Glenney v. Crane

• Decision Date: 26 October 1961
• Docket Number: No. 13817,13817
• Citation: 352 S.W.2d 773
• Parties: D. J. GLENNEY, III, Appellant, v. Bess Burkitt CRANE, a Feme Sole, Appellee.
• Court: Texas Court of Appeals

Page 773

352 S.W.2d 773

D. J. GLENNEY, III, Appellant, v. Bess Burkitt CRANE, a Feme Sole, Appellee.

No. 13817.

Court of Civil Appeals of Texas, Houston.

Oct. 26, 1961.

On Motions for Rehearing Nov. 30, 1961.

Second Motion for Rehearing Overruled Jan. 4, 1962.

Fred Parks, Donn C. Fullenweider, Houston, for appellant.

Kelly & Ryan, C. O. Ryan, Houston, for appellee.

COLLEMAN, Justice.

D. J. Glenney, III, plaintiff in the trial court, appeals from the judgment of that court which granted the defendant, Bess Burkitt Crane, a summary judgment.

On May 22, 1950, Joe Glenney, Jr., allegedly under duress, deeded certain real estate to appellee. On November 6, 1957, Joe Glenney, Jr., deeded the same real estate to his son, appellant herein. By affidavit attached to his answer to appellee's motion for summary judgment, appellant alleges that the consideration for this deed was his agreement (1) to pay his father $200.00 to $300.00 monthly for life (2) to hire attorneys to institute and prosecute a suit to cancel the deed to appellee, (3) $10.00 in cash, and (4) love and affection.

On December 15, 1959 appellee recovered a judgment against Joe Glenney, Jr. in the sum of $110.399.30 by reason of his default in the payment of certain promissory notes dated June 1, 1950, and executed on or about that date. On January 6, 1960, appellee assigned this judgment to George W. Burkitt, who caused execution to issue. By deed dated March 1, 1960, the Sheriff of Harris County, by virtue of this exeuction, granted, sold and conveyed to George W. Burkitt all of the right, title and interest of Joe Glenney, Jr. in and to the same real estate previously conveyed by Joe Glenney, Jr., as above recited.

This is a suit by appellant against appellee to recover title to this same tract of land and to set aside the deed from Joe Glenney, Jr. to appellee on the ground that is was procured by duress and alternatively, that the deed was intended by the parties as a mortgage to secure indebtedness.

Appellee contends that the deed from Joe Glenney, Jr. to appellant was, as a matter of law, void as to priot creditors of Joe Glenney, Jr. under the terms of Art. 3997, R.C.S., in that it was not made upon consideration deemed valuable in law. There is no contention that Joe Glenney, Jr. was at that time possessed of property within this state, subject to execution, sufficient to pay his existing debts. Appellee's contention, that by reason of the sale under execution appellant no longer has any interest in the land, constituting the subject matter of this suit, which would entitle him either to set aside the conveyance of May 22, 1950, or to have it reformed and declared to be a mortgage, was sustained by the trial court and the summary judgment granted.

The first question to be determined is whether or not the consideration for the deed of May 22, 1950, was one deemed valuable in law. If there was not such a consideration for this deed, it was void as to appellee, a prior creditor, and the property was subject to sale under execution without first bringing a suit to set it aside. Snow v. Harding, 180 S.W.2d 965, Tex.Civ.App., error ref. Under Art. 3997, supra, proof of actual intent to defraud is not necessary to render a conveyance void. First State Bank of Mobeetie v. Goodner, 168 S.W.2d 941, Tex.Civ.App. However, if a conveyance is made with actual intent to delay, hinder or defraud creditors, it is void as to such creditors even though a consideration deemed valuable in law is paid, if the grantee knows of the grantor's frauduent purpose. Art. 3996, R.C.S., Vernon's Ann.Civ.St. art. 3996; Chauncey v. Gambill, 126 S.W.2d 775, Tex.Civ.App., writ dism., judg. correct.

Ten ($10.00) dollars cash, or love and affection, or both, are not consideration deemed valuable in law. Ramsey v. Abilene Building & Loan Ass'n, 57 S.W.2d 877, Tex.Civ.App. The agreement to hire attorneys to institute a suit could not constitute a consideration deemed valuable at law as against prior creditors since no benefit would accrue to the grantor by reason either of the hiring of the lawyers of by the successful prosecution of the suit. Such a consideration could not be applied by the grantor to the payment of his debts.

The payment of one creditor in preference to another by a transfer of property has been held a consideration valuable in law. Adams v. Williams, 112 Tex. 469, 248 S.W. 673. However, the value of the property transferred cannot be greater than reasonably necessary to pay the debt. Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769. Where a conveyance of property in settlement of a debt was made by a father to his son, it was held that the transaction was not void by reason of Art. 3997, R.C.S.; Chauncey v. Gambill, supra.

