Williams & Chastain v. Laird, 948.

• Citation: 32 S.W.2d 502
• Decision Date: 30 October 1930
• Docket Number: No. 948.,948.
• Parties: WILLIAMS & CHASTAIN v. LAIRD.
• Court: Texas Court of Appeals

32 S.W.2d 502

WILLIAMS & CHASTAIN v. LAIRD.

No. 948.

Court of Civil Appeals of Texas. Waco.

October 30, 1930.

Rehearing Denied November 20, 1930.

Appeal from District Court, Johnson County; O. B. McPherson, Judge.

Suit and attachment proceeding by Williams & Chastain against G. B. Gillespie, in which W. E. Laird claimed right of property in the goods attached. There was judgment for the third party claimant, and plaintiffs appeal.

Affirmed.

J. M. Moore and J. K. Russell, both of Cleburne, for appellants.

B. Jay Jackson and Penn J. Jackson, both of Cleburne, and Goree, Odell & Allen, of Fort Worth, for appellee.

GALLAGHER, C. J.

This is a proceeding under the statute for the trial of the right of property in seven bales of cotton. This is the second appeal in the case. The opinion of this court on the former appeal is reported in 13 S.W.(2d) 944. The issues hereinafter discussed, however, are presented to this court for the first time in this appeal.

Appellants, Williams & Chastain, held a note against G. B. Gillespie, which was past due. They brought suit thereon in the county court of Johnson county, sued out a writ of attachment, and caused the same to be levied upon seven bales of cotton as the property of said Gillespie. Appellee, W. E. Laird, claimed to have purchased said cotton and presented his affidavit and bond for the trial of the right of property. The same were accepted by the officer who levied the writ and returned and filed in the district court of Johnson county. Appellants in their tender of issues pleaded, as ground for holding the cotton levied on subject to their writ of attachment, that the same was the property of said Gillespie, the defendant in such writ; that he was insolvent; that his transfer of the same to appellee was fraudulent; that appellee's alleged purchase of the same was subsequent to the levy of their writ; that his claim of ownership was fraudulent and asserted in bad faith; that appellee and Gillespie connived and conspired together to defeat appellants in the collection of their debt. Appellee, in reply to said allegations, pleaded that said Gillespie was absent; that he authorized his wife, Mrs. Nettie Gillespie, to sell said cotton; that he bought the same from her, paid full value therefor, and received from her the tickets issued by the yard in which it was stored, prior to the levy of appellants' writ of attachment; that he bought said cotton in good faith and without notice of any fraudulent intent on the part of his grantor; that there was in fact no fraudulent intent on the part of anyone connected with said transaction.

The case was tried to a jury. Appellants requested the court to charge the jury to return a verdict in their favor, on the ground that the undisputed evidence showed that the sale of said cotton necessarily tended to hinder, delay, and defraud appellants in the collection of their debt, and was fraudulent in law. The court refused their request and submitted the case to the jury on special issues, in response to which the jury found, in substance:

(a) That G. B. Gillespie was indebted to appellee on the 5th day of November, 1927, in the sum of about $350.

(b) That Mrs. Gillespie sold ten bales of cotton on said date to appellee, said cotton having been grown on a farm occupied by her said husband and herself, and received from appellee as consideration therefor the sum of $1,051.35.

(c) That she did not in making such sale intend to delay, hinder, or defraud appellants in the collection of their debt.

(d) That at the time of such sale it was understood between appellee and Mrs. Gillespie that he was obligated to see that the remainder of the consideration therefor in excess of his own debt was applied to the payment of other debts of said Gillespies, and that he did so.

The court rendered judgment on said verdict in favor of appellee, and appellants present the same to this court for review.

Opinion.

Appellants present a group of propositions in which they contend that the sale of said cotton by Mrs. Gillespie, acting for her husband, an insolvent debtor, to appellee, who had notice of such insolvency, for a sum materially in excess of the amount owed to said purchaser, and the payment of such excess by a check, thus placing same at her disposal, was fraudulent in law and void as to existing creditors of said Gillespies, including appellants, and that the court therefore erred in refusing to instruct the jury to return a verdict in their favor. Appellants further contend therein that under such facts the intent which actuated Mrs. Gillespie in making such sale was immaterial, and that the court erred in submitting the issue of such intent to the jury for determination instead of instructing a verdict in their favor. Appellants further contend therein that the answer of the jury that Mrs. Gillespie did not in making such sale intend to delay, hinder, or defraud them in the collection of their debt is without support in the evidence.

