Duveneck v. Kutzer
| Decision Date | 01 December 1897 |
| Citation | 43 S.W. 541 |
| Parties | DUVENECK v. KUTZER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Kendall county; Charles J. Gillespie. Special Judge.
Action by G. Duveneck against Albert Kutzer in trespass to try title. Verdict for defendant. Plaintiff appeals. Affirmed.
Tarleton & Jones, for appellant. George Powell, for appellee.
This is an action of trespass to try title brought by appellant against the appellee to recover certain parcels of land. The appellant, plaintiff below, alleged in his petition that appellee, defendant below, claims subdivision 14 of original lot No. 2, in the town of Boerne, under a deed from Reinhard J. Kutzer, and subdivisions 11, 13, and 15, on James street, in Boerne, a part of original lot No. 3, of survey No. 180, through a deed from Reinhold Kutzer, which deeds are described in our conclusions of fact; that when said deeds were executed plaintiff was a creditor of the several grantors, who were then insolvent, and without property subject to execution, save the lands by them conveyed to defendant; that their insolvency was known to defendant, and that said deeds were made by the grantors therein for the purpose of hindering, delaying, and defrauding their creditors; that after said deeds were executed plaintiff sued Reinhard J. Kutzer and Reinhold Kutzer on his several demands against them, attached the property, obtained judgments against them foreclosing his attachment liens, had the property sold under process issued on his judgments, and bought it in under execution, receiving deeds of the sheriff thereto. Plaintiff asked judgment canceling the alleged fraudulent deeds, and for restitution of the premises. The defendant answered by a general demurrer and a plea of not guilty. The case was tried by a jury, and a verdict returned for defendant, upon which the judgment appealed from was entered.
Conclusions of Fact.
On the 21st day of March, 1895, Reinhard J. Kutzer, as principal, and Reinhold Kutzer, as surety, made their promissory note to appellant, G. Duveneck, for $500, payable 12 months after date, with interest at the rate of 9 per cent. per annum. This note was given in lieu of an older note for money borrowed three years before, which was two years past due when this one was executed. The appellant sued on the note, and on the 21st day of April, 1896, recovered judgment thereon against the makers in the district court of Kendall county. On the 10th day of June, 1896, execution was issued on the judgment, and levied upon the lands in controversy, —subdivision 14 of original lot No. 2, as the property of Reinhold Kutzer; and subdivisions 10 and 12, in original lot No. 2, and subdivisions 11, 13, and 15, of original lot No. 3, survey 180, as the property of Reinhard J. Kutzer. By virtue of said execution and levy the property was sold by the sheriff of Kendall county, and bid in by the appellant, on the first Tuesday in July, 1896. The deeds of the sheriff bear date July 7, 1896. They were duly acknowledged on September 5, 1896, and filed for record two days after. On December 12, 1895, Reinhard J. Kutzer conveyed, by his deed of that date, to his nephew Albert Kutzer, subdivision 14 of original lot No. 2 in the town of Boerne. The deed recites a consideration of $825 cash, and it was duly filed for record on the 14th day of December, 1895, and recorded on the 28th day of February, 1896. The grantor had no other property after he made this deed except his homestead and exempt personal property. This conveyance left him insolvent. On December 10, 1895, Reinhold Kutzer conveyed to his son Albert, the appellee, subdivisions 10 and 12 of original lot No. 2, in the town of Boerne, and subdivisions 11, 13, and 15, on James street, in said town. The deed recites a cash consideration of $2,500. This instrument was filed for record on the 14th day of December, 1895, and duly recorded on the 28th day of February, 1896. On December 30, 1895, Reinhold Kutzer conveyed another tract of about 15 acres, situated in Boerne, to his son Otto, who is younger than Albert. This deed recites a consideration of $500 cash. These two deeds devested the grantor of all his property, real and personal, except his exemptions and homestead. Therefore, from the dates of the deeds to the time this cause was tried, he has been insolvent. In June, 1895, Reinhold Kutzer was indebted to the appellee in the sum of $1,035. (The origin and nature of this debt will hereinafter be fully stated.) At the same time he was indebted as follows: To Otto Rush, $200; to Mrs. Pfeiffer, $200; to Anton Koch, $100; to Ed Muertz, $100; to John Heine, $100; to Walter Tips, $550; and to John Sipple, $250. Reinhard J. Kutzer then owed the Alamo National Bank a note made by him as principal, and Reinhold Kutzer as surety, to the Fifth National Bank of San Antonio, Tex., for $825. At that time, the appellee being desirous of purchasing from his father and uncle the property in controversy, it was agreed that appellee should have the property in consideration of the cancellation of the debt due him from his father, provided that he would assume and satisfactorily arrange with the creditors the payment of the other indebtedness stated above. The appellee having, in pursuance to the understanding, assumed the payment of said indebtedness, and made satisfactory arrangements with all the creditors except John Sipple for the payment of said debts, and canceled the debt due by his father, the deeds to the property were afterwards, on their dates, executed in consideration thereof, there being no money paid. The reason why appellee made no arrangement with Sipple for the payment of his debt is that Sipple was not in the country and could not be seen. But, as is stated, appellee assumed its payment. Now, as to the debt of $1,035, owed appellee by his father and canceled in the transaction: On October 8, 1889, the appellee was 18 years old, and released by his father from his control, and, being then about to leave home to work for himself, his father promised to board, cloth, and pay him $15 per month if he would stay at home and work for him. This appellee assented to, and remained with and worked for his father under the agreement until June, 1895, thereby earning wages, at the rate agreed upon, for 69 months, amounting in the aggregate to $1,035. The debts due the other parties were assumed, and payments made or arranged, in the following manner: The debts Reinhold Kutzer owed Rush, Pfeiffer, Koch, Muertz, and Hein were settled by appellee giving his notes in lieu of his father's to the several parties for the respective amounts due them. This settlement was perfectly satisfactory to each of said creditors. The debt to Walter Tips was paid off entirely and fully discharged by appellee. The note due by Reinhard J. Kutzer to the Alamo National Bank was also paid and discharged by him. In January, 1896, appellee not having seen John Sipple, he being out of the country, in reference to the debt he had promised his father to assume, appellee, at the request of his father, for the purpose of enabling him to pay a debt he was due the Fifth National Bank of San Antonio, borrowed $200, and paid it to his father, and let him have a wheat separator worth $60 or $70; in consideration of which appellee's father reassumed the Sipple debt, and with the money received from appellee, together with $75 more, paid his debt to the Fifth National Bank, which debt he owed when he sold the premises in controversy to appellee. When Reinhold Kutzer sold the premises in controversy to this appellee the debts assumed by his son were all he owed, except the one to the Fifth National Bank, above mentioned, and the one to appellant, for which he was surety, which was not due when the sale was made. The appellee knew nothing of the debts owed by his father and uncle, except the ones assumed by him, when he purchased the property in controversy; and he made the purchase in good faith, without knowledge of the fact (if it be a fact) that the conveyances were made to defraud the grantors' creditors, or of any fact that would put him upon inquiry as to whether the conveyances were made for that purpose. The lands in controversy were not worth exceeding the sums expressed as the considerations in the respective deeds by which they were conveyed to the appellee.
Conclusions of Law.
All the evidence introduced by the appellee to show how the consideration for...
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