Howard v. Parks

• Citation: 21 S.W. 269
• Parties: HOWARD et al. v. PARKS.
• Decision Date: 13 December 1892
• Court: Court of Appeals of Texas

21 S.W. 269

HOWARD et al. v. PARKS.

Court of Civil Appeals of Texas.

December 13, 1892.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by W. C. Howard & Co. against W. F. Bachman in attachment. O. F. Parks interposed a claim for the property. From a judgment for Parks, plaintiffs appeal. Reversed.

Tillman Smith, for appellants. Crane & Ramsey, for appellee.

HEAD, J.

This is a suit under the statute for the trial of the right of property in certain machinery and live stock, which were owned by one W. F. Bachman, and transferred by him to one O. F. Parks. A short time after this transfer, appellants, W. C. Howard & Co., sued out a writ of attachment against Bachman, and had the same levied upon the property transferred to Parks as aforesaid. Parks filed his claimant's bond, as required by law, with I. L. Dunn and C. A. Arnold as sureties, which bond was dated April 14, 1885. In the issues between the parties in the suit for the trial of the right of property arises the question as to whether or not the transfer from Bachman to Parks was in fraud of the creditors of the former. It seems that Bachman and Parks were in partnership, and Parks claimed that a large amount of money he had furnished to be used in the partnership business had been fraudulently appropriated by Bachman to his own use, and to the payment of his individual debts, without having been applied to the partnership business; and that when he learned this he had a settlement with said Bachman, in which the latter was found to be indebted to him for the money so misapplied in the sum of $5,400, and the transfer of the property in controversy was made in consideration of a credit upon this indebtedness to an amount more than the full value thereof. Appellants' contention was that the transfer from Bachman to Parks was only colorable, to enable the latter to hold the property from creditors of the former, who at that time was alleged to be insolvent, and that the pretended consideration from Parks to Bachman was much less than the value of the property; also that the pretended transfer from Bachman to Parks was fictitious and fraudulent, and, if any indebtedness existed at all, it could only be ascertained by a settlement of the partnership business, which had not been had. The evidence upon the issue of fraud thus raised was very conflicting, and a verdict for either party thereon would be well sustained. In September after the transfer from Bachman to Parks in April the latter instituted suit to recover of the former the $5,400 indebtedness alleged to be due him as above set forth, and in this suit he gave Bachman credit for the consideration he was to pay for the property in controversy under the transfer thereof to him; and on the trial of the suit between appellants and appellee for the trial of the right of property Parks was permitted, over the objection of appellants, to introduce in evidence his own petition in his suit against Bachman, above set forth, with a lengthy exhibit thereto attached, showing the state of accounts between them, and the recital of a credit given to Parks for this property upon said account, for the purpose of rebutting the charge of collusion alleged by appellants to exist between said Parks and Bachman, resulting in such transfer. The explanation made by the court below for admitting this evidence is indorsed on the bill of exceptions as follows: "Approved with the explanation that the same [referring to the petition and exhibits aforesaid] were offered to rebut the presumption of collusion charged to exist between defendant and Bachman, and was supplemented by the evidence of D. T. Bledsoe, a reputable lawyer, to the effect that Bachman was represented by him, and that the issues in said case were contested by him, and also to show that defendant had credited his demand with $2,000, the amount of his several purchases." That the admission of this evidence was error, we think perfectly clear from the reasons given by the learned judge for its admission. We do not understand how, as against appellants, defendant could rebut this charge of collusion by any statement he might make in the petition filed by him against Bachman, and in which appellants were in no wise parties; and especially could this not be done after appellants had attached this property, and appellee had filed his claim bond, and the issue of fraud and collusion was thus being litigated. The evidence was clearly inadmissible, and will necessitate a reversal of the case.

In their second amended tender of issues appellants alleged that the indebtedness from Bachman to them was evidenced by 12 certain promissory notes for $100 each, in each of which a lien was reserved upon part of the machinery in controversy, to secure its payment; and that these notes were merged into a judgment rendered in the suit in which the attachment under which the levy in this case was made was issued. They also alleged the insolvency of Bachman, and prayed that the issue thus raised as to the validity of this lien be litigated in this proceeding and foreclosed, and, if the court found it necessary, that Bachman be made a party for this purpose. Appellee filed a special exception to this part of appellants' issues, to the effect that this alleged lien could not be litigated in this proceeding, and the court sustained this exception, and a majority of the court are of opinion that this was error, believing that under the peculiar facts of this case appellants should have been permitted to foreclose their lien, if valid, on that portion of the property in controversy upon which it might have been shown to exist. As he had already obtained a judgment against Bachman, who was alleged to be insolvent, for the debt secured by the lien, which judgment they think may be inferred from the pleading to be still in force, and not dormant, and, as Bachman had conveyed all his interest in the property to Parks, they do not believe it necessary for him to be made a party to the suit for foreclosure; and, as the parties, therefore, were all before the court, and the property in the custody of the law, under Rev. St. art. 4823, they do not believe there is any feature...