Hamilton-Brown Shoe Co. v. Lastinger

• Citation: 26 S.W. 924
• Parties: HAMILTON-BROWN SHOE CO. v. LASTINGER.
• Decision Date: 06 June 1894
• Court: Court of Appeals of Texas

26 S.W. 924

HAMILTON-BROWN SHOE CO. v. LASTINGER.

Court of Civil Appeals of Texas.

June 6, 1894.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by the Hamilton-Brown Shoe Company against W. H. Lastinger. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action for the trial of the right of property. On October 3, 1891, an execution for $482.60 issued out of the county court of Dallas county against W. C. Gillespie, in favor of appellant, to the sheriff of McLennan county, which, on the 7th of October, 1891, was levied on goods valued by the sheriff at $703.90, in possession of W. H. Lastinger, the appellee, who claimed the same under the statute by virtue of a deed of trust executed by W. C. Gillespie, of date the 3d day of October, 1891. The deed of trust assigns the goods levied on, with other goods and merchandise, to Lastinger, in trust to pay certain debts in part incurred by a mercantile business conducted in Waco, Tex., in the name of L. A. Gillespie, wife of W. C. Gillespie. The other debts secured by the trust deed were one to Scarborough & Rogers for $50, and one acknowledged to be due by W. C. Gillespie to his wife for $1,350.61. One of the issues tendered by plaintiff was that the trust deed was made to defraud creditors of W. C. Gillespie, because the debts secured were fictitious. Defendant joined in the issues. The case was tried by the court, and judgment was rendered on December 29, 1892, in favor of defendant, from which plaintiff has appealed.

Robertson & Davis, for appellant. Scarborough & Rogers, for appellee.

COLLARD, J.

Appellant insists that the court erred in holding that the debt to Mrs. L. A. Gillespie was a valid debt upon consideration deemed valuable in law. It is necessary to examine the facts of the case to ascertain how far this assignment is correct. The deed of trust was made under the following circumstances: W. C. Gillespie was in business in Dallas, Tex., and failed, owing, among other creditors, his wife the sum of $1,200; and to secure his creditors he made a deed of trust. Mrs. Gillespie took her debt in goods from the trustee, worth about $1,200. Gillespie and wife moved to Waco, Tex., and, early in 1890, Mrs. Gillespie commenced business in Waco in her own name, with the goods received by her in payment of her debt. She also bought out a stock of goods in Waco, worth about $1,500, paying $1,000 for the same out of her own separate estate, obtaining credit for the balance. She also put into the store $150, money belonging to her separate estate. The balance due on the stock purchased was paid for out of proceeds of sale of goods in regular course of trade. She bought goods, from time to time, to replenish the stock, paying for goods bought as long as she could, until the execution of the deed of trust, when it was found that the business had lost money, had run down, and could not be longer carried on. The family of Gillespie and wife lived on the proceeds of sales of the goods, and all expenses were paid from the same source, — both business and household expenses. At the time of the execution of the trust deed — October 3, 1891 — the goods on hand inventoried about $3,000. W. C. Gillespie managed the business for his wife. He owed debts when he came to Waco, and owes them yet; has no property, and is insolvent. Mrs. Gillespie owns four lots in Waco, the value of which is not stated.

The foregoing facts are almost the verbatim statements of W. C. Gillespie, witness for defendant, and we believe they show the true status of the business, and the relations of the parties to it. These facts show that Mrs. Gillespie embarked a part of her separate estate in the mercantile business in Waco under the management of her husband, and that the business failed, when her husband made the deed of trust, preferring creditors, but not plaintiff. The deed of trust recites: "That whereas, on the ____ day of July, 1890, I, W. C. Gillespie, began business in the city of Waco, McLennan county, Texas, with a stock of boots and shoes that was the separate property of my wife, L. A. Gillespie, of the value of $1,200, which stock was shortly thereafter increased by the purchase of additional goods with the separate property [money] of my said wife, her separate money used in buying said additional stock amounting to $150.61, which business has up to this date been carried on in the name of my said wife, L. A. Gillespie, and the conduct of which business has always been under my management and control, it has been necessary from time to time to create certain debts and incur certain liabilities by buying goods on credit to replenish the stock, which was my wife's separate property, which liabilities are community debts of myself and my said wife. And whereas, on this day and date I have found myself and said business burdened with community debts which I cannot at this time...