Zachariae v. Swanson

• Decision Date: 09 December 1903
• Citation: 77 S.W. 627
• Parties: ZACHARIAE et al. v. SWANSON.
• Court: Texas Court of Appeals

77 S.W. 627

ZACHARIAE et al. v. SWANSON.

Court of Civil Appeals of Texas.

December 9, 1903.

Appeal from District Court, Llano County; Clarence Martin, Judge.

Action by J. A. Swanson against A. F. Zachariae and another. Judgment for plaintiff, and defendant Zachariae appeals. Reversed.

Flack & Dalrymple and Chas. L. Lauderdale, for appellant.

FISHER, C. J.

This is a suit by Swanson against Zachariae on two promissory notes, each for $866.66, with 8 per cent. interest. An attachment was, at the time of the institution of the suit, issued and levied upon the land in controversy, which the plaintiff, by an amended petition, alleged that one Mrs. Charlotte Holtzer was claiming an interest in. The defendant Zachariae filed a motion to quash and vacate the attachment on the ground that the bond was not in double the amount sued for. It appears that Mrs. Charlotte Holtzer is the daughter of the appellant Zachariae, and prior to the levy of the writ of attachment he conveyed by deed the land in controversy to her. The questions are whether that deed was for a valuable consideration, and whether it was executed in fraud of the appellee and other creditors of Zachariae. The court found in favor of the plaintiff, and foreclosed the attachment lien.

The findings of the trial court are as follows:

"(1) Defendant A. F. Zachariae executed and delivered the two notes set out in plaintiff's second amended original petition. That they are past due, and no part of same has been paid. That suit was brought on same, and plaintiff is the legal and equitable owner and holder thereof.

"(2) That at the time of filing of the original petition herein, on February 4, 1903. plaintiff filed his affidavit and bond in attachment, and on the same day a writ of attachment issued to the sheriff or any constable of Llano county, commanding him to attach so much of the property of defendant A. F. Zachariae as shall be of value sufficient to make the principal of said notes and interest thereon, and on the same date said writ was levied on lot 7 in Block R of the Llano Improvement & Furnace Company Resubdivision to the town of Llano, in Llano county, Texas, as the property of the defendant A. F. Zachariae.

"(3) Said lot was purchased and paid for by defendant, A. F. Zachariae, and said title taken in the name of his daughter Charlotte Holtzer. That the purchase price thereof and cost of improvements upon said lot were paid with money belonging to the defendant A. F. Zachariae.

"Conclusions of Law.

"Plaintiff is entitled to recover of defendant A. F. Zachariae principal, interest, and attorney's fees due on said notes.

"(3) The taking of title to said lot in the name of Charlotte Holtzer was in fraud of plaintiff, and she acquired no title thereby, but title is held by her for the use and benefit of defendant ...