Gillette v. Davis

• Decision Date: 29 May 1927
• Docket Number: (No. 280.)
• Citation: Gillette v. Davis, 296 S.W. 658 (Tex. App. 1927)
• Parties: GILLETTE et al. v. DAVIS et al.
• Court: Texas Court of Appeals

Page 658

296 S.W. 658

GILLETTE et al. v. DAVIS et al.

(No. 280.)

Court of Civil Appeals of Texas. Eastland.

May 29, 1927.

Rehearing Denied June 17, 1927.

Appeal from District Court, Comanche County; Joe H. Eidson, Judge.

Suit by Leslie Gillette and others against R. D. Davis and another, consolidated with suit by R. D. Davis and another against the Standard Shoe & Leather Company and another. Judgment for defendants in first case and for plaintiffs in second case, and plaintiffs in first case and defendants in second case appeal. Reversed and remanded, with directions.

A. B. Haworth, of Comanche, for appellants.

Callaway & Callaway, of Comanche, for appellees.

PANNILL, C. J.

The appeal is from a judgment in a consolidated cause. One of the suits was by appellant Gillette against appellees in trespass to try title and to recover certain lands, and the other was a suit by the appellees against the Standard Shoe & Leather Company and J. T. Gilbreath, sheriff, for an injunction to restrain the sale of the land. The respective controversies grew out of the following transactions:

R. D. Davis was engaged in the retail mercantile business at Hasse. The house in which the business was conducted constituted both his residence and business homestead. In September, 1924, he was indebted to the Standard Shoe & Leather Company, owed other debts, traded the stock of merchandise and homestead aforesaid to one Donaho for a farm, and had the deed made to H. G. Davis, the 10 year old son of R. D. Davis. The stock of merchandise referred to was all the property Davis then had subject to execution. The debt due by Davis to the Standard Shoe & Leather Company remaining unpaid, judgment was obtained against him, execution was issued and levied on the land standing in the name of his son, H. G. Davis. The levy and sale was made of said real estate as the property of R. D. Davis. At the sale appellant Leslie Gillette became the purchaser and paid the amount of his bid to the sheriff, but before the sheriff could execute to him a deed, a writ of injunction was served upon the sheriff, attempting to restrain the sale. The sheriff then made due return of the execution, showing proper advertisement, notice, a lawful sale at which appellant became the purchaser, and the service of said writ of injunction. The amount paid by appellant was returned by the sheriff to the court and paid over to the judgment creditor. The sheriff's return showed his willingness to make a deed but for the writ of injunction. Appellant then brought this suit making R. D. Davis and his son, H. G. Davis, parties defendant, alleging that the transfer of the property was fraudulent. This suit and the injunction suit were consolidated as stated.

R. D. Davis and H. G. Davis answered pleading the general issue, in the alternative that if the property was not the property of H. G. Davis, it was the separate property of Mrs. R. D. Davis and was the homestead of R. D. Davis and wife. The latter intervened, set up the claim that the property in controversy was her separate property and her homestead.

At the trial before the court, judgment was entered for the defendants on the ground that the property was the homestead of the appellees R. D. Davis and wife, and perpetuating the temporary injunction against the sheriff, restraining the sale of the premises.

Numerous assignments are presented, and as germane thereto 20 propositions are asserted. It will not be necessary to discuss either the assignments or propositions seriatim, as it is believed that the propositions hereinafter discussed will dispose of the entire case.

The matters relating to the injunction suit can be disposed of, we believe, by the statement that the injunction was ineffective in this instance. It seems to be well settled in this state that the title of a purchaser of land at a sheriff's sale does not depend upon the making of the deed by the sheriff. A title under such a sale depends not upon the deed, but upon a valid judgment, levy, execution sale and payment of the money. Donnebaum v. Tinsley, 54 Tex. 362, and authorities there cited; Flaniken v. Neal, 67 Tex. 629, 4 S. W. 212; Baker v. Clepper, 26 Tex. 629, 84 Am. Dec. 591.

The sale having been completed before the writ of injunction was served or notice of its issuance brought to the attention of the sheriff, whatever title that could have passed by the sheriff's deed vested in the appellant. Appellant's petition contained a prayer requiring the sheriff to make him a deed, and upon another trial that part of the plea should prevail.

It is uncontradicted that the stock of goods formed a part of the consideration for the deed from Donaho to Harold G. Davis, that the debt to the judgment creditor stated had been incurred prior to the transaction noted, and that the placing of the title to the property in the name of Harold G. Davis left the debtor, R. D. Davis, without property subject to execution sufficient to satisfy his debts. The sale, in so far as a consideration therefor was furnished by said stock of merchandise, was as to creditors insufficient to place the title in H. G. Davis under our statutes relating to fraudulent conveyances. So far as the consideration for said deed from Donaho to H. G. Davis was furnished by the homestead of appellees, it was valid. Creditors have no interest in exempt property and the debtor may sell it or give it away at his pleasure, and as to the part of the premises representing the value of the Davis homestead it is immaterial whether the premises acquired from Donaho were intended by appellee R. D. Davis to be a gift to his son, or the property of his wife for whom the son should hold in trust.

A parol trust in favor of a failing debtor, where the purchase is made for the purpose of placing the property beyond the reach of his creditors cannot be ingrafted upon the deed. See authorities cited in Maples v. Maples (Tex. Civ. App.) 275 S. W. 1091.

Appellees assert that the judgment in their favor should be upheld, among other reasons, because appellant could not attack the deed in that he was not a creditor, within the meaning of...