Vodrie v. Tynan

• Decision Date: 23 May 1900
• Citation: 57 S.W. 680
• Parties: VODRIE et al. v. TYNAN et al.
• Court: Texas Court of Appeals

57 S.W. 680

VODRIE et al. v. TYNAN et al.

Court of Civil Appeals of Texas.

May 23, 1900.

Error from district court, Bexar county; J. L. Camp, Judge.

Suit by Vodrie & Co. and another against Kate Tynan and another to set aside a fraudulent conveyance. From a judgment in favor of defendants, plaintiffs bring error. Affirmed.

W. W. King, for plaintiffs in error. Leonard Garza, Jr., for defendants in error.

FLY, J.

Vodrie & Co. and the San Antonio Supply Company sued Kate Tynan and E. K. Tynan, alleging that they had bought certain real estate on Commerce street, in the city of San Antonio, at execution sales had by virtue of judgments held by them against Ed. K. Tynan; that said property had on February 11, 1893, been conveyed by E. K. Tynan to his niece, Kate Tynan, with intent to hinder, delay, and defraud his creditors, plaintiffs being among the number; that said conveyance was made without consideration; and that Kate Tynan knew of the unlawful purpose of the conveyance. It was further alleged that E. K. Tynan had no other property out of which the respective judgments held by plaintiffs could be made, and they prayed that the sale be set aside, and that the title be vested in plaintiffs, share and share alike. Defendant in error Kate Tynan answered by general denial, and pleas of not guilty, and limitation of three, four, and five years. To avoid the effect of the pleas of limitation, it was alleged by plaintiffs in error that defendants in error "conspired and confederated together to place the property of said Edward K. Tynan beyond the reach of his creditors, and for that purpose they concealed from these plaintiffs the fact that said conveyances were made without consideration and with intent to defraud his creditors; that these plaintiffs, up to the 1st day of August, 1898, were ignorant of the existence of said fraud, although they used due diligence to discern the same." The court rendered judgment for defendants.

It was in proof that the deed from E. K. Tynan, conveying the property in controversy to Kate Tynan, was executed and filed for record on February 11, 1893, and that on March 6, 1895, E. K. Tynan executed to Kate Tynan a quitclaim deed to the same property, in which it was recited that the judgment for $3,429 in favor of George Dulling had been reversed, and the cause dismissed, and the vendee was relieved from payment of the same by the vendor. The last-named deed was filed for record on the day of its execution. The suit in this case was filed on April 28, 1899,—more than six years after the execution and record of the first deed mentioned, and more than four years after the execution and record of the last-mentioned deed. The proof showed the payment of $1,000 cash by Kate Tynan to E. K. Tynan, and the assumption and payment of the debt to Mrs. Mary E. Jones, amounting, principal and interest, to $4,720. It was also proved that Miss Kate Tynan had gone into possession of the property on February 1, 1893, had exercised acts of ownership over the same, in having repairs made, in leasing the same, and in collecting the rents, and had paid all taxes due on the property up to the time of the trial. There was no evidence of any concealment of any of the facts connected with the conveyance of the land from E. K. Tynan to his niece, Kate Tynan. The lowest valuation put upon the land at the time of the conveyance was $8,000. It is the settled rule in Texas that fraud will only prevent the running of the statute of limitations until the fraud is discovered, or by the use of reasonable diligence might have been discovered. Munson v. Hallowell, 26 Tex. 475; Anding v. Perkins, 29 Tex. 348; Bremond v. McLean, 45 Tex. 10; Kuhlman v. Baker, 50 Tex. 630; Ransome v. Bearden, Id. 119; Alston v. Richardson, 51 Tex. 1; Kennedy v. Baker, 59 Tex. 150; Brown's Heirs v. Brown, 61 Tex. 45; Calhoun v. Burton, 64 Tex. 510; Bass v. James, 83 Tex. 110, 18 S. W. 336. We are of the opinion that the circumstances surrounding the execution of the deed in February, 1893, such as the inadequacy of the consideration, the relationship of vendor and vendee, and the insolvency of E. K. Tynan, were sufficient to give notice to plaintiffs in error of the intent upon the part of E. K. Tynan to defraud his creditors, and to have incited inquiry as to the participation therein of the vendee. The facts fail to show any diligence whatever upon the part of plaintiffs in error in any efforts to discover fraud, although the record of the deed placed them in position to discover every fact they had at the time of trial that tended to show fraud. The statute of limitations began to run, therefore, from February 11, 1893, more than six years before the institution of this suit; and (it does not matter how fraudulent the conveyance may have been, or who participated in it) Kate Tynan, having held...