Dittman v. Weiss

• Decision Date: 25 April 1895
• Citation: 31 S.W. 67
• Parties: DITTMAN v. WEISS et al.
• Court: Texas Court of Appeals

31 S.W. 67

DITTMAN v. WEISS et al.

Court of Civil Appeals of Texas.

April 25, 1895.

Appeal from district court, Colorado county; T. H. Spooner, Judge.

Action by Weiss Bros. and others against C. Anna Dittman to have conveyances to defendant's husband declared void as in fraud of creditors. From a judgment for plaintiffs, defendant appeals. Reversed.

Geo. McCormick, W. S. Delany, and M. Kennon, for appellant. M. C. McLenore, Jr., for appellees.

PLEASANTS, J.

This is the second appeal in this cause to this court. The decision in the first appeal is reported in 4 Tex. Civ. App. 35, 23 S. W. 229. H. Amthor, the alleged debtor of C. A. Dittman, the deceased husband of the appellant, on the 6th of December, 1887, conveyed both personal and real property to the said C. A. Dittman, in settlement and payment, as alleged, of debts due from the vendor to the vendee; and on the 12th of the same month Amthor made conveyance to the same party of other real property, for which Dittman paid cash, and at the time of these conveyances Amthor was insolvent, and on the 13th of December, 1887, he made an assignment to one L. Kauffman, for the benefit of such of his creditors as should agree to accept their proportional share of his estate and relieve him from liability to them. The appellees are accepting creditors under this assignment. The assignee, Kauffman, having refused their request to bring this suit, the appellees, after indemnifying him against costs, filed their suit in the district court of Colorado county against Dittman, in February, 1888, for the benefit of themselves and other accepting creditors of Amthor. The plaintiffs sought to have the conveyances from Amthor to Dittman canceled, and the title to the property conveyed vested in the assignee, Kauffman, on the ground—First, because they were made by Amthor in contemplation of the assignment made by him on the 13th of December, 1887, with full knowledge of such purpose by Dittman at the time of the execution of the conveyances; and, second, because the conveyances were made in the execution of a conspiracy between the vendor and the vendee, to hinder, delay, and defraud the creditors of the former. The plaintiffs further alleged that if Dittman was in reality a creditor of Amthor, which was not admitted, but denied, at the time of the execution of the conveyances, the same were but mortgages, and that the property conveyed was of value largely in excess of the debts intended to be secured; and they prayed that, if the conveyances were found to be mortgages, the property be sold, and the proceeds of the sale be first applied to the payment of Dittman's debt, and the balance be delivered to the assignee for the benefit of the accepting creditors. The defendant answered the petition, and denied its allegations, and averred that he purchased the property, both real and personal, described in the deeds and bills of sale, executed to him by Amthor, on the 6th of December, 1887, in satisfaction of debts due him by Amthor, aggregating about $13,000; that the purchase was made in good faith, and for a fair price; and he further averred that on the 12th of December, 1887, he purchased from Amthor several tracts of land, for which he paid a fair price; that the purchase was made, and that the money was paid to Amthor in good faith; that, at the time, Amthor represented to him that he owed several debts, which he desired to pay, and that he (defendant) believed at the time, and still believed, that Amthor's sole object in selling the lands to him was for the purpose of paying his debts; that defendant did not know that Amthor was insolvent when he made the sales to him, on the 6th and 12th of December, but that, on the contrary, he believed that Amthor had sufficient means to pay off all of his debts; that, if Amthor made the sale with the intent to hinder, delay, or defraud his creditors, defendant had no knowledge or suspicion of such intention. And defendant further denied that the sales were made by Amthor in contemplation of the assignment made by him on the 13th of December, and averred that if, at the time of said sales, Amthor was contemplating an assignment, defendant had neither notice, information, nor suspicion of such contemplation. Upon the issues of fact presented by the petition and answer, evidence was offered, respectively, by plaintiff and defendant, in support of the averments of the petition and answer; and, when the same had been heard, the court would not permit argument to the jury, and, on his own motion, instructed the court to return a verdict for the plaintiffs, which was accordingly done, and upon this verdict the court rendered judgment, canceling the sales made by Amthor on the 6th and 12th of December, and divesting the title to all of the property out of the appellant, and vesting the same in the assignee, Kauffman, and adjudging costs for plaintiffs against appellant. This instruction is assigned as error; and the assignment must be sustained, and, for the error of the court in giving the instruction, the judgment of the court must be reversed.

It is elementary that, when there is any evidence before the jury tending to sustain any material averments in the pleading of either party, it is the right of such party to have the issue decided by the jury, and it is only when there is no evidence on behalf of one of the parties that the court can direct a verdict for the other. The jury, and not the judge, must determine the weight of the evidence. But the trial court, in approving the bill of exceptions taken by the defendant to its action, in refusing to permit the counsel to argue the case before the jury, and requiring a verdict to be returned for the plaintiff, makes this explanation: "The ruling of the court herein complained of was strictly in accordance with the decision of the court of civil appeals rendered in this case on a former appeal, wherein the court said, if certain facts were proved, then the conveyances from Amthor to Dittman would be void, and these identical facts mentioned by the court were proven." We have carefully examined the opinion of this court in the decision referred to, and we think the learned trial court misconstrued that opinion. We find nothing in its language which authorized the instruction complained of.

The appellant's first assignment of error is that the court erred in refusing to permit the witness Jackson, who had testified on behalf of plaintiffs as to the value of the several tracts of land conveyed to Dittman by Amthor, as if each tract had been sold separately and by itself, to testify to the...