Martel v. Somers

• Decision Date: 01 January 1863
• Citation: 26 Tex. 551
• Parties: HENRY MARTEL AND OTHERS v. CHARLOTTE SOMERS.
• Court: Texas Supreme Court

26 Tex. 551

HENRY MARTEL AND OTHERS

v.CHARLOTTE SOMERS.

Supreme Court of Texas.

1863.

Where suit is brought in the name of a nominal plaintiff for the use of another person, the real plaintiff, the substitution by amendment of the name of such other person as the sole plaintiff does not make a new party to the cause in a proper sense. The case of Price v. Wiley, 19 Tex. 142, cited and approved on this point.

Admissions of a judgment debtor, who is co-defendant with his vendees in a suit to subject to the judgment property sold by him, are admissible in evidence, if made while he was in possession of the property, to prove ownership of the judgment by the plaintiff and that his own conveyance of the property was fraudulent.

The conveyance of his homestead by a debtor cannot be deemed to be in fraud of his creditors, inasmuch as it is not liable to be taken in execution or to forced sale for the payment of debts. The case of Wood v. Chambers, 20 Tex. 247, cited and approved on this point.

With regard to the question as to what constitutes notice of fraud in a conveyance, while it is settled that vague and general assertions, resting on mere hearsay and made by strangers in authority and interest, may be disregarded, and will not bind the conscience of the purchaser or affect his legal or equitable rights, even when true in point of fact, yet, a direct statement to a purchaser of the existence and nature of an adverse claim or title will operate as notice whether it be made by or on behalf of the holder of the adverse title or by a mere stranger.

See this case upon the subject of notice in general--from whom it may proceed;--and as to information sufficient to put a party upon inquiry so as to be equivalent to notice.

It seems that a fact may acquire such notoriety as to constitute notice, or to put a a party upon inquiry equivalent thereto; but an authoritative decision on this point is reserved.

It is a principle of universal application that the statutes of limitation do not begin to run until the cause of action accrues.

In a suit to subject to the satisfaction of a judgment which had been appealed to this court, certain property which had been sold by the judgment debtor in fraud of his creditors, the cause of action did not accrue until the final disposition of the appeal in this court; and until then, the statute of limitations did not begin to run against the plaintiff.

Where a judgment creditor sues for the purpose of setting aside the legal title to property and of subjecting the property to the judgment, upon the ground tha?? the title was conveyed by the debtor in fraud of his creditors, in which suit the plaintiff assumes the burden of proof, it is not incumbent on the defendants claiming the property under such title to prove payment by them of the purchase money mentioned in their deeds.

APPEAL from Fayette. Tried below before the Hon. James H. Bell.

This suit was originally instituted on the 19th of April, 1856, by Rudolph Brock and Rica Hernshein as administrators of Joseph Hernshein, deceased, for the use of Charlotte Somers, the appellee, against Henry Martel, James T. Patton, administrator, and Charles Martel, infant heir of Frederick Martel, deceased, William G. Webb, John T. Harcourt and A. R. Jones, defendants.

On the 17th of March, 1849, the said J. Hernshein recovered a judgment in the district court of Fayette county against Henry Martel for the sum of $2,948, besides costs of suit. Martel appealed the judgment to the supreme court, in which there was judgment of affirmance at the December term, 1849. But at the December term, 1852, of the supreme court, the judgment of affirmance was vacated for the reason that it was rendered after the death of Hernshein, the appellee. At the November term, 1855, of the supreme court, the appeal was finally dismissed for the reason that the appellant had not caused the representative of Hernshein to be made a party defendant to the appeal.

The present suit was instituted to subject to this judgment certain land in Fayette county conveyed by Henry Martel in 1847, after the institution of said suit but before the rendition of the judgment, to his brother Frederick Martel, and which land was sold under order of the county court by Patton as administrator of Frederick Martel, on the first Tuesday in January, 1854, when the defendants Webb and Harcourt became the purchasers, who a few months afterwards sold to the defendant Jones, who was in possession at the institution of this suit.

The petition alleged fraud in the conveyance by Henry Martel to his brother Frederick, and charged notice thereof upon all the other defendants. The pleadings on both sides were multifarious and complicated, but, in view of the opinion, it is not necessary to specify them particularly.

