Phillips v. Schoellkopf
| Decision Date | 11 February 1895 |
| Citation | 29 S.W. 645 |
| Parties | PHILLIPS v. SCHOELLKOPF. |
| Court | Texas Supreme Court |
Proceedings by G. H. Schoellkopf against R. G. Phillips in garnishment. There was a judgment for plaintiff, which was reversed by the court of civil appeals, and plaintiff brings error. Affirmed.
Powell & Harding, for defendant in error. M. B. Templeton and G. C. Grace, for plaintiff in error.
One Frank Hopson, being indebted to the First National Bank of Waxahachie, executed to defendant in error, R. G. Phillips, a deed in trust in the nature of a mortgage upon a stock of goods, to secure the bank and certain other creditors. The plaintiff in error, Schoellkopf, being also a creditor of Hopson, sued out a writ of garnishment, and caused it to be served upon the defendant in error. The garnishee having answered that he neither owed Hopson nor had any of his effects in his hands, a contest arose which brought in question the validity of the deed in trust. At the time the instrument was executed, Hopson was indebted to the bank in the sum of $1,600, which was evidenced by certain promissory notes, which stipulated for an additional payment of 10 per cent. in the event the notes should be placed in the hands of an attorney for collection. But when the negotiation was entered upon which resulted in the execution of the mortgage, Hopson had the sum of $223 to his credit on the books of the bank as a depositor. Having declined to give the security unless he was permitted to withdraw this sum, it was paid out upon his check, and thereupon the mortgage was executed. Phillips, the trustee, was also at the time the cashier of the bank. The value of the goods, as found by the trial court, was $1,400. The debts secured by the mortgage were: One for $116, rent due on the storehouse occupied by the mortgagor; taxes amounting to $54.40, — both of which were preferred; the amount due the bank; and $200 as attorney's fees. The attorneys of the bank drew the instrument, and the court found that the sum secured to them included, not only the fees for collecting the notes, but also fees for defending the mortgage in case it should be attacked. The trial court, having found the facts substantially as stated, concluded that the mortgage was fraudulent, and gave judgment accordingly. Whether it was the opinion of the trial judge that the mortgage was fraudulent per se, or merely fraudulent in fact, does not appear. The court of civil appeals, on the contrary, held the instrument was not fraudulent, and reversed the judgment of the court below, and rendered judgment for the garnishee. It is contended on behalf of plaintiff in error that the mortgage was fraudulent, both by reason of the fact that the mortgagor was permitted to withdraw from the bank the amount which stood to his credit on the deposit account, and thereby to increase his debt, and on account of the provision which made the compensation of attorneys for defending the mortgage a charge upon the mortgaged property. We have jurisdiction to determine only questions of law. Can we say that, upon the proof of either...
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