Hoerster v. Wilke

• Decision Date: 07 January 1942
• Docket Number: No. 7772.,7772.
• Citation: 158 S.W.2d 288
• Parties: HOERSTER v. WILKE et al.
• Court: Texas Supreme Court

158 S.W.2d 288

HOERSTER v. WILKE et al.

No. 7772.

Supreme Court of Texas.

January 7, 1942.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Suit by D. J. Hoerster, as receiver for Oscar Krauskopf and William Bierschwale, who formerly as partners operated a private bank under the name of Citizens Bank, at Fredericksburg, Tex., against Ernst Wilke, Sr., on a note and to set aside three allegedly fraudulent conveyances to Emma Wilke and others, wherein Emma Wilke and others filed a cross-action to quiet title. From a judgment in favor of the plaintiff for the amount of the note but denying cancellation of the conveyances, the plaintiff and Ernst Wilke, Sr., appeal to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 140 S.W.2d 952, reversing the trial court's judgment in part and affirming the judgment in part, and remanding the cause for a new trial, the plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Bill Watkins, of Llano, and Agnes Sagebiel and Petsch & Usener, all of Fredericksburg, for plaintiff in error.

J. B. Wieser, of Fredericksburg, and N. T. Stubbs, of Johnson City, for defendants in error.

SHARP, Justice.

This suit was filed by D. J. Hoerster, as receiver for Oscar Krauskopf and William Bierschwale, who formerly as partners had operated a private bank under the name of Citizens Bank, at Fredericksburg, Texas, against Ernst Wilke, Sr., on a note for $3,000, dated January 21, 1931, payable on demand to the bank. The receiver filed such suit on August 7, 1934, solely for the purpose of setting aside three alleged fraudulent conveyances; one a transfer of a $11,900 vendor's lien note to the wife of Ernst Wilke, Sr., made on June 11, 1928, and the other two conveyances were of real estate, made by Ernst Wilke, Sr., to his daughters on May 30, 1930. Ernst Wilke, Sr., among other things, pleaded limitation against the debt.

His wife, Emma Wilke, and the children to whom the conveyances were made, pleaded the three and four-year statutes of limitation, and by cross-action sought to have their titles to the respective properties quieted. The case was submitted to the jury on special issues, and in response to the answers by the jury to the special issues the trial court rendered judgment in favor of Hoerster, as receiver, for the full amount of the debt; but cancellation of the conveyances was denied, and title to the respective properties was quieted in the grantees. Both D. J. Hoerster and Ernst Wilke, Sr., appealed to the Court of Civil Appeals; and the judgment of the trial court, in so far as it rendered judgment in favor of Hoerster, as receiver, against Ernst Wilke, Sr., was affirmed. In all other respects the judgment of the trial court was reversed, and the cause was remanded for a new trial. 140 S.W.2d 952.

Plaintiff in error contends that the Court of Civil Appeals erred in holding that adverse possession of real estate under a fraudulent conveyance for three years established a limitation title under the provisions of Article 5507, Vernon's Annotated Civil Statutes, and that such holding conflicts with the opinions of this and other courts, which hold that Article 5529, Vernon's Annotated Civil Statutes, prescribes the period of limitation for causes of action seeking to set aside conveyances condemned by Articles 3996 and 3997, Vernon's Annotated Civil Statutes, and that Article 5529 becomes operative on the discovery of fraud, or when it would have been discovered by the exercise of reasonable diligence.

The jury found: (a) That Ernst Wilke, Sr., was at the time the debt accrued a member of the partnership business of Sudden Service Garage; (b) that he held himself out to the officers of the bank as such partner; (c) that the officers of the bank believed at the time they extended credit to the Sudden Service Garage that Ernst Wilke, Sr., was a partner; (d) that a reasonably prudent person would have so believed that he was a partner; (e) that prior to the accrual of said debt Ernst Wilke, Sr., promised the officers of the bank that he would be personally responsible for the overdrafts of the Sudden Service Garage; (f) that the...