Lewis v. Simon

• Decision Date: 22 January 1889
• Citation: 10 S.W. 554
• Court: Texas Supreme Court
• Parties: LEWIS <I>v.</I> SIMON <I>et al.</I>

10 S.W. 554

LEWISv.

SIMON et al.

Supreme Court of Texas.

January 22, 1889.

Appeal from district court, Washington county.

Trespass to try title by Angelina Simon, joined by her husband, Solomon Simon, against M. Lewis. Defendant appeals.

J. T. Swearingen, for appellant. Bassett, Muse & Muse, for appellees.

GAINES, J.

This suit was brought by appellee Angelina Simon, joined by her husband, to recover of appellant a certain parcel of land described in her petition. On the 16th day of February, 1885, the land in controversy was the property of Solomon Simon, who on that day conveyed it to appellee Angelina, his wife. The consideration expressed is $10, "paid by Angelina Simon, and the further consideration of the love and affection" borne by the grantor to her. The deed was acknowledged and filed for record on the day of its date, and was duly recorded. The defendant claimed title by virtue of a sheriff's sale and deed to him, made under an execution issued from the county court of Galveston county, upon a judgment there rendered in favor of Ullman, Lewis & Co. against Solomon Simon. The judgment established the lien of an attachment which had been formerly issued in the suit, and levied upon the land in controversy as the property of Solomon Simon. The debt upon which the judgment was rendered was an open account contracted on the 29th day of July, 1885, more than five months after the conveyance from Simon to his wife. The appellant defended upon the ground that the deed from Simon to his wife was made with intent to defraud the subsequent, as well as existing, creditors of the grantor, and was therefore void as to Ullman, Lewis & Co., although the debt upon which they obtained judgment was not created until after the deed was made. In order to maintain his defense, the appellant introduced the testimony of but one witness. Presenting this testimony in the light most favorable to defendant, it would have authorized the jury to find that Simon was indebted at the time of the conveyance to his wife in an amount in excess of the value of his assets; that after this time he continued his regular business, and also engaged in the purchase of mules or other speculations upon an extensive scale for a man of his means; and that within 10 months after the deed to his wife he failed, being indebted to a large amount. The witness knew but little of the details of Simon's business, and the conclusions thus stated are the limits of the inferences which the jury could have legitimately drawn from his evidence.

The appellee, the plaintiff below, having introduced her deed, and the defendant having introduced evidence of the attachment proceedings, judgment, execution, and sheriff's deed, under which he claimed, and such being the parol evidence adduced to establish the fraud, the court instructed the jury to find for the plaintiff. This instruction is assigned as error.

Article 2466 of the Revised Statutes is as follows: "Every gift, conveyance, assignment, transfer, or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this state subject to execution sufficient to pay his existing debts; but such gift, conveyance, assignment, transfer, or charge shall not, on that account, merely be void as to subsequent creditors, and though it be decreed...