Hortenstine v. McKlemurry
| Decision Date | 08 March 1968 |
| Docket Number | No. 4218,4218 |
| Parties | Mark HORTENSTINE et al., Appellants, v. Arthur McKLEMURRY, Appellee. . Eastland |
| Court | Texas Court of Appeals |
McCulloch, Ray, Trotti & Hemphill, Ross H . Hemphill, Dallas, for appellants.
Corsbie & Tandy, W. L. Tandy, Waco, for appellee.
Arthur McKlemurry sued Mark Hortenstine and wife, Katherine, and also Henry Hortenstine and Kay-Tex, Inc., in trespass to try title to a one-half interest in realty which, for convenience, will be referred to as the DeVille Apartments. He alleged the common source of the title of all parties was Big D. Apartments, which, on March 8, 1965, executed a deed conveying said property to Henry and Mark Hortenstine. Plaintiff alleged that he would introduce said deed for the purpose of showing common source of title and he attached it to his petition which was filed more than 3 days before the trial. McKlemurry further alleged that on July 19, 1965, McKlemurry obtained a judgment against Mark Hortenstine for $59,110.94; that execution was duly issued and levied and a Sheriff's sale duly held at which McKlemurry bought Mark Hortenstine's interest in said apartments and the Sheriff, on May 3, 1966, executed and delivered a deed conveying Mark's interest to him. He alleged that on March 29, 1966, Henry Hortenstine had purported to convey Mark's interest in said property to a newly formed corporation, to-wit, Kay-Tex, Inc., which was controlled and substantially owned by Henry. Mc-Klemurry sued for the rental value and for title and possession of a one-half interest in the DeVille Apartments. McKlemurry further alleged that four days after he obtained said judgment and while Mark Hortenstine was still the owner of said one-half interest Mark fraudulently executed a deed thereto to his father; that Mark then had no other property in Texas subject to execution sufficient to satisfy said judgment and said deed was executed with intent to delay, hinder and defraud McKlemurry in the collection of his judgment and that said deed was void by virtue of Articles 3996 and 3997, wherefore, he prayed that it be cancelled.
Mark Hortenstine and wife and Henry Hortenstine and Kay-Tex, Inc., pleaded not guilty. They alleged that the Sheriff's sale to McKlemurry was void because Mark had other property in Texas subject to execution sufficient to satisfy McKlemurry's judgment but that Mark was not given an opportunity to select which of his properties was to be sold to satisfy said judgment and further, that the Sheriff's sale of Mark's interest in the DeVille Apartments to McKlemurry for $15,000.00 was for a grossly inadequate consideration . They prayed that McKlemurry take nothing; that the Sheriff's deed to McKlemurry be held void and that the cloud thereby cast upon their title be removed.
A jury found (1) that the deed from Mark to his father was delivered with intent to delay, hinder and defraud McKlemurry in the collection of his judgment; that (5) when Mark executed and delivered the deed to his father Mark was not possessed of other property in Texas subject to execution sufficient to pay his debts and (6) that Mark's interest was not sold by the Sheriff to McKlemurry for a grossly inadequate price. The jury also found that (10) Mark and Henry Hortenstine entered into a conspiracy to hinder, delay and defraud McKlemurry in the collection of his judgment and (11) that McKlemurry was thereby damaged $4,000.00.
The court rendered judgment cancelling the deed executed by Mark and Katherine to Henry Hortenstine on July 23rd, 1965. It found that Mark was and had been continuously since that time the true owner of a one-half interest in the DeVille Apartments and that Mark's interest was conveyed by the Sheriff to McKlemurry and the Sheriff's sale was in compliance with law. The court quieted the title to a one-half interest in McKlemurry and rendered a money judgment against the defendants for $2,533.62. They have appealed.
The appellants contend that the court committed reversible error in admitting plaintiff's exhibits 10 and 12 in evidence to show common source of title because they had not been filed with the papers in the case for three days before the trial, as required by Texas Rules of Civil Procedure, rule 798. Plaintiff's exhibit 10 was a certified copy of the deed executed by Mark and wife on July 23, 1965 to his father purporting to convey Mark's undivided half interest in the property in controversy. Plaintiff's exhibit 12 was a certified copy of Henry Hortenstine's deed purporting to convey that interest to Kay-Tex, Inc. Rule 798 provides that a plaintiff may make proof of common source by...
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Cain v. Roberts, 21052
...with Rule 798 because the purpose of that rule had been satisfied. In this respect, we note that Hortenstine v. McKlemurry, 425 S.W.2d 691 (Tex.Civ.App.--Eastland 1968, writ ref'd n.r.e.), is distinguishable from the present case and is thus not controlling. In Hortenstine the Eastland Cour......