For a consideration to be one deemed valuable in law, it must be substantially equal to the value of the property conveyed. O'Banion v. Henry, 128 Tex. 59, 96 S.W.2d 233, opinion adopted. Appellant in his affidavit says that he agreed to pay his father not less than $200.00 each month for life. The value of such a contract could be proven by competent evidence. While Joe Glenney, Jr. testified that the property was worth at least $1,000,000.00, there was no testimony as to the value of his equitable right to the property, or of the value of his right, title and interest, if any, therein. The record shows that at the Sheriff's sale the highest bid was $500.00.

In Pattison v. Highway Insurance Underwriters, Tex.Civ.App., 292 S.W.2d 694, 699, ref., n. r. e., this Court held: 'The cases make it plain that in summary proceedings the burden rests heavily upon the moving party to negative conclusively the existence of a genuine issue in regard to some controlling fact entitling the movant to judgment.' (Emphasis supplied.) On this issue the movant has not sustained that burden.

Appellant contends that the court erred in holding that the Sheriff's deed to the right, title and interest of D. J. Glenney, Jr. in the Jackson E. Bundick Survey conveyed his cause of action to set aside the deed of May 22, 1950, on the ground of duress. Since this question would probably arise on a new trial, we will consider the assignment.

In Junsen et al. v. Wilkinson et al., 133 S.W.2d 982, 986, Tex.Civ.App., erit ref., judg. correct, Justice Cody of this Court, after a careful review of applicable authorities, stated (on motion for rehearing):

'As appears from the Chase case, Chase v. [York County Savings] Bank, 89 Tex. 316, 36 S.W. 406, 32 L.R.A. 785, 59 Am.St.Rep. 48, cited in our original opinion, not every interest in property was subject to execution at common law. Equitable interests and estates were not subject to execution for the technical reason that a writ of execution issued only from law courts where equitable interests were not cognizable. This technical obstacle to subjecting equitable interests to exeuction, as appears from our orininal opinion, was removed by an act of Parliament passed in the reign of Charles II. This act resulted in making the property of a defendant in judgment, which he held by equitable title, subject to execution; it did not make mere equities, by which a defendant might acquire title to property or receive other relief, subject to execution, or expressed perhaps more conventionally, the act aforesaid subjected to execution property held by a defendant-in-judgment by a present vested equitable right, but did not affect equitable rights which were not vested in possession but lay only in action, and which could become vested only after judgment had thereon. From the Chase case it is evident to us that our Supreme Court regards the aforesaid act of Parliament as forming a part of the common law of England relative to executions, and which was adopted as the rule of decision by the Legislature.' (Emphasis ours.)

In Brinkman v. Tinkler, 117 S.W.2d 139, 141, Tex.Civ.App., writ ref., Justice Slatton stated:

'It is undoubtedly true that a mere equity in land is not subject to a writ of execution, yet we are of the opinion that a suit may be brought for the purpose of subjecting property owned by a judgment debtor to the payment of his debt. Chase v. York County Savings Bank, 89 Tex. 316, 36 S.W 406, * * *.'

While the statements quoted from these cases might be characterized as dicta, we feel that great weight must be accorded the interpretation given to the Chase case supra, by these distinguished judges. Accordingly, we hold that the sale under execution was ineffective to transfer the right of Joe Glenney, Jr. to bring suit to set aside on the ground of duress the deed of May 22, 1950. Kinnear v. Tolbert, 262 S.W. 900, Tex.Civ.App., writ dism.

Appellee has suggested that if the right discussed above is not subject to sale under execution, then it is not assignable and therefore appellant has no standing to bring this suit and the judgment of the trial court should be affirmed. This contention is given weight by the statement appearing in Gregg v. First National Bank, 26 S.W.2d 179, 181, Tex.Com.App.:

'He possessed such an interest in the property as might be transferred by assignment, consequently it was subject to sale under execution. (citing authorities)'

In Moser v. Tucker, 87 Tex. 94, 26 S.W. 1044, 1045, the court said: 'it must be conceded that no property or interest in property is subject to sale under execution or like process unless the debtor, if sui juris, has power to pass title to such property or interest in property by his own act.' However, the court stated further:

'It is not, however, every interest in property a debtor may have right to or to acquire that may be subjected to sale under execution or otherwise for payment of his debts, for in many instances his right is so remote and contingent that it is deemed more likely to subserve the ends of justice not so to subject it than to take the risk of sacrifice of contingent right by procedure which will most likely be of no practical...