The defendants denied the representative character of the nominal plaintiffs as the administrators of Hernshein, and the usee, Charlotte Somers, alleged by amended petition her exclusive ownership of the judgment, dismissed as to the nominal plaintiffs, and continues to prosecute in her own name as plaintiff; to which the defendants excepted on the ground that the allowance of the amendment would be the commencement of a new suit, and they would be precluded from the benefit of the lapse of time between the original institution of the suit and the filing of the amendment, and for other reasons. The exceptions were overruled.

The defendants denied the plaintiff's ownership of the judgment in favor of Joseph Hernshein against Henry Martel; in order to prove which the plaintiff gave in evidence the admissions of Henry Martel made in 1851, to the effect that he knew the plaintiff was the owner of the judgment, which he was sorry that he could not pay, but that in an unguarded moment he had conveyed his property to his brother Frederick. By other evidence it appeared that Henry Martel was then in possession of the land, and had been so in possession ever since his purchase of it in 1846.

The land consisted of two tracts, one of which, at the time of the conveyance from Henry to Frederick Martel, was the homestead of the former, who was a man of family; which was insisted on by the defendant as precluding the plaintiff from relief so far as that tract was concerned.

The defendants, Webb, Harcourt and Jones, denied notice of any fraud in the conveyance from Henry to Frederick Martel; to establish which the plaintiff proved that the fraudulent character of the conveyance was notorious in the neighborhood of the land, and was common talk in Lagrange, where the defendant Webb then resided; that Webb was attorney for Martel in the suit of Joseph Hernshein against him; that at the sale of the land in 1854 by Patton as Frederick Martel's administrator, at which Webb and Harcourt purchased the land, notice was publicly given by an attorney of the plaintiff, that the property was subject to the Hernshein judgment; that the defendant Jones was cautioned not to buy the land, and was informed by a witness, not interested in the property, of difficulties in the way of obtaining a good title, though not specially informed of the fraud in Henry Martel's conveyance.

The defendants objected to this evidence as inadmissible to establish notice.

The defendants pleaded the statutes of limitation of three, five and ten years, and also that any lien which the judgment against Henry Martel may have have had, was lost by the lapse of more than twelve months between the final disposition of the case by the supreme court, in November, 1855, and the date of the amendment of the petition, filed May 28, 1857, by which Charlotte Somers made herself the party plaintiff instead of merely the usee.

It appeared from the evidence, that after the conveyance from Henry to Frederick Martel they both continued to live upon the land, except during a temporary absence of Frederick Martel to California, until the death of Frederick in the spring of 1851, from wounds inflicted by his brother Henry, who thereupon fled the country, and the land was taken in possession by the administrator of Frederick, and continued in his possession and that of the defendants Webb, Harcourt and Jones up to the institution of this suit.

No evidence was introduced by the defendants to prove that they had paid the purchase money for the land, other than the recitals to that effect in their deeds. With reference to this question the court below instructed the jury: “On the subject of innocent purchasers, the rule is, that no man can claim to be an innocent purchaser unless he shows that he paid the purchase money before the institution of the suit, and the recital in the deed that the purchase money was paid is not enough. It must be shown by evidence outside of the deed that the purchase money was paid. If the original sale from Henry Martel to Frederick Martel was fraudulent and without consideration, and if these defendants, Webb, Harcourt and Jones, have not shown payment of the purchase money, outside of the recitals in the deeds, then the plaintiff is entitled to recover, unless Frederick Martel and those claiming under him have had three years' possession,” etc.

There was a verdict for the plaintiff, whereupon the court decreed the land to be sold and the proceeds to be applied to the payment of the judgment. The defendants moved for a new trial, which was refused, and they appealed.

John G. Robson, for the appellant. The transfer from Henry to Fred. Martel was made prior to the rendition of the judgment in favor of Joseph Hernshein, and consequently the judgment was no lien upon the land. There was no estate in Henry Martel on which the lien could fasten. No matter how fraudulent the conveyance from Henry to Fred. may have been, it was good between the parties, and it could not be said that after the transfer he had any estate in the land conveyed. Hart. Dig. art. 1335; 4 Cow. p. 599;9 Id. 120;5 Id. 547; 13 J. R. p. 471; 15 Id....