Maffi v. Stephens

• Decision Date: 24 January 1906
• Parties: MAFFI et al. v. STEPHENS.
• Court: Texas Court of Appeals

93 S.W. 158

MAFFI et al. v. STEPHENS.

Court of Civil Appeals of Texas.

January 24, 1906.

Rehearing Denied February 21, 1906.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by W. B. Stephens, as trustee in bankruptcy of P. G. Maffi, against P. G. Maffi and others. From a decree in favor of plaintiff, defendants appeal. Reversed.

In this case 32 assignments of error are presented and insisted upon by appellants in their brief of 82 pages. From some cause the appellee has failed to file any brief at all, thus leaving it to the court to solve the numerous questions presented without such light as might be cast upon them by his counsel. In performing this duty we will avail ourselves of the opportunity to exercise the discretion given us by rule 40 of this court (67 S. W. xvii), and regard the brief of appellants as a proper presentation of the case, without an examination of the record as contained in the transcript, and will found our decision thereon. The suit was brought on August 22, 1903, by William B. Stephens, trustee of the bankrupt estate of P. G. Maffi, against Josefita M. Maffi and her husband, P. G. Maffi, to cancel and set aside deeds to certain real estate made by Maffi to his wife on January 31, 1903. It was alleged by the plaintiff, as grounds for avoiding the instruments, that the property they purport to convey was community and subject to the grantor's debts, and that the deeds were made by him without consideration for the purpose of defrauding, delaying, and hindering his creditors. The property which was the subject-matter of the conveyance was, upon the application of the plaintiff, seized and placed in the hands of a receiver, to be held by him until the final disposition of the suit. It is still in the possession of the receiver, who has, since its seizure, collected the rents thereof. The defendant, Josefita Maffi, by her second amended original answer, after a general denial, alleged that all the property described in plaintiff's petition, together with the improvements thereon, was bought and entirely paid for out of money belonging to her separate estate; that she turned over the money to her husband, P. G. Maffi, for the purpose of having him invest it in real estate for her, in her name, and for her use and benefit; but that when he purchased the property with it, he caused the title thereto, without her knowledge or consent, to be taken in his own name; that the conveyance sought to be canceled of the property to her by her husband was not made for the purpose of defrauding, hindering, or delaying his creditors, but, at her request, for the purpose of placing the title of the property in her where it legally and rightfully belonged. She also plead that the conveyances were made by P. G. Maffi to her in consideration and payments of debts her husband owed her for money so furnished him by her, and the payment of divers other sums of money received by him from her from time to time belonging to her separate estate over and above the amount expended upon said property, aggregating $2,000. The defendant, P. G. Maffi, in his third amended original answer plead substantially the same matters; and disclaimed all right, title, and interest in the premises. The case was tried before a jury, and the trial resulted in a judgment in favor of plaintiff, divesting defendants of title to the property, and the receiver was ordered to deliver possession to plaintiff, and to pay him all money remaining in his hands.

Keller & Keller, for appellants.

NEILL, J. (after stating the facts).

As we have concluded that the judgment should be reversed on other assignments of error, it will be unnecessary, if not improper, to consider those relating to the sufficiency of the evidence or to say anything more in relation to the evidence, than, that as it appears in the brief before us, it presents issues of fact for the determination of the jury. It appears from appellants' brief that plaintiff was permitted, over defendants' objections, to introduce in evidence a deed from A. Fillman to P. G. Maffi for lot 7, block 30, dated December 28, 1899; the objections being that the instrument had not been filed with the papers in the case, nor notice given as required by law, nor was there an agreement authorizing its introduction. The assignment which complains of this, nor does the proposition under it, or statement subjoined, does not negative the fact that the execution of the deed may have been proved as at common-law before it was offered in evidence. In the absence of such negation, it should be presumed in favor of the ruling of the court that such proof, if requisite to its introduction in evidence, was made. But from the nature of this case, it being one to cancel deeds the custody of which defendants were entitled to and presumed, in the absence of any showing to the contrary, to have, we do not think that the ordinary rules requisite to the introduction of such an instrument obtain. Where the party is bound to know from the nature of the action that he is charged with the possession of the document, and will be required to produce it on trial, notice to him to produce it is unnecessary; and where the party producing it is a party to the instrument or claims under it, the production itself dispenses with any proof of the execution of the instrument. Simonton v. Mayblum, 59 Tex. 9; Elliott on Ev. §§ 1431, 1441; Greenl. Ev. § 561. From aught that appears in appellants' brief, the instrument in question may have been produced upon the trial by themselves; and, if necessary to sustain the ruling of the court, it will be presumed in its favor that it was.

The court over objections of appellant, Mrs. Maffi, permitted the appellee to prove by the witness D. Sullivan that when, in April 1902, P. G. Maffi borrowed $700 from him, Maffi told him that he had 10 or 12 houses in San Antonio, that his wife had money and houses in Mexico, but none here, and that the houses were his own, and his wife had nothing to do with them—the objections being that defendant Josefita M. Maffi, was not present when such declarations were made, and that any statement by her husband in relation to the property during her absence was not, under the pleadings, admissible in evidence against her. It has been seen from our statement of the case, that the issue made by the pleadings was whether the property in controversy was conveyed in fraud of P. G. Maffi's creditors, or whether it was paid for by money of his wife's separate estate and, for that reason, conveyed by him to her for the purpose of vesting her with the legal, as well as the equitable, title, which resulted from its having been purchased with her money. If the latter was the purpose of the conveyance there could have been no fraud in it; for its effect was simply to vest the legal title in the real owner of the premises. A finding of the facts which would create such equitable title, would be a complete negation of such facts as would make the conveyance one in fraud of the rights of Maffi's creditors. For if his wife was really the equitable owner of the premises the husband's creditors would not, ordinarily, have any right to subject it to his debts after notice of such equity, whether he had made the deed sought to be canceled or not. Even had they acquired the...