Opinion
No. 7349.
Decided April 3, 1940. Rehearing overruled January 15, 1941.
1. — Parent and Child — Divorce.
An obligation of a father to support and educate his minor children by his first wife, later divorced, was a legal and continuing one imposed by law, even though the children have been awarded to the divorced wife.
2. — Fraud — Conveyances.
A conveyance from a husband to his second wife made with the intent to evade future liabilities for the support and education of his minor children by his first wife was void as to subsequent creditors.
3. — Limitation — Cause of Action.
Limitation does not begin to run until the right or cause of action accrues, and for such right to accrue there must exist such facts as will authorize the person asserting the claim to seek relief in a court of competent jurisdiction.
4. — Limitation — Fraudulent Conveyance — Deeds.
A suit by a divorced wife to recovery money expended by her for the maintenance, support, and education of the minor children of herself and her divorced husband, which had been awarded to the wife in the divorce proceedings, was not barred by any statute of limitation, when there is nothing in the evidence to show that she had a right to file her suit prior to the time she did file same, or to attack a deed by the husband to his second wife, of land inherited by him several years before, conveyed for the purpose of avoiding his obligation to support and maintain these children.
5. — Fraudulent Conveyances — Limitation — Adverse Possession.
While a conveyance in fraud of creditors, where recorded and the conditions of the statute are met, will support title by limitation in the grantee, defrauded creditors had the right to proceed against the conveyances at the time of the commencement of the adverse possession by the grantees in the said deeds, and the accrual of their right to enforce their claims.
Error to the Court of Civil Appeals for the Third District, in an appeal from Williamson County.
Action by Ethel Boyd Hartman seeking to garnishee the amount of $1500, deposited in the First Taylor National Bank by A.P. Hartman, her former husband, to the credit of Alma T. Hartman, the second wife of A.P. Hartman. The plaintiff alleged that at the time she and A.P. Hartman were divorced she was awarded the custody of their three minor children, and that some years later she obtained a judgment against A.P. Hartman for the sum of $1500, being a portion of the amount she had expended for the necessary care, education, maintenance and support of said children. Plaintiff further alleged that the said A.P. Hartman had inherited from his mother a large tract of land in Calhoun County, Texas, and that for the sum of $5 and love and affection had transferred said property to Alma T. Hartman, his second wife, in defraud of his creditors. That the money she was attempting to garnishee was received from royalties on said land and was subject to the payment of her judgment of $1500.00. The bank answered that it had no deposit for A.P. Hartman or community deposit for him and his wife, but the only deposit it had was for Mrs. Alma T. Hartman, as her separate property. The trial court rendered judgment for plaintiff, which was reversed and rendered by the Court of Civil Appeals in favor of Alma T. Hartman, based upon a plea of limitation of five years, 109 S.W.2d 218, and plaintiff has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.
Wilcox Graves, of Georgetown, for plaintiff in error.
There could be no cause of action in favor of plaintiff until it had been determined that A.P. Hartman, her former husband, owed her money for the support of herself and his minor children, and no cause of action could arise herein until her right to such contribution has arisen, and had suffered a wrong. Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815; Compton v. Perry 23 Tex. 414; Houston T.C. Ry. Co. v. Hill, 63 Tex. 381.
Adverse possession does not begin to run against a claim to an interest in land until the claim matures and the person asserting such claim is in a position to enforce the same against the person who is holding the land adversely. Wilson v. Beck, 286 S.W. 315; Texas Emp. Ins. Assn. v. Guidry, 93 S.W.2d 509. Wood Wood, of Georgetown, for defendants in error.
A fraudulent deed can only be attacked by a previous creditor, and by a party who becomes a creditor subsequent to the making of the fraudulent deed, but who has no notice that such deed has been made, and where a creditor has no specific lien on the real estate by levy of attachment or by abstract of judgment, an attempt to have deed held void because of fraud of his debt, his action is subject to the four year statute of limitation. Lehmberg v. Biberstein, 51 Tex. 457; Lewis v. Simon, 72 Tex. 470, 10 S.W. 554; Perry v. Brown, 76 S.W.2d 230.
