Pittman v. Rotan Grocery Co.

• Decision Date: 06 March 1897
• Citation: 39 S.W. 1108
• Parties: PITTMAN et al. v. ROTAN GROCERY CO. et al.
• Court: Texas Court of Appeals

39 S.W. 1108

PITTMAN et al. v. ROTAN GROCERY CO. et al.

Court of Civil Appeals of Texas.

March 6, 1897.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Action by the Rotan Grocery Company and others against R. L. Hearne, in which a stock of goods and certain land which defendant had conveyed by a trust deed to T. E. Pittman, as trustee, for benefit of creditors, were attached, and Pittman made oath and gave bond for the trial of the right of property in such goods. From a judgment in favor of plaintiffs and against Pittman and the sureties on such bond for a part of the value of the goods, Pittman and the sureties appeal. Reversed.

Field, West & Smith, L. B. Davis, and Watts, Aldredge & Eckford, for appellants. Poindexter & Padelford and W. F. Ramsey, for appellees.

RAINEY, J.

This is a proceeding under the statute for the trial of the right of property to certain goods, wares, and merchandise. On December 7, 1891, R. L. Hearne conveyed said property and certain lands to T. E. Pittman, as trustee, to secure certain creditors of said Hearne as therein named. Said deed of trust was duly recorded, and Pittman took charge of the property as trustee. Subsequent thereto the appellees herein, creditors of said Hearne, brought suit on their debt, and sued out writs of attachment, which were levied upon the said goods in the hands of said Pittman as trustee, and also the land mentioned in said deed of trust. Pittman made oath and gave bond for the trial of the right of property in said goods, wares, and merchandise, which was accepted and approved. On April 1, 1895, appellees filed their third amended tender of issues, by which they made the beneficiaries in said deed of trust defendants; setting up the indebtedness of said Hearne to each of them, the institution of their respective suits against him, the issuance and levy of their respective writs of attachment, judgment for their respective claims, and foreclosures of said attachments subject to this controversy. They claimed said property to be subject to their writs of attachment, the substance of their allegation being that said debts claimed to be due said beneficiaries were fraudulent and fictitious, and that said deed of trust was executed for the purpose of defrauding, hindering, and delaying the creditors of said Hearne, and that said Hearne was insolvent; and they prayed that the court administer said trust, and that they have judgment subjecting said property to their attachment liens. The claimant, T. E. Pittman, by his second amended tender of issues, denied all the allegations of the plaintiffs' tender of issues, and alleged that at the time of the levy he was in actual possession, as trustee, of said goods, and was entitled to the possession thereof, and that all of the debts named in said deed of trust were genuine debts due and owing by said Hearne, and that said deed of trust was made in good faith. The First National Bank of Grandview, Field, West & Smith, William Bond, and R. W. Moore, beneficiaries in said deed of trust, answered therein, claiming want of notice of any fraud, the genuineness of their debts, etc. The jury, in effect, found the claims of Bond, Moore, and Field, West & Smith to be genuine, and in favor of the plaintiffs against Pittman and the bank, upon which verdict the court rendered judgment deducting from the value of the property, as found by the jury, the sum of $1,555.40, aggregating the claims of Bond, Moore, and Field, West & Smith, and against Pittman and the sureties on his claim bond in favor of the different plaintiffs, aggregating $6,164.60, with interest, from which judgment this appeal was taken by Pittman and his sureties and the bank.

The sixtieth assignment of error is as follows: "The court erred in rendering judgment against T. E. Pittman and the sureties on his claim bond, under the evidence adduced and the verdict of the jury, for that thereby the validity of the trust deed was established, and thereupon a judgment should have been rendered in favor of said T. E. Pittman, for that, under the evidence and upon the verdict returned, said Pittman, as trustee, was entitled to the possession and control of the property and the proceeds thereof, and to administer the same as such trustee." In connection with the foregoing, the appellant sureties on the claim bond assigned the following errors: "The court erred in not granting and sustaining their motion to set aside the judgment rendered against them in this cause, (1) because the verdict shows that T. E. Pittman, at the time plaintiffs levied on the goods in controversy, was properly in the possession of said goods, and that plaintiffs are not entitled to take them out of his possession; (2) because the court has permitted the plaintiffs by their pleadings to change the issues in this cause from a suit to try the right of possession of...