McClelland v. Barnard
| Decision Date | 18 May 1904 |
| Citation | 81 S.W. 591 |
| Parties | McCLELLAND et al. v. BARNARD et al. |
| Court | Texas Court of Appeals |
Appeal from McLennan County Court; G. B. Gerald, Judge.
Action by George Barnard and others against Peter McClelland and others for the determination of the title to certain horses levied on and claimed by Theressa E. McClelland. From a judgment in favor of plaintiffs, the McClellands appeal. Reversed.
See 80 S. W. 841.
Sleeper & Kendall, for appellants. J. T. Sluder, for appellees.
This is an action for the trial of the right of property to two certain horses, levied upon by virtue of executions in favor of appellees. The appellant Theressa E. McClelland, who is the wife of Peter McClelland, claimed said horses as her separate property. Upon the trial appellees presented their tender of issues, setting up that the claim of Mrs. Theressa E. McClelland to said horses was fraudulent, and made for the purpose of hindering, delaying, and defrauding the creditors of the said Peter McClelland; that the said Peter McClelland and wife have a large amount of personal property out of which to claim their exemptions, including other horses than those levied upon; and that, if said horses were ever transferred to Mrs. Theressa McClelland, it was done for the purpose of hindering, delaying, and defrauding the plaintiffs and other creditors of Peter McClelland. Appellant Mrs. Theressa McClelland, joined by her husband, Peter McClelland, presented their tender of issues, setting up that they were husband and wife; that on May 31, 1901, Peter McClelland by bill of sale conveyed for love and affection to Mrs. Theressa E. McClelland said two horses; that at the time of such conveyance said Peter McClelland was a married man and the head of a family, and that these horses were the sole and only horses owned by him at said time, and since then he has owned no horses whatever; that said horses, at the time of such conveyance, were being used as family carriage horses by Peter McClelland and his family; that same were and are exempt; and that said conveyance was a valid conveyance—and praying for the restitution of said horses. The case was tried before a jury, and resulted in a verdict for appellees, and judgment was entered thereon.
Appellants' first assignment of error complains of the following clause of the court's charge: "The jury are instructed that the gift of exempt property from the husband to his wife, on the ground of love and affection, is good, if made in good faith, and with no intent to defraud his creditors." Their second assignment of error complains of the following clause of the court's charge: "If the jury believe from the testimony that there are now two pairs of horses held by the defendant, and that this gift of two horses, made to defendant by her husband, was made to defeat existing debts, then they should find for plaintiffs, the record showing the amount claimed." The testimony tends to show that the two horses in controversy...
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... ... to such creditors. Matador Land & Cattle Co. v ... Cooper, 87 S.W. 235; McClelland v. Bernard, 81 ... S.W. 591. (6) There can be no estoppel in this case because ... there was no showing of reliance by the appellant on other ... ...
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National Refining Co. v. Continental Develop. Corp.
...and can have no interest or concern is not fraudulent as to such creditors. Matador Land & Cattle Co. v. Cooper, 87 S.W. 235; McClelland v. Bernard, 81 S.W. 591. (6) There can be no estoppel in this case because there was no showing of reliance by the appellant on other property being in th......
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Matador Land & Cattle Co. v. Cooper
...or concern is not fraudulent as to such creditors. Evans v. Welborn, 74 Tex. 530, 12 S. W. 230, 15 Am. St. Rep. 858; McClelland v. Barnard (Tex. Civ. App.) 81 S. W. 591. In the case first cited, which is strikingly similar upon this point to the one before us, it is said: "The land having b......
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...though the conveyance was voluntary, with bad motive and to avoid creditors. Daugherty v. Bogy (C.C.A.) 104 F. 938; McClelland v. Barnard, 36 Tex.Civ.App. 118, 81 S.W. 591; Blum v. Light, 81 Tex. 414, 16 S.W. 1090; Luhrs v. Hancock, 181 U.S. 567, 21 S.Ct. 726, 45 L.Ed. 1005; Deering v. Holc......