Wylie v. Posey

• Decision Date: 05 June 1888
• Citation: 9 S.W. 87
• Court: Texas Supreme Court
• Parties: WYLIE <I>v.</I> POSEY <I>et al.</I>

Page 87

9 S.W. 87

WYLIE

v. POSEY et al.

Supreme Court of Texas.

June 5, 1888.

Appeal from district court, Limestone county.

Action by Wylie against Posey and others to set aside alleged fraudulent conveyances. Defendants had judgment, and plaintiff appealed.

A. C. Prendergast, for appellant. Kimbell & Kimbell and Burrow & Kincaid, for appellee.

WALKER, J.

Prior to October, 1872, Wylie instituted suit upon an obligation for $800, against T. B. Posey and others, and to foreclose the vendor's lien upon a tract of 160 acres of land. March 13, 1877, judgment was rendered for $2,239.17 gold, and interest at 2½ per cent. per month. June 11th, order of sale issued, sale realizing $50. December 11, 1877, alias execution, realizing $100. March 8, 1880, another execution returned, "No property." February 1, 1881, a defective record of an abstract of judgment was recorded. August 25, 1881, execution issued, under which levy was made upon several tracts of land. Soon thereafter Wylie brought suit to set aside certain conveyances alleged to be fraudulent, and incumbering the title to the land so levied upon, setting up in detail the facts relied upon, and asking decree subjecting the land to his lien. Without attempting a detailed statement of the proceedings, only so much will be here given as is deemed necessary to an understanding of the matters passed upon.

The appellees T. B. Posey and his wife entered upon, as their homestead, the 200 acres, adjudged them about January 1, 1880. Their right depends wholly upon whether the judgment lien existed at that date. Our courts have held that, under the statute of 1866, the judgment lien is lost unless executions have been regularly issued, and that a break of 12 months between executions will abate the lien. Barron v. Thompson, 54 Tex. 243; Ficklin v. McCarty, Id. 370; Williams v. Davis, 56 Tex. 250. There was no error, therefore, in the action of the court in holding that the homestead was not liable for judgment. The judgment lien did not exist at the time T. B. Posey and family fixed their residence upon the land.

Whether the 250-acres tract recovered by defendant R. T. Posey, and the 54 acres and the 1¼ acres recovered by defendant J. S. Posey, were subject to the lien fixed by the levy as claimed, depends upon whether they have established titles thereto free from such fraud as could avoid their claims at the suit of the plaintiff. The plaintiff claims that these lands were fraudulently sold by T. B. Posey to his sons, the said defendants R. T. and J. S. Posey. It seems that from 1873 the defendant T. B. Posey had been insolvent. January 1, 1871, T. B. Posey and his wife, the defendant H. E. Posey, executed to L. A. Stroud a trust deed upon 271 acres of land to secure a note for $1,000. In 1875 the defendant R. T. Posey wished to buy this land. His father, T. B. Posey, told him he could have it if he would pay the Stroud note, and assured him of help in making such payment. R. T. Posey, with his father as surety, borrowed $700, and paid it to Stroud on the note, agreeing with his father to pay the remainder in cattle, at $7 each. On this agreement, 61 head of cattle were delivered at one time, and an obligation for 64 head more, which were delivered, satisfying the Stroud note. These cattle were in different brands; some, and probably the greater part, being in brand of T. B. Posey. Upon an adjustment between the father and his son R. T. Posey, it was found that the son owed his father $1,100, for which a note was executed to the father. It being desired that the title pass for the land to the son, the trustee, L. A. Stroud, made a public sale, and the land was bid off by R. T. Posey, and deed therefor was made to him September 22, 1875, reciting payment of $1,575. The deed was placed on record at once, and R. T. Posey has held the land ever since. Of this tract, 20 acres were subsequently sold for $400, which was paid to T. B. Posey upon the note for $1,100. This note was fully paid before lien was fixed by levy upon the lands. It is not shown what disposition was made by T. B. Posey of the money he received from his son in payment of the note. The land is estimated as worth from $12.50 to $20 per acre at the time it was conveyed to R. T. Posey, and at no time since of less value. The history of the J. S. Posey tracts of 54 and 1¼ acres, given in the testimony, substantially is as follows: In 1878, J. S. Posey, a minor, and owning 25 acres, without improvements, adjoining these tracts, desired to buy them. He asked his father to make the trade for him. The father contracted with the vendor at price of $1,000. J. S. Posey paid in cattle $80. The father paid the balance, taking a deed in his own name as guardian for J. S. Posey. The deed was not recorded; and, on J. S. reaching majority, the deed was surrendered, and deed made direct to J. S. Posey. He paid his father five mules, at $550; $250 cash; horse, at $75; cash at several times, over $60. All payment was made in 1880. No note was given for the money. It seems that T. B. Posey gave each of his sons, as soon as they could ride, 10 heifer calves, which, with their increase, were kept and owned by his sons.

The court charged the jury, upon the subject of fraud: "It being alleged by plaintiff that the conveyances held by said defendants R. T. and J. S. Posey to the tracts of land claimed by them are fraudulent, and were executed, at the instance and by the procurement of defendant T. B. Posey, for the purpose and with the intent to hinder, delay, or defraud his creditors, and particularly the plaintiff in this suit, or were intended as gifts by T. B. to said defendants, you are instructed that it devolves upon plaintiff to establish, by a sufficient preponderance of evidence, to the extent of a reasonable certainty, that such was the case. Fraud and fraudulent purpose and intent is a fact, and may be proven as any other fact in a civil suit. It is not necessary, to establish fraud, that it be proven by positive evidence; it may be proven by circumstances surrounding and connected with the transaction. ...