Ibanez v. State

• Decision Date: 02 June 1938
• Docket Number: No. 3690.,3690.
• Citation: 118 S.W.2d 405
• Parties: IBANEZ et ux. v. STATE.
• Court: Texas Court of Appeals

118 S.W.2d 405

IBANEZ et ux. v. STATE.

No. 3690.

Court of Civil Appeals of Texas. El Paso.

June 2, 1938.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Suit by the State against Desiderio lbanez, its judgment debtor, and wife, to set aside a fraudulent conveyance of realty, and to foreclose a judgment lien against the realty. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

W. H. Fryer and Coyne Milstead, both of El Paso, for appellants.

Roy D. Jackson, Dist. Atty., and Theodore Andress, both of El Paso, for the State.

NEALON, Chief Justice.

The State of Texas, acting through its District Attorney of the Thirty-fourth Judicial District, filed this suit against appellants Desiderio Ibanez and wife, Maria Kaliski de Ibanez, alleging that the husband, on or about February 1, 1936, had conveyed to the wife certain described real estate in El Paso County for a recited consideration of $900 and the assumption of $1200 in notes secured by a lien on the land and the further assumption of the accrued and unpaid taxes. The deed was filed for record in the office of the County Clerk of El Paso County on February 3, 1936, and thereafter duly recorded. Appellee alleged that the conveyance was made by the husband with the intent to hinder and defraud his creditors, including appellee; that the husband did not at the time possess other property within the State of Texas subject to execution sufficient to pay his debts and obligations; that no consideration was paid the husband out of the personal and separate funds of the wife for the conveyance. Appellee prayed that it have judgment against defendants setting aside and holding for naught said conveyance and decreeing the property to be the community property of the defendants, foreclosing appellee's judgment lien against the property, and for general and special relief, legal and equitable.

Defendants answered with plea of general denial; and Maria Kaliski de Ibanez answered specially that the property was her sole and separate property; that she acquired it on May 17, 1935, by conveyance from Esther Garcia and husband by deed which was filed for record May 29, 1935, and that said property had never been the community property of appellants. She prayed that the property be adjudged to be her sole and separate property, and that her title thereto be quieted and the cloud created by plaintiff's lien be removed.

The case was tried to a jury, which, in response to special issues, found that the cash payment made upon the real estate at the time it was purchased had not been given to the wife; that the husband deeded the property to his wife on February 1, 1936, with the intention and desire to place it beyond the reach of his creditors; that the wife accepted the conveyance with knowledge of the husband's intention and desire; that at the time of the purchase of the property on May 17, 1935, it was not the intention of the husband and wife that the husband "should have or own no interest in such property." Judgment was entered in favor of the State, and this appeal is taken from said judgment.

From the evidence it appears that Desiderio Ibanez, together with Amador Espinosa and Alejandro Gomez, was indicted by the Grand Jury of El Paso County, Texas, on September 27, 1935, for the offense of kidnapping, a felony; that capias issued, and that on the same day the said appellant executed and delivered to the sheriff of El Paso County, Texas, his bail bond in the sum of One Thousand Dollars; that Desiderio Ibanez and his codefendants executed and filed in the trial court their motion for severance and agreement as to order of trial; that the codefendant Gomez went first to trial and was convicted on November 8, 1935, and his sentence was fixed by the jury at ten years; that the codefendant Espinosa went next to trial and was convicted on December 17, 1935, and his punishment was fixed by the jury at a fine of One Thousand Dollars. Appellant, Desiderio Ibanez' trial was first set for December 18, 1935, and upon his failure to appear for trial the first judgment nisi was taken on December 18, 1935. This was dismissed on the State's motion on May 22, 1936. The trial of appellant Desiderio Ibanez was again set for May 25, 1936, and upon his failure again to appear for trial another judgment nisi was taken on May 25, 1936. Final judgment was rendered September 22, 1936, forfeiting said bail bond as against the appellant Ibanez and his sureties.

The property in question was conveyed by Esther Rodriguez de Garcia and husband to Maria Kaliski de Ibanez by deed dated May 16, 1935. The deed was acknowledged May 17, 1935, filed for record May 29, 1935, and recorded June 6, 1935. It did not recite that any part of the consideration was paid or to be paid out of the separate property of the grantee, or that it was conveyed to her as her separate estate. By deed dated February 1, 1936, and purporting to be executed at Juarez, Chihuahua, Mexico, filed for record in the office of the County Clerk February 3, 1936, and duly recorded February 15, 1936, Desiderio Ibanez conveyed the property to his wife one of appellants herein.

Any other statements of facts necessary to an understanding of the issues will be contained in the opinion upon the issues raised on appeal.

Opinion.

No contention is made in the brief filed by appellants that the wife paid any consideration to the husband for the conveyance from him to her. Therefore, as the husband's obligation to the State existed prior to the execution and delivery of the deed, and it was not shown that he had any other property in the State sufficient to satisfy the State's claim, the conveyance was void as to appellee insofar as it attempted to convey any interest belonging to the husband. Revised Statutes, Art. 3997; First National Bank of Ft. Worth v. John Hancock Mutual Life Ins. Co., Tex.Civ.App., 101 S.W.2d 1062; O'Banion, Sheriff, v. Henry, 128 Tex. 59, 96 S.W.2d 233; Hartman v. Hartman, Tex.Civ.App., 32 S.W.2d 233; Kelley v. Stubblefield, Tex.Civ.App., 26 S.W.2d 281; Guaranty B. & L. Co. v. Keller, Tex.Civ. App., 104 S.W.2d 889, and cases cited.

From what has been said it follows that any right of the wife to prevail must depend upon the status attaching to the property at the time of the deed from Garcia. There was sufficient evidence to call for a submission of this issue to the jury. She contends upon this appeal that it was not properly submitted and that the manner of submission did not present to the jury fairly her theory as to her rights. One of her contentions is that, irrespective of the source of the original cash payment, the property became her separate estate because her husband directed the deed to be made to her for the purpose of giving the land that character and the deed was taken in her name to effect that purpose. She relies upon the holding of this Court in Armstrong v. Turbeville, 216 S.W. 1101, which is undoubtedly a correct...