Jackson v. Downs

• Decision Date: 20 June 1912
• Citation: 149 S.W. 286
• Parties: JACKSON v. DOWNS et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

149 S.W. 286

JACKSON v. DOWNS et al.^†

Court of Civil Appeals of Texas. Texarkana.

June 20, 1912.

Appeal from Upshur County Court; W. A. Phillips, Judge.

Action by M. F. Downs and another against C. E. Smith, in which a writ of attachment was levied on property claimed by W. T. Jackson. From a judgment for plaintiffs, claimant appeals. Reversed and rendered.

See, also, 149 S. W. 288.

Warren & Briggs, of Gilmer, for appellant. M. B. Briggs and Maberry & Maberry, both of Gilmer, for appellees.

WILLSON, C. J.

C. E. Smith owned, and under the name "C. E. Smith Lumber Company" operated, a sawmill in Upshur county. He engaged appellees to haul logs to his mill, agreeing to pay them $1.50 to $4.50 per 1,000 feet, according to the distance they might be required to haul the logs. Under the terms of this contract, Smith became indebted to appellees in the sum of $364.21. By a suit commenced May 3, 1910, appellees sought a recovery against Smith of that sum. At the same time, on the ground that Smith was about to dispose of his property with intent to defraud his creditors, appellees sued out a writ of attachment and had same levied on 80,000 feet of rough lumber, valued at $400, as property belonging to Smith. At the time the writ was levied appellant was in possession of the lumber and claimed to own it. Afterwards, as authorized by the statute (Sayles' Statutes, arts. 5286-5312), appellant filed a claimant's oath and bond as a basis for trying the right of property in the lumber. Appellees' contention was that the lumber belonged to Smith at the date of the levy of the writ of attachment. Appellant's contention was that the lumber then belonged to him. A further contention on the part of appellees was that, if appellant then owned the lumber, he owned it subject to a laborer's lien acquired by them against it at a time when Smith owned it. The trial judge found against appellant's claim, and rendered a judgment against him and the sureties on his claim bond in favor of appellees for the sum due them by Smith.

It appeared from written instruments forming a part of the testimony that Smith purchased the sawmill of appellant December 31, 1909, agreeing thereafterwards to pay appellant $4,000 for same, and that, having failed to pay the $4,000, he on April 25, 1910, conveyed the mill and the lumber in controversy to appellant in satisfaction of the debt. There was no testimony to the contrary of that furnished by the written instruments as stated. Obviously, therefore, it appeared that at the time the writ of attachment was levied the lumber belonged to appellant. Appellees seem to have been of the opinion that the conveyance from Smith to appellant was void as to them, because it appeared that at the time it was made Smith was insolvent and that appellant knew him to be so. If the value of the property reasonably was not more than sufficient for the purpose (and there was no testimony showing it to have been more than sufficient), Smith, though insolvent, had a right to convey it to appellant in satisfaction of the debt, and the mere...