Foxworth-Galbraith Lumber Co. v. Thorp, 4452.

• Decision Date: 23 September 1935
• Docket Number: No. 4452.,4452.
• Citation: 86 S.W.2d 644
• Parties: FOXWORTH-GALBRAITH LUMBER CO. v. THORP et al.
• Court: Texas Court of Appeals

Page 644

86 S.W.2d 644

FOXWORTH-GALBRAITH LUMBER CO. v. THORP et al.

No. 4452.

Court of Civil Appeals of Texas. Amarillo.

September 23, 1935.

Rehearing Denied October 21, 1935.

Appeal from Lubbock County Court; E. L. Pitts, Judge.

Action by the Foxworth-Galbraith Lumber Company against W. B. Thorp and others, wherein Mrs. Mabel Mae Thorp intervened. From an adverse judgment, plaintiff appeals.

Affirmed.

Wilson, Randal & Kilpatrick, of Lubbock, for appellant.

Lockhart & Brown and Vickers, Campbell & Evans, all of Lubbock, for appellees.

HALL, Chief Justice.

July 2, 1929, the Foxworth-Galbraith Lumber Company recovered a judgment against W. B. Thorp for $534.50, together with interest and costs. The suit was based upon a note signed by Thorp. Execution was issued on the judgment October 3, 1929, and returned nulla bona. The judgment remained unsatisfied, and on January 27, 1934, the appellant company sued out a writ of garnishment and had the same served on the First State Bank of Ropesville, Tex., for the purpose of impounding funds alleged to belong to W. B. Thorp in said bank, and sought to subject said funds to the payment of its judgment.

The bank answered in substance that at the time of the service of the writ it had on hand $400 collected by it upon a draft payable to the order of the First National Trust & Savings Bank of San Diego, Cal.; that it received the draft with the vendor's lien note attached, payable to the order of Mabel Mae Thorp, the wife of W. B. Thorp; that the sum of $400 was collected from the maker of the note, and garnishee was holding it for the purpose of remitting in payment of the draft. The bank further answered that it did not know to whom the fund belonged, and tendered the same into court, asking for attorney's fees for filing its answer.

The First National Trust & Savings Bank of San Diego and W. B. Thorp each answered, disclaiming any interest in the $400.

Mrs. Mabel Mae Thorp intervened, claiming the fund.

Foxworth-Galbraith Lumber Company replied to the plea of intervention, alleging that the $400 was in truth and in fact the property of W. B. Thorp, or the community property of said Thorp and wife.

The case was tried to the court, without a jury, and the judge held that the $400 in controversy was the separate property of Mrs. Thorp, and not subject to the writ of garnishment.

It appears from the record that on March 7, 1928, Millie I. Ratcliff and her husband executed a warranty deed, retaining the vendor's lien, conveying "unto the said Mrs. Mabel Mae Thorp, as a part of her own separate property and estate," labor 4 in league 18 of the Wichita county school lands, situated in Hockley county. The habendum clause in said deed is, in part, as follows: "To have and to hold * * * unto the said Mabel Mae Thorp, as her own separate property and estate," etc. This deed was filed and recorded April 2, 1928, about twenty months prior to the date of the judgment upon which this suit is based. January 1, 1930, Mabel Mae Thorp, joined by her husband pro forma, executed to Mrs. Belle Pratt a warranty deed, retaining the vendor's lien, conveying the same property, the consideration expressed in the deed being the assumption by Mrs. Pratt of the indebtedness which Mrs. Thorp assumed when she acquired the property, and in addition thereto the execution by Mrs. Pratt and her husband of two promissory notes, each for the sum of $500, of even date with the deed, maturing on or before May 1, 1930, and January 1, 1931, respectively, said notes bearing interest from date at the rate of 8 per cent., and secured by a vendor's lien on the property conveyed. They were made payable to Mabel Mae Thorp. On November 23, 1933, Mrs. Thorp deposited with the East San Diego Branch of the First National Trust & Savings Bank of San Diego, Cal., a draft drawn on Mrs. Pratt, through the First State Bank of Ropesville, Tex., for the sum of $400, and attached thereto the vendor's lien note with a release, with instructions to deliver the release when the draft was paid. Mrs. Pratt paid the draft, and both the note and the release were delivered to her.

In reply to Mrs. Thorp's plea of intervention, the appellant lumber company alleged that the conveyance of the land to Mabel Mae Thorp was in fraud of creditors, and that the note upon which the judgment was rendered was given by W. B. Thorp for materials for the erection of improvements upon the land in controversy.

It is recited in the judgment that the court is of the opinion, and finds, that the fund of $400 in controversy is, and was at the time of the making of the affidavit and garnishment and service of the writ in question, the separate property and estate of Mabel Mae Thorp, and that said fund is not the property of W. B. Thorp nor the community estate of W. B. Thorp and wife, Mabel Mae Thorp, and that she is entitled to recover said sum as to all parties to this suit.

The...