alleged, that the note on which the judgment was rendered in his favor, against the said A. Compton, upon which the execution issued, was given to renew an indebtedness of long standing, which had been in existence prior to the 14th day of August, 1848. The deeds referred to, were set forth as part of the foregoing answer, and were in substance of the following effect, to wit:

1. An instrument of writing, or deed of trust, dated the 8th day of March, 1844, executed by Alexander Compton, of the first part, S. M. Westerfelt, and King Holstein, of the second part, and Edward Purcell, of the third part, reciting that, in consideration of the making and delivery, by Compton, to Purcell, of his four several promissory notes, for the sums, respectively, of $4,770.99, $1,500, $1,300, and $500, bearing ten per cent. interest, per annum, from date, and due on the 1st day of January, 1845; and, to secure the payment thereof, Compton conveyed to Westervelt and Holstein, a tract of land on Oyster creek, containing 830 acres, being the land purchased by said Compton, from Warren D. C. Hall; also all the stock, implements, personal property, of every description, growing crops, etc., on the plantation, and about thirty negro slaves (including the two negroes levied on); upon trust, nevertheless, that the said Compton and his heirs, should be permitted to remain in the quiet possession of the said property, to cultivate the plantation, and use the farming utensils, and other articles necessary to make the crops, until default should be made in the payment of the notes; and then, upon the further trust, that when default should be made in the payment of the said notes, in whole, or in part, it should be the duty of Westervelt and Holstein, or either of them, at the request of Purcell, or the holder of either of the notes, to sell the property, or a sufficient portion thereof, to discharge the said notes, for cash, to the highest bidder, after having first given thirty days' notice. This instrument further provided, that after any such sale, the excess should be paid, by the trustees, to Compton, after first paying the notes; and the latter bound himself, and his heirs, to deliver to the trustees, on their request, the said property; and, in default of a compliance therewith, they were empowered to sell the same, by a description thereof; and lastly, that if the notes should be paid, without resort to a sale, then the said instrument should be null and void. (Recorded 19th March, 1844.)

2. An instrument of writing, or indenture, entered into between S. M. Westervelt, of the first part, Alexander Compton, of the second part, and Warren H. Manadue, of the third part, on the 14th day of August, 1848, which, after referring to the preceding deed of trust, and reciting the fact, that the said Manadue was the owner...