Markward v. Murrah

• Decision Date: 03 December 1941
• Docket Number: No. 7725.,No. 7726.,No. 7724.,7724.,7725.,7726.
• Citation: 156 S.W.2d 971
• Parties: MARKWARD et al. v. MURRAH et al. CLARK et al. v. SAME. MARKWARD v. SAME.
• Court: Texas Supreme Court

156 S.W.2d 971

MARKWARD et al.

v.

MURRAH et al. CLARK et al. v. SAME MARKWARD v. SAME.

No. 7724.

No. 7725.

No. 7726.

Supreme Court of Texas.

December 3, 1941.

Error to Court of Civil Appeals of the Fourth Supreme Judicial District; Val Verde County.

Suit, listed as cause No. 7725, by L. H. Clark and others against Mrs. Fannie Murrah and others, and suit listed as cause No. 7726, by Mrs. Eula Markward, independent executrix, against Mrs. Fannie Murrah and others, to set aside a conveyance on the ground the conveyance was made to defraud creditors. Proceeding in the matter of the estate of J. R. Murrah, deceased, listed as cause No. 7724, wherein Mrs. Fannie Murrah and others objected to the approval of claim filed by Mrs. Eula Markward, independent executrix, and another. The judgment of the District Court in each of the three cases was affirmed by the Court of Civil Appeals, 136 S.W.2d 649, 652, 656, and Mrs. Eula Markward, independent executrix and L. H. Clark and others bring error.

Judgments of District Court and Court of Civil Appeals in cause No. 7724 affirmed, and judgments of District Court and Court of Civil Appeals in cause No. 7725, and cause No. 7726 reversed and causes remanded for new trial.

John L. Dodson, of Del Rio, for plaintiffs in error.

Wallace & Thurmond and Boggess, LaCrosse & Lowrey, all of Del Rio, for defendants in error.

ALEXANDER, Chief Justice.

The three above-styled and numbered causes involve the right of the creditors of J. R. Murrah, deceased, to set aside a sale of land and other property on the ground that same was made to defraud creditors. The material question to be determined is whether the claims of the creditors were barred by limitation. We believe that all three cases can be satisfactorily disposed of by a single opinion.

According to the allegations of the petitions, Mrs. L. H. Clark and her associates held a note against J. R. Murrah due August 8, 1932, and C. A. Markward (represented herein by Mrs. Eula Markward, his wife, as executrix) held a note against Murrah due August 11, 1932. On February 3, 1934, J. R. Murrah and his wife, for a recited consideration of $10, conveyed to their four children, J. E. Murrah, R. H. Murrah, Dan Murrah, and Tol Murrah, all of their property, including 7,462 acres of land and various other property. J. R. Murrah died intestate on February 13, 1934, and no administration was taken out on his estate at that time. On December 17, 1936, Mrs. Clark and her associates sued the grantees in said deed, together with Fannie Murrah, the widow of J. R. Murrah, to set aside said conveyance on the ground that same had been made in fraud of the rights of creditors, and to have said property sold and the proceeds thereof applied to the satisfaction of said debt. That suit is cause No. 7725 listed above, and will hereinafter be referred to as the Clark case. On the same day Mrs. Markward, as executrix of the estate of her deceased husband, filed a similar suit against the same parties. That suit is cause No. 7726 listed above, and will hereinafter be referred to as the Markward case. The petitions in each of said causes alleged that J. R. Murrah had died intestate, without leaving any property; that his estate was wholly insolvent; and that there had been no administration on his estate, and no necessity therefor. When the two suits came on for trial, the trial court sustained a general demurrer in each case on the ground that it was not alleged that the claim had been presented to the administrator of Murrah's estate for allowance and payment. Thereupon, said creditors, the plaintiffs in the two suits, caused an administration to be taken out on the estate of J. R. Murrah, deceased, in the probate court, and after considerable delay, the details of which need not here be set out, on the 23rd day of June, 1938, presented their claims, as evidenced by the notes herein sued on, to the administrator. The administrator allowed the claims, but declined to pay same because the estate had no assets. The probate court on the 25th day of July, 1938, declined to approve said claims on the ground that they were barred by limitation at the time they were so presented to that court. On appeal to the district court a similar order was entered. That suit is cause No. 7724 listed above, and will hereinafter be referred to as the probate case. The plaintiffs in the Clark case and in the Markward case then amended their petitions in the district court, making the administrator of Murrah's estate a party defendant in each of said suits, and alleged that on the 23rd day of June, 1938, they had presented their claims to the administrator of the estate of J. R. Murrah, deceased, and that payment thereof had been rejected by the probate court, on the ground that said claims were barred by limitation. It was also alleged that the grantees named in said conveyances, Mrs. Fannie Murrah, and three daughters of J. R. Murrah, deceased, all of whom were named as defendants, constituted the heirs and only heirs at law of the deceased J. R. Murrah. Upon presentation of said amended petitions the district court again sustained a general demurrer in each case, and upon plaintiffs' failure to amend, dismissed the suits. The judgment of the trial court in each of the three cases was affirmed by the Court of Civil Appeals. 136 S.W.2d 649, 652, and 656.

Under the provisions of Article 5527 of the Revised Statutes a suit on a written contract is barred by limitation in four years after the cause of action accrues, but under the provisions of Article 5538 of the Revised Statutes in case of the death...