Lehmberg v. Biberstein

• Decision Date: 01 January 1879
• Parties: CARL LEHMBERG ET AL. v. A. BIBERSTEIN.
• Court: Texas Supreme Court

51 Tex. 457

CARL LEHMBERG ET AL.

v.A. BIBERSTEIN.

Supreme Court of Texas.

1879.

APPEAL from Llano. Tried below before the Hon. W. A. Blackburn.

A. Biberstein, plaintiff below, who was a creditor of and obtained a judgment against the defendant Carl Lehmberg, and had, upon levy and sale under execution of certain lands as the property of defendant, become the purchaser of the same, brought this suit in Llano county, where the defendants lived, to cancel and set aside certain deeds of conveyance of the lands, which were situated in San Saba county. The deeds of conveyance (one from Lehmberg to Pryor, dated October 21, 1875, and one from Pryor, and made at the instance of Lehmberg to his minor children, dated May 14, 1876) were voluntary, and plaintiff alleged they were made, when Lehmberg was in failing circumstances, for the purpose of hindering, delaying, and defrauding his creditors; the prayer for relief being for decree of court to cancel and set aside the deeds of conveyance.

The defendants (except one Haskins, who was a tenant and disclaimed any interest) demurred to plaintiff's petition, answered by general denial, and claimed that the deeds of conveyance were made in good faith, &c.

On the trial, the court overruled defendants' demurrers to plaintiff's petition. The jury found for the plaintiff, and judgment was rendered in accordance with the prayer in the petition; from which judgment the defendants appealed.

The court, among other charges, gave the following, viz.: “The question which you are to try and determine is, whether or not he, Charles Lehmberg, was in failing circumstances at the time said conveyance was made. * * * If said conveyance was made to said minors for the purpose of hindering, delaying, or defrauding his creditors, you will find for the plaintiff.”

It was proved that the conveyance from Carl Lehmberg to I. S. Pryor was by deed made October 21, 1875, (filed for record same day,) and the deed from Pryor to F. Carl and C. F. Alfred (Lehmberg's minor children) was made May 14, 1876. It was admitted on the trial that the judgment in favor of appellee in Llano county District Court, under which appellee claimed title, was rendered on a draft dated July 24, 1876, a note dated July 4, 1876, and another note dated June 21, 1876. The evidence of several witnesses was to the effect, that at the date of the conveyance by Pryor to the minor children Carl Lehmberg was solvent and his financial standing good. About this, however, there was some conflict of evidence.

The first and second clauses of the instructions asked by defendant below (Lehmberg) and refused, were as follows, viz.: “A fraudulent deed can only be attacked (1) by a previous creditor--that is, one who had a valid claim against the party making the fraudulent deed prior to the making of such deed; (2) by a party who becomes a creditor subsequent to the making of the fraudulent deed, but who has no notice, either actual or constructive, that such a deed has been made.”

The refusal to give this charge was assigned as error. The pleadings and evidence are quite voluminous, but the above instruction, with the opinion, presents the case as decided, except as to the pleadings and other rulings of the court below not noticed, and which involved nothing which has not been before decided.

A. O. Cooley and James H. Burts, for appellants.

I. Appellee was not entitled to attack the deed from Carl Lehmberg to I. S. Pryor dated October 21, 1875, and deed from Pryor to minors dated May 14, 1876, (of which notice was brought home to him by records of proper county,) without predicate showing that the claims on which the judgment through which he claimed was obtained, were contracted and due prior to date of said deeds. (Kerr v. Hutchins, 46 Tex., 389;McCulloch v. Renn, 28 Tex., 793;Martel v. Somers, 26 Tex., 559, 560.)

The consideration and good faith of conveyance from Pryor to minors dated May 4, 1876, could not--he not being a party to this suit--be impeached herein.

II. To render a conveyance of real estate obnoxious and liable to cancellation for fraud, it must be shown that the party seeking to cancel the same was, at the time it was made, in a position, relative to the parties thereto, to be injured thereby.

Appellee asked the court to charge the jury, in substance, that to find for plaintiff they must find that at the time Carl Lehmberg conveyed to Pryor he was insolvent or in failing circumstances, and that the conveyance was made to defraud plaintiff; that he was a creditor, or became so, or a purchaser without notice, actual or constructive, of the property; that a fraudulent deed could only be attacked by a previous creditor of the party making it, or a subsequent creditor without notice; that by “actual notice” is meant, that a party knows or could ascertain by ordinary...