Schmidt v. Greenwade

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Schmidt v. Greenwade, 129 S.W.2d 324 (Tex. App. 1939)
• Decision Date: 25 May 1939
• Docket Number: No. 2075.,2075.
• Parties: SCHMIDT v. GREENWADE et al.

129 S.W.2d 324

SCHMIDT v. GREENWADE et al.

No. 2075.

Court of Civil Appeals of Texas. Waco.

May 25, 1939.

Error from District Court, Bosque County; O. B. McPherson, Judge.

Suit by Mrs. H. F. Schmidt against M. P. Greenwade and others on a promissory note and to set aside a deed executed by named defendant to defendants Nannie Greenwade and Turner Greenwade. To review a judgment for plaintiff for amount of note but denying cancellation of deed, plaintiff brings error.

Affirmed.

Fred O. Jaye and Oscar Calloway, both of De Leon, for plaintiff in error.

Cureton, Cureton & Cureton, of Meridian, and Martin & Allred, of Hillsboro, for defendants in error.

GALLAGHER, Chief Justice.

The plaintiff in error, Mrs. H. F. Schmidt, brought this suit against defendants in error, M. P. Greenwade, his wife, Nannie Greenwade, and Turner Greenwade, their son, on a promissory note for $1715.66 executed by M. P. Greenwade to her. The parties will be designated as in the lower court. The plaintiff joined the wife and son as parties defendant for the purpose of setting aside two deeds, one to Nannie Greenwade for 596½ acres of land and one to Turner Greenwade for 2047 acres of land, on the ground that such conveyances were fraudulent, that is, were executed for the purpose of defrauding plaintiff as a creditor. The plaintiff also sued out a writ of attachment against all the defendants and had the same levied on the respective tracts of land described in said deeds, but such writ was quashed at the trial of the case because the bond was made payable only to M. P. Greenwade. Defendants M. P. and Nannie Greenwade pleaded a general denial, and alleged that the consideration for the deed to the wife, Nannie Greenwade, was the payment of a debt of $1000 for money loaned by her to her said husband shortly after their marriage and never repaid, and that the consideration for the deed made to the son, Turner Greenwade, was services he had rendered to his father for a series of years preceding and for which services he had never been paid. Turner Greenwade answered separately, denied plaintiff's allegations, and alleged specifically that the consideration for said deed to him was services which he had rendered to his father, M. P. Greenwade, and to secure the payment to him therefor; that at the time of such conveyance there was a prior mortgage on said land to the Federal Land Bank of Houston for the sum of $19,800, with accumulated interest, and that there were also delinquent taxes due thereon at that time; that shortly thereafter he reconveyed said land to his father, reserving a vendor's lien to secure a note for $5,200 executed by his father to him, the amount due him for services rendered as aforesaid as adjusted and agreed upon at the date of such reconveyance.

The case was tried by the court without a jury and judgment rendered for the plaintiff for the amount of the note sued upon, but cancellation of said deeds was denied.

Plaintiff presents a group of assignments in which she contends that the court erred in denying the cancellation of said deeds. She contends thereunder that the uncontradicted evidence shows that said conveyances, and each of them, were made with the intention to hinder, delay and defraud creditors of M. P. Greenwade, including herself. The finding of the court in favor of the defendants denying cancellation of said deeds was general. Every issuable fact must therefore be considered found in defendants' favor if there is any evidence to support such finding. In passing upon the sufficiency of the evidence to sustain each finding, we must view the same in the light most favorable to defendants' contention, disregarding evidence, if any, to the contrary. The rule so announced applies to consideration of the testimony of defendants in their own behalf, and any vagueness or inconsistency therein or any conflict with the testimony of other witnesses merely raised questions of fact to be determined by the trial court. Hines v. Kansas...