Durrett v. Chenault

• Decision Date: 13 April 1921
• Docket Number: (No. 1790.)
• Parties: DURRETT et al. v. CHENAULT et al.
• Court: Texas Court of Appeals

230 S.W. 771

DURRETT et al. v. CHENAULT et al.

(No. 1790.)

Court of Civil Appeals of Texas. Amarillo.

April 13, 1921.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Action by Mrs. Marcellus Durrett and another against Mrs. Kate Chenault and others. From a judgment against the named defendant, but denying other relief sought, plaintiffs appeal. Judgment against the named defendant affirmed, and otherwise reversed.

Read, Lowrance & Bates, of Dallas, for appellants.

J. L. Goggans, B. B. Hemphill, O. F. Wencker, and W. F. Bane, all of Dallas, for appellees.

HUFF, C. J.

Mrs. Durrett, joined by her husband, as plaintiff, sued Mrs. Kate Chenault on two notes, one for $1,000, dated July 3, 1913, and due December 13, 1913, bearing interest at the rate of 10 per cent., the other note for the sum of $300, dated August 6, 1914, due six months after date. The payee in both notes was John W. Fields, and both provided for 10 per cent. attorney's fees. It was alleged the notes were secured by a chattel mortgage on 200 sheep, 25 head of horses and mules, and 20 cows; that the property had been sold or had died; John W. Fields died, leaving a will; and that the executor under the will properly assigned the notes to appellant. The petition joined, as defendants with Mrs. Chenault, her children, David J., Emerson and William O. Chenault, and her two daughters, Mrs. Sallie K. Love and Mrs. Amelia Frances Eaton, with their respective husbands. It is alleged, in effect, that on December 10, 1914, Mrs. Chenault executed a deed to David J. Chenault for 200 acres of land, to Sallie K. Love, 120 acres of land, to William O. Chenault 135 acres of land, to Emerson Chenault 90 acres, and to Amelia Frances Eaton 135 acres; that no cash consideration was paid by either of the parties; that each gave their respective notes for $2,500, payable to the order of Mrs. Kate Chenault, on or before 20 years, and that a vendor's lien was retained in each of the deeds to the respective tracts of land so conveyed; that the deeds by Mrs. Kate Chenault to her children were without any valid consideration; that the deeds were executed for the purpose of hindering, delaying, and defrauding her creditors, etc.; that appellants' debt had accrued prior to executing the deeds; that all of the children had notice that the deeds were made for the purpose of defrauding, etc., and alleged that some of the notes had been returned without having been paid; that under the will of John Chenault, the husband of Mrs. Kate Chenault, she was entitled to a life interest in all of said lands amounting to 546 acres; that appellant is informed Mrs. Chenault did not take under the will, but took under the law of descent and distribution, and that she was entitled to one-half in all of the property, being her community interest in the land, which was reasonably worth $50,000. They alleged in the alternative, if she took under the will, she was entitled to a life estate which was reasonably worth $10,000; that if appellant is not entitled to cancellation of the deeds they are entitled to an injunction against Mrs. Kate Chenault, restraining her from transferring the notes. The prayer is for judgment on the notes, that the deeds to the land be declared void, and that Mrs. Kate Chenault's interest in the land be held subject to the indebtedness. If the deeds cannot be set aside, the appellant have judgment, enforcing the named children from paying the notes, and to pay the proceeds into the registry of the court, and that Mrs. Kate Chenault be enjoined from transferring the notes.

There was a jury in the trial court, but the judge instructed the jury to return a verdict against Mrs. Kate Chenault, in favor of the appellant, for the amount of the notes, principal, interest, and attorney's fees, $2,018.50, and to find for the defendants upon the other issues.

The first assignment presents as error the action of the court in instructing a verdict on the issue of fraud in conveying the land to the children. The propositions thereunder are:

"(1) It was error to instruct a verdict where there was any evidence on the issue as to whether Mrs. Chenault executed the deeds to her children with intent to delay, hinder, or defraud her creditors in the collection of their debts; (2) the burden is on the children to whom their mother deeded the property to show that they paid a valid consideration, and that the mother retained a sufficient amount of property, subject to execution, to satisfy her creditors; (3) their gift, which is not upon consideration, is void as to prior creditors," etc.

The facts we do not think show the property deeded to the children the community proper of Mrs. Chenault and her deceased husband. It is true that Mrs. Chenault claimed that it was and in consulting her lawyer he advised that she had a community interest in 240 acres of land, but it would take a lawsuit to establish it. This Mrs. Chenault was unwilling to enter into. There is no evidence in the record to show how or from whence her husband, John Chenault, derived the title to the 800 acres of land, which appears passed by his will a life estate to his wife, Mrs. Chenault, and at her death the title to vest in the children. The children contended that Mrs. Chenault had only a life estate. Mrs. Chenault was indebted and she says she desired to sell some of the land to pay her debts, but her children would not join her in the deed and that they then made an agreement to divide it and it appears did so, by executing to each deeds to several tracts of land, and in the division the mother was deeded 120 acres and as we understand, in fee. The children obtained the several tracts, but executed to Mrs. Chenault their several notes, for the sum of $2,500, payable to her order, on or before 20 years after date. The notes, we take it, were negotiable, and secured by vendor's lien on their respective tracts of land. Mrs. Chenault also obtained a life estate in 10 acres of land as a homestead, having situated on it the home place—the house and outbuilding. Mrs. Chenault, the evidence tends to show, at the time of executing the deeds and the notes, was insolvent and indebted to several parties. The personal property upon which a chattel mortgage was given to secure appellant's debt, had been disposed of by Mrs. Chenault—just when is not shown—she says by consent of Mr. Fields, the original payee of the notes. He is dead, but when he died is not shown. Mrs. Chenault testified her children had not paid the notes or the interest on them, and repeats this several times, but does admit that one son paid her $1,500; that another claimed she was indebted to him, and she...