Greenleve v. Blum

• Decision Date: 13 March 1883
• Docket Number: Case No. 1394.
• Citation: 59 Tex. 124
• Court: Texas Supreme Court
• Parties: GREENLEVE, BLOCK & CO. v. L. & H. BLUM.

59 Tex. 124

GREENLEVE, BLOCK & CO.

v.L. & H. BLUM.

Case No. 1394.

Supreme Court of Texas.

Mar. 13, 1883.

APPEAL from Milam. Tried below before the Hon. W. E. Collard.

Leon & H. Blum brought suit against W. E. Easterwood, and sued out an attachment which was levied on a stock of merchandise amounting to $1,617.66.

Le Gierse & Co. and Greenleve, Block & Co., by L. C. Michael, made claimant's oath and gave bond under the statute to try the right of property.

L. & H. Blum tendered the issue that defendants, Le Gierse & Co. and Greenleve, Block & Co., claimed the goods by transfer from W. E. Easterwood, and that said transfer was made with intent to hinder, delay and defraud the creditors of Easterwood; that defendants knew of this and colluded with Easterwood, and that the goods were subject to the levy.

Defendants alleged that they claimed the goods by a transfer from Mrs. M. H. Newman and from W. E. Easterwood to them; that Easterwood did business in the name of Mrs. M. H. Newman, and plaintiffs knew and acquiesced in this fact; that the transfer was made to pay a pre-existing debt due from Easterwood to defendants of $5,200; that the goods were not worth more than $5,200; that they accepted the transfer in good faith, without any knowledge of or participation in any fraud on the part of Mrs. Newman or Easterwood; that it was absolute, without any reservation or benefit to any one.

The sheriff who made the levy valued the goods at $7,653.19.

Judgment that the property was subject to the levy, and that it was transferred by Easterwood to defendants nominally in satisfaction of the claims of defendants, but in fact that there was a private understanding between Easterwood and the agents of defendants, that the excess in value or proceeds of goods over the debts of defendants should be returned to Easterwood, or that there was a secret trade for the benefit of Easterwood, and to hinder, delay and defraud the other creditors of Easterwood; that the property conveyed was worth $1,000 more than the debts due by Easterwood to defendants; that the transfer was fraudulent and void, and that defendants had notice of the fraudulent nature of the transfer at the time it was made.

Easterwood testified, among other things, as follows: “From all that was said, and while we were there in the store and at the hotel, it was my understanding that if the goods sold by me to Greenleve, Block & Co. and Le Gierse & Co. should be sold for more than the amount that I owed them, then I was to get the surplus; and I also understood that the houses would be willing to allow me to make a settlement with my creditors. Of course, if I had not expected the benefit, I should not have traded with them. There was no price agreed upon that the goods should be taken at. They were to take all the goods for their debts, and if they sold for more than I owed them, it was my understanding that I was to have the surplus; and in a conversation at the hotel, Burchard (the agent who negotiated the settlement and transfer to Le Gierse & Co.) told me that the houses would pay me any surplus that there might be after paying their debts, and I expected them to do it.”

H. D. & F. H. Prendergast, for appellant, cited Banfield v. Whipple, 14 Ala., 13; Gray v. St. John, 35 Ill., 223;Walden v. Murdock, 23 Cal., 551; Young v. Dumas, 39 Ala., 60; Chase v. Walters, 28 Iowa, 460; Bears' Estate, 60 Penn., 430;Crawford v. Austin, 34 Md., 51;Ford v. Williams, 3 B. Mon., 557;Gregory v. Harrington, 33 Vt., 241;Brown v. Smith, 7 B. Mon., 364; Cureton v. Doby, 10 Rich. (S. C.) Eq., 414; Bump on Fraud. Con., 186-188.

McLemore & Campbell, also for appellant, cited, in addition, Wright v. Linn., 16 Tex., 42;Howerton v. Holt, 23 Tex., 59;Baldwin v. Peet, 22 Tex., 716, 717;Hunt v. Butterworth, 21 Tex., 138;Leitah v. Hollister, 4 Comst., 211; Heidenheimer Bros. v. J. D. Braman, MSS. Sup. Ct. Texas, January, 1882; Shirras v. Caig, 7 Cranch, 34.

Scott & Levi, for appellees, cited Moseley v. Gainer, 10 Tex., 395;Edrington v. Rogers, 15 Tex., 188;Hancock v. Horan, 15 Tex., 510;Linn v. Wright, 18 Tex., 318;Humphries v. Freeman, 22 Tex., 45; Garahy v. Bayley & Co., 25 Tex. Sup., 295; Weisiger v. Chisholm, 28 Tex., 780; Weisiger v. Chisholm, 22 Tex., 725; Hughes v. Roper, 42 Tex., 116;Peiser v. Peticolas, 50 Tex., 638;Edmundson v. Silliman, 50 Tex., 106;Van Bibber v. Mathis, 52 Tex., 409;Cox v. Miller, 54 Tex., 27;Van Hook v. Walton, 28 Tex., 59; Twyne's Case, 1 Smith's Lead. Cas.; Bryant v. Kelton, 1 Tex., 419.

STAYTON, ASSOCIATE JUSTICE.

This cause was before this court at the last term and an opinion was given reversing and remanding the cause. A motion for rehearing was filed and granted.

The motion was based upon the grounds:

1st. That the court was in error in regard to the law of the case.

2d. That the evidence in the court below was sufficient to support the finding.

It was contended on the former argument of the cause, as at the present term, that the fact that the appellants were bona fide creditors of Easterwood would not protect them in a purchase of goods to pay their respective debts, unless the facts attending the purchase would have protected a purchaser not a creditor; this proposition was not at the former hearing, and is not now, recognized as the law.

The right of a creditor to receive property from an insolvent debtor in payment of a debt due to him, if the same be openly done, and more property is not taken than is reasonably necessary to pay the debt, although the creditor may know at the time he so receives the property that he will thereby prevent other creditors from enforcing their claims, and although the...