Diltz v. Dodson

• Decision Date: 30 November 1918
• Docket Number: (No. 8931.)
• Citation: 207 S.W. 356
• Parties: DILTZ et al. v. DODSON et al.
• Court: Texas Court of Appeals

207 S.W. 356

DILTZ et al. v. DODSON et al.

(No. 8931.)

Court of Civil Appeals of Texas. Ft. Worth.

November 30, 1918.

Appeal from District Court, Taylor County; Joe Burkitt, Judge.

Suit by Nannie R. Diltz and another against J. T. Dodson and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. H. Graham, of Dallas, for appellants.

Scarborough & Davidson, of Abilene, for appellees.

DUNKLIN, J.

Mrs. Nannie R. Diltz, joined pro forma by her husband, W. L. Diltz, instituted this suit to restrain, by writ of injunction, the sale under execution of 320 acres of land which she claimed as her separate property, and which had been levied on to satisfy a judgment rendered against her husband, W. L. Diltz, in favor of R. W. Rogers, who, together with the sheriff levying the execution, were made parties defendant to the suit. From a judgment denying plaintiff the relief prayed for, she has prosecuted this appeal.

The judgment upon which the execution was issued was rendered by the county court of Taylor county May 2, 1916, and an abstract of the same was duly filed for record in the record of deeds of that county on May 6, 1916; all statutory requirements necessary to make the record of such abstract of judgment a lien upon any real estate owned by W. L. Diltz, which was subject to execution being complied with. The cause of action asserted in that suit was a judgment which R. W. Rogers had theretofore recovered against W. L. Diltz in the county court of Carter county, Okl., on November 16, 1915. The judgment rendered in county court of Carter county, Okl., contains the following recitals which show the amount of judgment and the indebtedness of W. L. Diltz to R. W. Rogers upon which the judgment was based:

"It is being fully shown to the court that this suit is based upon the consideration of $422.50 paid by the plaintiff to the defendant for four head of mules, which the defendant claimed and represented to the plaintiff were free and clear and discharged of all liens and incumbrances, and that he had a perfect right to sell the same, when in truth and in fact the said four mules were then mortgaged and incumbered to the amount and extent of $422.50, and that the plaintiff was compelled to pay said amount on said mules, in addition to what he had already paid to the defendant for the same, and that the defendant's title to said mules had wholly failed, and, being fully advised in the premises, the court doth find for the plaintiff, in the sum of $422.50, together with 6 per cent. interest thereon, from the 7th day of January, 1913, aggregating at this time $494.30, and that said amount shall draw interest from this date until paid at the rate of 6 per cent. per annum."

The judgment rendered by the county court of Taylor county was for the sum of $514.10, which was the aggregate of the principal and the accumulated interest of the former judgment.

On April 1, 1916, 1 month and 1 day prior to the date of the judgment rendered by the county court of Taylor county, Tex., and approximately 4½ months after the date of the judgment rendered by the county court of Carter county, Okl., W. L. Diltz executed to his son W. L. Diltz, Jr., a deed of conveyance, purporting to convey the 320 acres of land in controversy in this suit, also another tract of 240 acres of land, also two town lots in the town of Merkel. The consideration recited in that conveyance was "one dollar cash paid by W. L. Diltz, Junior, and the assumption of all indebtedness." On the same day W. L. Diltz, Jr., received the deed of conveyance he executed a similar conveyance to his mother, Mrs. Nannie R. Diltz, which purported to convey to her the same property, the consideration recited in that instrument being "one dollar paid by Nannie R. Diltz and the assumption of all indebtedness." All the property described in those conveyances was situated in Taylor county, Tex.

In the petition filed by plaintiff in this suit Mrs. Diltz claimed title to the 320 acres of land in controversy as her separate property through the deed last mentioned; and, in addition to her prayer for a writ of injunction to restrain the sale of the property to satisfy the judgment, she also sought a decree removing the cloud from her title, cast thereon by the record of said abstract of judgment.

In their answer the defendants, after a general denial of all the allegations contained in plaintiff's petition, pleaded specially that the conveyance from W. L. Diltz, Sr., to his son, W. L. Diltz, Jr., and the conveyance from the son to his mother were executed for the purpose of defrauding the creditors of W. L. Diltz, Sr., and especially for the fraudulent purpose of avoiding payment of the debt he owed to the defendant Rogers, evidenced by the two judgments above mentioned, and that such conveyances were therefore null and void, leaving the title to the property in controversy still in W. L. Diltz, Sr., and subject to the payment of the judgment now held by Rogers.

The deed from the judgment debtor, W. L. Diltz, to his son and the deed from his son to Mrs. Nannie R. Diltz were both filed for record in the deed records of Taylor county on July 8, 1916, 2 months and 2 days after the abstract of judgment had been duly filed and recorded in the deed records of that county.

The trial was by the court without a jury, and as no findings of facts were filed by the trial judge, every reasonable presumption must be indulged in support of the judgment rendered.

By article 6824, 4 Vernon's Sayles' Texas Civil Statutes, it is provided that an unrecorded deed of conveyance to land "shall be void as to all creditors and subsequent purchasers * * * without notice." And it is well established by a long line of decisions in this state that a creditor, who has fixed a lien upon land by the levy of a writ of attachment or other judicial process or by the filing of an abstract of judgment in the deed records is a creditor within the meaning of the article of the statute just referred to. McKaney v. Thorp, 61 Tex. 648, and decisions there cited.

It is also well settled that in a controversy between the holder of a prior unrecorded deed and such a creditor the holder of the unrecorded deed has the burden of showing, by proof, notice of his deed to such creditor at the time the latter's lien attaches, or such notice prior thereto. Turner v. Cochran, 94 Tex. 480, 61 S. W. 923. There was no proof whatever offered by the plaintiff to show such notice to Rogers at the time the abstract of judgment was filed, or at the time the execution was levied upon the land. As noted already, Mrs. Diltz in her petition specially pleaded that she acquired title to the property in controversy through the deed from her son to her, mentioned above. That deed contains no recitals to show that the title therein attempted to be conveyed was for the separate use and benefit of Mrs. Diltz; in other words, it contained no recitals which would have the legal effect to make the property therein attempted to be conveyed the separate property of the...