Dendy v. Cockerham
| Decision Date | 13 May 1935 |
| Docket Number | No. 4308.,4308. |
| Citation | 82 S.W.2d 756 |
| Parties | DENDY v. COCKERHAM et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
Suit by O. T. Dendy against O. D. Cockerham and wife. From a judgment for defendants, plaintiff appeals.
Affirmed.
Carl Gilliland, of Hereford, for appellant.
Dameron & Dameron, of Hereford, for appellees.
On February 2, 1932, in the district court of Deaf Smith county, O. T. Dendy obtained a judgment, which he had duly abstracted, against O. D. Cockerham for the sum of $2,009.27 and interest, none of which has been paid.
On August 2, 1930, O. D. Cockerham, by warranty deed which was filed for record on August 5th thereafter, conveyed to his wife, Hester L. Cockerham, for a recited consideration of $10 cash and love and affection, lots Nos. 20 and 21 in block No. 5 of the Evants addition to the town of Hereford, lots Nos. 8, 9, and 10 in block No. 19 of the original town of Hereford, and an equity in the south one-half of section No. 152 in block M-7, all of which is situated in and will be hereafter designated as the Deaf Smith county lands.
On the same day, O. D. Cockerham conveyed to his wife, by his separate warranty deed, the validity of which is not attacked, certain lands in Lamb county, Tex., for the recited consideration of $10 cash and love and affection.
On July 14, 1933, O. T. Dendy, the appellant, instituted this suit in the district court of Deaf Smith county against O. D. Cockerham and his wife, the appellees, to have the deed made by O. D. Cockerham, conveying the Deaf Smith county lands to his wife, Hester L. Cockerham, adjudged void as to creditors. He alleged that the deed to said Deaf Smith county lands was without consideration valid in law, constituted a voluntary conveyance, was made by the grantor therein to hinder, delay, and defraud his creditors, and especially the appellant; that O. D. Cockerham was and is greatly indebted to appellant and others, was and is insolvent; and prayed that said deed be canceled and his judgment lien foreclosed on the Deaf Smith county lands.
The appellees answered by general denial; alleged that the deed from the husband, conveying the Deaf Smith county lands to the wife, was made in good faith; that said land was and had at all times since its purchase been the separate property of Hester L. Cockerham; that the consideration therefor was paid out of her separate funds upon an express agreement between her and her husband that the land be purchased with her funds, conveyed to O. D. Cockerham, and the legal title thereto held in his name in trust for her; that she was the equitable owner thereof and the deed was made to vest the legal title in her.
In the alternative they alleged that if they are mistaken as to the title being held for her under an express trust, then they plead that she was the equitable owner under a resulting trust because the consideration for the land was paid out of her separate funds, and the deed made to vest in her the legal title thereto.
They also set up as an alternative plea that if they are mistaken in their averments as to an express trust and as to a resulting trust, then they allege that O. D. Cockerham used funds of his wife, Hester L. Cockerham, to pay for said lands; that he was indebted to her in a sum of money equal to the value of the lands conveyed, and the deeds were made in payment of such indebtedness. They also alleged that the consideration expressed in said deed is not the true consideration, but that the true consideration was and is as set out in their answer.
Under appropriate explanatory charges the court submitted special issues in response to which the jury found in effect: That O. D. Cockerham did not convey the Deaf Smith county lands to his wife, Hester L. Cockerham, with the intent to hinder, delay, or defraud his creditors. That the deed was a conveyance upon a consideration deemed valuable in law. That prior to the conveyance of the land in controversy to O. D. Cockerham, it was agreed between him and his wife that it was to be paid for out of her separate funds, deeded to him, and the title thereto held in trust for her. That prior to the conveyance of said lands to O. D. Cockerham he had been handling and investing the separate funds of his wife, and that he invested such funds in the Deaf Smith county lands, and the actual consideration for said lands was paid with the separate funds of Hester L. Cockerham.
In answer to a special issue given at the request of appellant, the jury found in substance that the two deeds by O. D. Cockerham, dated August 2, 1930, conveying to his wife the Deaf Smith county lands and the real estate in Lamb county, did not render him insolvent.
On these findings judgment was rendered to the effect that the appellant take nothing by his suit.
The appellant assigns as error the action of the trial court in refusing, at his request, to peremptorily instruct the jury to return a verdict in his behalf.
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