On February 8, 1932, Ethel Boyd Hartman obtained a judgment against A.P. Hartman in the district court of Williamson County for the sum of $1500.00 for moneys expended by her for necessaries for support of the three minor children of the said Ethel Boyd Hartman and A.P. Hartman. In June, 1935, Ethel Boyd Hartman procured a writ of garnishment upon her judgment of February 8, 1932, against the bank seeking to subject moneys in said bank appearing to the credit of Alma T. Hartman. In such garnishment proceedings it was alleged that in 1916 Ethel Boyd Hartman obtained a divorce from A.P. Hartman in the district court of Williamson County and was awarded the custody of their three minor children; that A.P. Hartman married Alma T. Hartman in 1920; that in 1926 the mother of A.P. Hartman died and devised to him by will 594 acres of land in Calhoun County, together with other property; that on May 6, 1927, A.P. Hartman conveyed said land to his second wife, Alma T. Hartman, for the sole and only purpose of avoiding his legal liability to support his said minor children; that a part of the minerals in and under said land had been sold and the proceeds thereof deposited in the Taylor bank; that because of such facts said money in the name of Alma T. Hartman was subject to the payment of the judgment against A.P. Hartman. Alma T. Hartman answered in the garnishment proceeding that the land from which the minerals had been sold belonged to her separate estate and claimed title thereto in virtue of the three and five year statutes of limitation prior to the issuance of the writ of garnishment, and also pleaded the four year statute of limitation to the claim asserted by Ethel Boyd Hartman. She made no proof of facts to support the three year statute. A trial to the court resulted in a judgment in favor of Ethel Boyd Hartman and against Alma T. Hartman and A.P. Hartman. The aggrieved parties appealed to the Court of Civil Appeals at Austin, Texas, and the judgment of the trial court was reversed and rendered. 109 S.W.2d 218. Ethel Boyd Hartman was granted writ of error.
1, 2 The trial court in rendering judgment against Alma T. Hartman evidently determined that the conveyance from A.P. Hartman to his second wife on May 6, 1927, was for the purpose of defrauding a future creditor, that is, to avoid his obligation to support and educate his minor children by his first wife. That such an obligation was a legal and continuing one imposed by law cannot be doubted. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564. According to the evidence the conveyance from A.P. Hartman to his second wife was a gift and if such a gift was made with a fraudulent intent to evade future liabilities, such a conveyance is void as to subsequent creditors. Stevens v. Cobern, 109 Tex. 574, 213 S.W. 923; Cole et al v. Terrell et al, 71 Tex. 549, 9 S.W. 668.
3 In the case of Williams et vir v. The Pure Oil Company et al, 124 Tex. 341, 78 S.W.2d 929, Mr. Justice Critz, speaking for the Commission, said:
"It seems to be the settled law of this State that limitation does not begin to run until the right or cause of action accrues. The right or cause of action does not exist until facts exist which authorize the person asserting the claim to seek relief in a court of competent jurisdiction from the person due to make reparation. It involves both the existence of the right, and facts sufficient to constitute a cause of action." (Citing authorities).
4 Ethel Boyd Hartman filed her suit in the district court of Williamson County against A.P. Hartman on the second day of October, 1931. This suit was to recover money which had been expended by her for the maintenance, support and education of the minor children of herself and A.P. Hartman. That she had a right to file suit against A.P. Hartman before such time does not appear in the evidence, and under the record we must assume, in support of the judgment of the trial court, that she timely filed her suit. It cannot be said that Ethel Boyd Hartman had a right to attack the fraudulent deed before her cause of action against A.P. Hartman had accrued. When her cause of action against A.P. Hartman accrued she then for the first time had a right to pursue her remedies against the property fraudulently conveyed, that is, to attack the fraudulent deed or to reach the property through some species of execution. Whether the possession of the fraudulent grantee became adverse at the time Ethel Boyd Hartman's cause of action against A.P. Hartman accrued or at the time such cause of action was reduced to judgment, we need not determine, for at either time the four or five years statutes of limitation does not preclude the claim asserted by Ethel Boyd Hartman.
5 It is true that a conveyance in fraud of creditors, where recorded and the conditions of the statute are met, will support title by limitation in the grantee. Rutherford v. Carr, 99 Tex. 105, 87 S.W. 815; Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855. But in such cases the defrauded creditors had the right to proceed against the conveyances at the time of the commencement of the adverse possession of the grantees in said deeds. Here Ethel Boyd Hartman, being a future creditor, had not the right to enforce her claim against the property fraudulently conveyed until her cause of action had accrued against A.P. Hartman. It follows, therefore, that none of the statutes of limitation pleaded by Alma T. Hartman preclude the claim asserted by Ethel Boyd Hartman.
The judgment of the Court of Civil Appeals reversing and rendering the judgment of the trial court will be reversed and the judgment of the trial court will be affirmed.
Opinion adopted by the Supreme Court April 3, 1940.
Rehearing overruled January 15, 1941.
Mr. Justice Critz disqualified and not sitting.