Smith v. Boquet

• Decision Date: 01 January 1864
• Citation: 27 Tex. 507
• Parties: PHILIP K. SMITH v. ADELAIDE BOQUET.
• Court: Texas Supreme Court

27 Tex. 507

PHILIP K. SMITH

v.ADELAIDE BOQUET.

Supreme Court of Texas.

1864.

The presumption in favor of the community resulting from a deed made to either the husband or the wife may, as between themselves and those claiming under them with notice, be rebutted by proof that the purchase was made with the separate funds of either party.

NOTE.--Cooke v. Bremond, ante, 457.

A husband may make a gift or grant of the community, or of his separate property, to his wife, by a conveyance directly to her without the intervention of trustees.

If the husband purchase with his separate funds, or with those of the community, and take the title in the name of the wife, the presumption, as between themselves and all others not claiming as innocent purchasers, will be that the property so purchased was intended for the wife, and not for the husband nor the community.

A party will not be permitted, under the color or guise of a judicial sale, to conceal and withdraw his property from the reach of his creditors.

Where a judgment debtor, with such fraudulent intent, procures an agent to bid in property at a sheriff's sale, in trust for himself or a member of his family, such purchase is void as to his creditors and purchasers; and should the agent at such sale take the title in his own name, a court of equity will not enforce such a trust.

The interpretation which such a transaction should receive depends upon the object and purpose with which it is effectuated by the parties, and is therefore a question of fact for the determination of the jury.

A debtor who is in solvent circumstances may unquestionably purchase property sold under execution issued on a judgment against him, if he do so openly and publicly.

The fact that the purchase was made through an agent in trust for the judgment debtor or for a member of his family, would not of itself indicate a fraudulent intent.

But where it is shown that there is an outstanding and unsatisfied judgment against such debtor; that he has furnished his agent with the funds to make the purchase; that the trust is for one whom he cannot prefer to his creditors; that the purchase was made in pursuance of a secret arrangement between the debtor and his agent, and that on the day of sale, at the instance of the debtor, his agent forbid the sale and announced publicly that the property belonged to the wife of the debtor: Held, that these facts raised the presumption of a fraudulent intention, and that it devolves upon those who assert the fairness and good faith of the transaction to present proof to dispel such presumption.

APPEAL from Liberty. Tried below before the Hon. James M. Maxcy.

Adelaide Boquet, the appellee, instituted proceedings in the district court of Liberty county against her husband, Alphonse Boquet, and Elizabeth Waring, administratrix of F. G. Waring.

The material averments were, that she was the wife of the said Alphonse; that she was the owner in good faith and for a valuable consideration, in her own separate right, of two tracts of land adjoining each other, containing in the aggregate nine hundred and seven acres, which is described by metes and bounds, and upon which petitioner and her husband resided and had their homestead; that one of said tracts, containing five hundred and fifty-two acres, was conveyed by deed to Anonciade Boquet, the daughter of petitioner, by Elizar Winfree, on the 13th of April, 1849; that the other tract was conveyed by deed to Anonciade on the 11th of September, 1850. That petitioner furnished the said Anonciade with the money to pay for said tracts, and that they were paid for by Anonciade with the money so furnished; that in consideration of the money so furnished, the said Anonciade, who was then a single woman, did, on the 9th of November, 1850, execute to petitioner her note for five thousand dollars, and, to secure the same, did execute to petitioner a mortgage on said tracts and some personal property; that after the execution of the note and mortgage, Anonciade intermarried with W. R. Swinney; that Anonciade, after the birth of a child, died; that after her death the child died, at which time the note was due and unpaid. That W. R. Swinney, surviving husband of Anonciade, agreed to settle the note by conveying to petitioner all the property embraced in the mortgage; that petitioner entrusted this matter to her husband, and gave him the note for the purpose of making the settlement; but that her husband, without her knowledge or consent, and in fraud of her rights, took the conveyance in his own name; that a part of the property thus conveyed to him by Swinney was the two tracts of land; that the note, which was the separate property of petitioner, was the sole consideration of the conveyance made by Swinney to her husband.

An execution against Alphonse Boquet was levied upon an undivided seven hundred acres of said nine hundred acres, as the property of Alphonse, to satisfy a debt against him; that the same was sold under said levy by the sheriff of Liberty county on the 5th of February, 1856; that on the day of the sale petitioner instructed her agent and attorney, J. D. Lum, to forbid the sale and to state that the same belonged to her; that she further instructed him, that if the said land did not go too high to bid it off for her; that her agent then got F. G. Waring to bid at the sale for her, and the land was knocked off to him for twenty-five dollars, petitioner furnishing the purchase money; that the sheriff made a deed to Waring for said seven hundred acres; that Waring died in July, 1856; that Elizabeth Waring administered upon said Waring's estate, and at the April term, 1858, of the probate court of Liberty county, she obtained an order to sell said land as the property of her intestate; that the same was advertised for sale on the first Tuesday in July next. Petitioner prays for process against the defendants, and that the deed from W. R. Swinney to Alphonse Boquet be decreed to inure to petitioner's benefit; that said Alphonse Boquet be decreed to hold said land in trust for petitioner, and that the title thereto be vested in the petitioner; that the said sheriff's deed be set aside and annulled; that she be quieted in her title.

The defendant, Elizabeth Waring, administratrix of F. G. Waring, filed a general demurrer and a general denial.

The answer of Alphonse Boquet admitted “that the consideration as passed to said Swinney for the conveyance made by him for the land in question among other property, was a five thousand dollar note made by Anonciade Boquet, afterwards Anonciade Swinney.” He also admitted that the note was the sole and separate property of Adelaide Boquet, the plaintiff, but he averred that the twenty-five dollars “furnished to Fielder G. Waring” was “furnished” by him, Alphonse, and was money acquired during his marriage with Adelaide. He prayed that “if equity and good conscience require it, he consents that the deed from Swinney to him be cancelled and that the title be vested in the plaintiff, that if that cannot be done, then he prayed that the sheriff's deed to F. G. Waring be cancelled and that the title be vested in the community estate of himself and Adelaide.”

P. K. Smith was made defendant, and claimed an undivided seven hundred acres...