Opinion
No. 3828.
February 27, 1930.
Appeal from District Court, Lamar County; Newman Phillips, Judge.
Action by Mrs. Maudie Kelley and husband against E. R. Stubblefield and others. From a judgment for defendants, plaintiffs appeal.
Affirmed.
The Blossom National Bank brought suit against A. G. Kelley on a promissory note in the county court and caused an attachment to be sued out and levied on a one-acre tract of land. Thereafter at a regular term of the county court, and on May 17, 1927, a judgment was regularly rendered and entered of record in favor of the bank against A. G. Kelley for $510. The judgment is not set out in full in the record, but it is agreed by the parties that "said judgment recited the facts of the issuance and levy of the writ of attachment on the land which was specially described." On July 5, 1927, the following writ was issued and placed in the hands of the sheriff:
"The State of Texas"To the Sheriff or any Constable of Lamar County, Greeting:
"Whereas, on the 17th day of May, A.D. 1927, Blossom National Bank of Blossom, Texas, recovered a judgment in the County Court of Lamar County against A. G. Kelley for the sum of Five Hundred One No/100 ($501.00) Dollars (said judgment being entitled to a credit of $17.00) with interest thereon from the 17th day of May, A.D. 1927, at 10 per cent per annum and all costs of suit, with a foreclosure of an attachment lien on the following described real property situated in the County of Lamar and State of Texas, to-wit: (Here follows description.)
"Therefore, You are commanded that you seize the above described property and sell the same as under execution. And should the proceeds of said sale be insufficient to satisfy said judgment, interest and costs of suit and the further costs of executing this writ, then by sale of the goods and chattels, lands and tenements of the said A. G. Kelley you will cause to be made said sum of money then remaining unpaid," etc.
Thereafter Mrs. Maudie Kelley, wife of A. G. Kelley, joined by her husband, brought suit against the bank and made the sheriff a party thereto, asking for a restraining order, temporary and permanent, enjoining the sale of the tract of land described, alleging as grounds therefor, namely: (1) That the land was not subject to attachment and sale for indebtedness of A. G. Kelley, because Mrs. Kelley was the owner of the land as her own separate property by deed duly executed to her on September 26, 1925, by A. G. Kelley; and (2) that the judgment against A. G. Kelley "did not direct a foreclosure of the attachment lien created by the levy of the writ of attachment herein mentioned, and the order of sale issued on the 5th of July, 1927, directing the sale of the premises was therefore void and conferred no authority on the sheriff to sell these premises." A temporary restraining order was granted by the trial judge. The defendants made answer to the petition, setting up that (1) the judgment of the county court duly recited the issuance and levy of the attachment; (2) the deed to Mrs. Kelley was without a valuable consideration and was executed while A. G. Kelley was insolvent to delay and defraud creditors; and (3) at the time of the levy of the attachment the bank had no notice of the deed. The trial court passed upon the issues of fact and entered judgment dissolving the temporary injunction and awarding a recovery in favor of the defendants against the plaintiffs of all costs expended. In the body of the judgment appear the findings made by the trial court, namely:
"1. The court finds that the grantor in the deed to the plaintiff Mrs. Maudie Kelley was insolvent at the date of the deed to Maudie Kelley.
"2. The court finds that the deed to Maudie Kelley was not delivered to her until subsequent to the levy of attachment in this cause.
"Upon said findings the court dissolves the temporary injunction issued in this case."
By deed of date September 26, 1925, and duly acknowledged, A. G. Kelley conveyed to his wife, Mrs. Maudie Kelley, the one-acre tract in controversy. The consideration was proven to be, as recited in the deed, "the love and affection I have for my wife, Maudie Kelley." This tract of land was the separate property of A. G. Kelley, having been willed to him by his mother. Upon the execution of the deed to his wife, A. G. Kelley placed it in his private box kept in the vault of the appellee bank, where such deed remained until after the levy of the attachment on the land and the service of citation upon Mr. Kelley. The attachment was levied on April 29, 1927. The deed was filed for record on "May 10, 1927, at 8:50 A. M." Mr. Kelley testified, in substance, that he made the deed to his wife because his mother in her lifetime requested that he do so in appreciation of the kindness and attention shown in the mother's sickness; that the deed was placed in his private box in the presence of the officers of the bank; that he informed the officers of the bank before the attachment was levied that the land belonged to his wife; that the day the deed was recorded he talked to his wife about it, and she asked him to place it of record and gave him the money to pay the registration fee. The wife did not testify in the case. The president of the bank testified that he "did not know that Mr. Kelley had made his wife a deed, or that such deed was in the bank, until after the levy of the attachment writ."
