Appeal from district court, Taylor county; T. H. Conner, Judge.
Appellants caused writs of attachment to be issued against J. T. Melton and levied upon certain personal property in the actual possession of appellee W. B. Atchison. Atchison instituted this statutory proceeding for the trial of the rights of property. The levy was not made by giving notice to Atchison, but by actual seizure by the sheriff, who took the property from Atchison's possession.
The trial court filed the following conclusions of fact and law: "(1) That on November 28, 1891, J. T. Melton executed and delivered to W. B. Atchison the deed of trust described in defendant's answer, and that said trustee immediately accepted the same, and took possession of goods therein described. (2) The following named debts mentioned in said mortgage covering the goods in controversy were fictitious and fraudulent, to wit: S. V. Sands, $530; C. E. Sands, $530. That the following were valid subsisting debts: Hamilton, $1,000; W. B. Atchison, $250; J. T. Sands, $1,400; and M. E. Sands, $540,— there being no proof that Hamilton, Atchison, J. T. Sands, and M. E. Sands had knowledge of the fictitious character of the two debts first named. (3) The beneficiary Hamilton is not shown to have ever accepted under said mortgage, and, if he did accept, it was after the three several attachments of plaintiffs had been run. (4) The evidence is silent as to whether the defendant Atchison knew of or participated in any fraud of J. T. Melton in the execution of said mortgage, he not having been called to testify as a witness. J. T. and O. C. Melton testified that J. T. Melton owed said Atchison $250 at time of execution of said mortgage, evidenced by a note or duebill, and there was no other evidence as to the genuineness of said debt. (5) That plaintiffs sued out and caused to be levied writs of attachment as hereinafter named, and Atchison made claimant's affidavit and bond under the statute, with J. A. Rushing, J. G. Mitchell, and A. M. Robertson as sureties. (6) Said goods were of the value of $3,821.46 at the date of the levy of said attachments, and, after the claimant's bond was filed, said goods were sold and disposed of in bulk and at retail to various parties, and it is now altogether impossible that they, or any part of them, can be returned in their original condition. (7) J. T. Melton was and is indebted to the respective plaintiffs in the several amounts claimed by them, as follows: To Jos. Linz & Bro., $814.57, and 6 per cent. interest from 22d March, 1892; to Geo. Walshe & Co., $611.65, and 6 per cent. interest from 2d February, 1892; to Simpson, Porter & Co., $822.62, and 6 per cent. interest from 22d March, 1892; besides costs of suit, Linz & Bro., $51.40, Walshe & Co., $12.20, and Simpson, Porter & Co., $12.40. And on the 28th day of November, 1891, said Linz & Bro. sued out and levied attachment on said goods, wares, and merchandise for the said debt, interest, etc., and on the 29th day of November, 1891, said writs of the other plaintiffs were respectively levied. (8) That immediately upon the execution of the trust deed in question the trustee, Atchison, took actual possession of the goods in question, and said deed of trust was duly filed and recorded as a chattel mortgage prior to the levy of the several attachments of the plaintiffs herein; Atchison being in possession at the time of such levies. (9) That the main intent and motive in J. T. Melton in the execution of the trust deed in question was to secure the debts and parties therein named, and that such deed was not fraudulent and void, unless the fact that he included fictitious debts made it so. And the court concludes, as matter of law, that the fact that J. T. Melton included as among the debts attempted to be preferred the said fictitious debts of said two Sands children would and did not have the effect of wholly avoiding the deed; but, on the contrary, to the extent of said valid debts the deed was good, and Atchison's possession lawful; and that the creditors' remedy was to garnishee Atchison, or to attach by giving notice to Atchison, as provided by law. To the extent of the fictitious debts, the court finds that J. T. Melton's intent was fraudulent and with intent to hinder and delay his creditors, and this intention...