G. B. Gillespie, his wife, Mrs. Nettle Gillespie, with their six children, resided on a farm located near Grandview, the property of Mrs. Gillespie and consisting of about 140 acres. Said farm was incumbered with a loan in the sum of $6,000, which was placed thereon in the spring of 1925. Gillespie cultivated said farm during the years 1925 and 1926. His operation thereof was unprofitable financially. At the end of the year 1925 he owed appellants for supplies, the debt herein sued on, and was unable to pay the same. Being unable to finance the operation of the farm for the year 1926 without assistance, he mortgaged the entire crop to be raised thereon during said year to a bank to secure the necessary funds to do so. The crop raised that year was appropriated to the payment of such indebtedness. They were unable to pay the annual interest on the loan which became due in February of that year. Neither were they able to pay the annual taxes for said year. Early in 1927 they discussed the situation with Mr. Wade, who represented the loan company, and appellee, the brother of Mrs. Gillespie. The result of such discussion was an agreement on the part of the loan company to carry the interest and taxes then past due another year, and on the part of the Gillespies that the same should be paid out of the crop raised on said farm for the year 1927. Appellee agreed in that connection to advance from time to time the necessary money to enable them to cultivate and gather said crop. It was further agreed by all the parties that appellee was to be first repaid out of the proceeds of the crop for the advances so made by him, and the remainder of such proceeds was to be applied to the discharge of interest on said loan and taxes on said farm. Appellee knew at that time that the Gillespies were hopelessly insolvent. Appellee, in pursuance of such agreement, furnished the sum of $350 to enable the Gillespies to raise a crop on said farm, and the loan company, represented by Mr. Wade, forbore to enforce collection of its debt, interest, and taxes, by foreclosure. Some time in the summer thereafter, G. B. Gillespie surrendered the management and operation of the farm to his wife and went to Houston, where he found employment and where he continued to reside until after the transaction involved in this suit. Mrs. Gillespie raised seventeen bales of cotton on said farm during the year 1927. She sold seven bales of the same and paid for the picking of the entire crop out of the proceeds of such sale. She also paid out of such proceeds a part of the delinquent taxes on said farm, and expended the remainder for necessary supplies for the family while gathering and marketing said cotton. The remaining ten bales were stored in a cotton yard at Grandview, and she held the tickets from said yard therefor.

Appellee, on the 5th day of November, 1927, went to the Gillespie farm and bought from Mrs. Gillespie said ten bales of cotton, paying the full market price therefor. Such payment was made by deducting from the total consideration for such purchase the $350 owed by the Gillespies to him, and by giving Mrs. Gillespie a check on a bank at Grandview for the remainder of the purchase price in the sum of $701.35. She then delivered to him the yard tickets representing said cotton. Mrs. Gillespie, with reference to what conversation occurred between her and appellee at the time she sold him said cotton, testified:

"During this conversation Eli (appellee) and I had with reference to the cotton, we might have discussed Tom Wade with reference to the loan company * * * I think we discussed the loan company, the interest on the loan and Mr. Wade, out there in that conversation. I think Tom Wade's name was mentioned between Eli and I in that conversation in discussing the loan company wanting their money out of it * * * At the time I sold my brother, W. E. Laird, that cotton I had no intention to defraud my creditors by selling him that cotton. I wasn't trying to beat Williams & Chastain nor anybody else by selling that cotton; I was just trying to save my place." (Italics ours.)

Mr. Wade testified with reference to the agreement heretofore referred to as follows:

"Mr. Laird agreed to let him have money to make the crop with provided we would let him have his money out of the crop first and we would get what was left, and we agreed to it. I mean by we, the loan company. I looked to Mr. Laird for that money * * * That was the interest for 1926 I was talking about. The interest payment was due February 1st. There had been no interest paid since the loan was made, and my recollection is that it was made in 1925."

He further testified with reference to a conversation with appellee on the day he purchased the cotton as follows:

"I remember the day that the cotton was levied on * * * I was in Cleburne that same morning I think * * * After I returned to Grandview I met the defendant, Mr. Laird. I don't remember where I met him at...