It was shown that Mr. Kelley was indebted to the bank in 1925 and before and since that date. There was also a judgment rendered against Mr. Kelley for $225. It was shown that no execution had been issued on the judgment since its rendition in 1918. The indebtedness to the bank was, as shown, a continuing debt. The indebtedness was secured by a chattel mortgage on teams, plow tools, and a crop. That was the extent of Mr. Kelley's property besides this land. Mr. Kelley testified as follows: "I did owe the bank some money; I had been owing them off and on for seven or eight years. I did owe them in 1925, and I got money from them that year. * * * In the fall of 1925 I paid them a little on this debt. * * * I made a tolerably good crop in 1925, but in 1926 I made a bad failure. * * * I am not sure whether a fellow could have sold the property that they had a mortgage on at that time, on September 26, 1925, for enough to pay my indebtedness to the bank, but I would not have taken that for it. Selling at its reasonable value I think it would have brought enough to pay my indebtedness to the bank, and I thought so at that time." Mr. Kelley further stated that he had no money in September, 1925. The evidence in behalf of the bank, however, shows that the personal property under mortgage was greatly insufficient in value to pay the bank note in September, 1925, and afterwards. The evidence bearing upon insolvency of A. G. Kelley at the time of the execution of the deed is conflicting, and the trial court's finding of fact is sustained.
Tom L. Beauchamp, of Paris, for appellants.
Hutchison Fisher, of Paris, for appellees.
The assignments of error in behalf of Mrs. Kelley present, in effect, the points in view that she was entitled to relief and protection by injunction because she was proven to be the true legal owner of the land as her separate property under a valid deed duly delivered before the time of the levy of the attachment. The trial court denied the injunction upon findings of fact, in effect, that there had been no delivery of the deed to Mrs. Kelley until after the levy of the attachment writ upon the land, and the deed was legally fraudulent as against existing creditors. It is believed that circumstances proven sufficiently justified the conclusions of fact reached by the trial court, and that this court would not be warranted in holding otherwise as a matter of pure law. Evidently there was a delivery and acceptance of the deed on May 10, 1927, the day of its registration, which was after the date of the levy of the attachment; but prior to this date the circumstances are of such a nature as not to indubitably establish an intention to deliver the deed. The trial court was not bound to look alone to the evidence of Mr. Kelley. Brannon v. Bank (Tex.Civ.App.) 211 S.W. 945.
But conceding the fact to be that there had been a delivery and acceptance of the deed before the date of the attachment, yet Mrs. Kelley may not be regarded as being entitled to protection and relief by injunction, in view of the evidence that the deed was a voluntary conveyance made by an insolvent to his wife for the consideration of "love and affection." Such facts would make the conveyance void under the statute. Article 3997, R.S. The validity of the conveyance, as against existing creditors, is made to depend upon its being "upon a consideration deemed valuable in law." The consideration of "love and affection" does not meet the demands of the statute. Davis v. Campbell-Root Lbr. Co. (Tex.Civ.App.) 231 S.W. 167; Goolsby v. Manning (Tex.Civ.App.) 270 S.W. 936.
The trial court was authorized to find as a fact that A. G. Kelley was not possessed of property sufficient to pay his existing debts at the time of the conveyance. According to the evidence in behalf of the bank, it was not within Mr. Kelley's reasonable ability to pay, based upon the amount of his available property, his indebtedness to the bank. The pecuniary circumstances of Mr. Kelley, his occupation, liabilities and obligations, absolute and contingent, and his resources and means of meeting and settling his obligations, would go to show that he was not solvent at the time of making the deed. The settled rule in this state is that at the time of the conveyance the debtor must have ample property within reach of creditors to pay his debts to them. Dosche v. Nette, 81 Tex. 265, 16 S.W. 1013; Maddox v. Summerlin, 92 Tex. 483, 49 S.W. 1033, 50 S.W. 567; First State Bank Trust Co. v. Walker (Tex.Civ.App.) 187 S.W. 724. Every debt or claim that can be enforced in the courts can be taken into consideration in determining insolvency. Dodson v. Kennedy (Tex.Civ.App.) 247 S.W. 310. This would include the judgment for $225 offered in evidence, for a judgment is nevertheless a debt, although dormant for lack of issuance of execution.
The second point urged is that the writ issued and commanding the sale of the land was void and should have been set aside because it was not, as required by article 3783, R.S., in conformity to the judgment on which it was issued. This point is considered in the light of the conclusion that the deed to Mrs. Kelley was void. The judgment on which the writ was issued recited, as provided by article 301, R.S., that there was "the issuance and levy of the writ of attachment on the land" specifically described. It did not, as stated in the writ in question, direct a "foreclosure of the attachment lien," and did not order that "the property be sold as under execution in satisfaction of said judgment." It is believed that the trial court has correctly decided the point presented for review. The appellants do not claim that the judgment is void and unenforceable through legal process. The judgment on which the writ is founded is not void, but is in legal form and valid; and a legal writ could properly issue thereon authorizing it to be enforced. Therefore relief by injunction may not be granted to appellants against any sale at all of the land. In the premises the only relief the court could grant would be merely to vacate or quash the particular writ because of a material variance between it and the judgment; and in this case the trial court was without authority, as he properly concluded, to grant such relief, because an application merely to restrain or quash the writ was required to be presented to the county court whence it issued. One court of record may not entertain an application merely to set aside or quash the process or writ of another court of record. Article 4656, R.S.; 1 Freeman on Execution (3d Ed.) § 75, p. 290; Godfrey v. Lackey (Tex.Civ.App.) 129 S.W. 1145; Matthews v. Eyres (Tex.Civ.App.) 206 S.W. 963; Landa Cotton Oil Co. v. Watkins (Tex.Civ.App.) 255 S.W. 775.
The judgment is affirmed.