The court of appeals in Jimenez v. State, however, found that the charge instruction was erroneous. Jimenez v. State, 992 S.W.2d 633, 638 (Tex.App.-Houston [1st Dist.] 1999), aff'd, 32 S.W.2d 233 (Tex.Crim.App. 2000). The Jimenez court cited our opinion in Green v. State, 839 S.W.2d 935, 946 (Tex.App.-Waco 1992, pet. ref'd).
The relevant inquiry under section 24.03(a) is whether the debtor received monetary, not spiritual, consideration. E.g. Glenney v. Crane, 352 S.W.2d 773, 775-76 (Tex.Civ.App.-Houston [1st Dist.] 1961, writ ref'd n.r.e.) (court compared legal value of the consideration received by the debtor with the value of the property conveyed); Hartman v. Hartman, 32 S.W.2d 233, 234 (Tex.Civ.App.-Austin 1930, writ dism'd w.o.j.) (conveyance for recited consideration of $5 and love and affection is insufficient as against prior creditors). As the Texas Supreme Court pointed out in 1896:
A party who cannot be deemed innocent is in no position to assert laches. Warren v. State, 26 Ala. App. 284, 158 So. 770; Lodahl v. Papenberg, Mo., 277 S.W.2d 548; Brock v. Brock, 281 Ala. 525, 205 So.2d 903; Lindley v. Lindley, 270 Ala. 570, 150 So.2d 746; Hartman v. Hartman, Tex. Civ. App., 32 S.W.2d 233; Franks v. State, 26 Ala. App. 430, 161 So. 549. WRIGHT, Presiding Judge.
The alternative count for recovery of sums the wife had spent for the child's support is not grounded upon or governed by the statute; it alleges a common-law obligation. Bully v. Gully, above. Appellee defends the summary judgment as to this claim for recovery on the contention it is barred by limitation. It is in the nature of an ordinary action for debt and is governed by the two-year statute of limitation, Art. 5526, V.A.C.S. Maxwell v. Maxwell, Tex.Civ.App., 204 S.W.2d 32, 39, writ ref. n. r. e.; Ramsey v. Oliver, Tex.Civ.App., 246 S.W.2d 332, 334, n. w. h.; Dilger v. Dilger, Tex.Civ.App., 271 S.W.2d 169, 170; Hartman v. Hartman, Tex.Civ.App., 32 S.W.2d 233, 234; 21 Tex.Jur.2d Sec. 393, p. 14. The common law duty of, and liability for support extends over the entire period of the child's minority, Gully v. Gully, above, and is not governed by the age limitation in Art. 4639a.
The trial court properly excluded the pre-nuptial contract because it was not witnessed as is required by law. Article 4611, Vernon's Ann.Tex.Civ.St.; Ellington v. Ellington, 29 Tex. 2 (1867); Hickman v. Hickman, 10 S.W.2d 738 (Tex.Civ.App., 1928, n. w. h.); Hartman v. Hartman, 32 S.W.2d 233 (Tex.Civ.App., 1930, writ dism.); Lieber v. Mercantile National
In at least two instances it has been followed. Hickman v. Hickman, Tex.Civ.App., 10 S.W.2d 738; Hartman v. Hartman, Tex.Civ.App., 32 S.W.2d 233. Appellant says that art. 4611, V.A.C.S. is not applicable to oral contracts when the controversy is between the parties to the contract or those claiming under them.
Therefore, as the husband's obligation to the State existed prior to the execution and delivery of the deed, and it was not shown that he had any other property in the State sufficient to satisfy the State's claim, the conveyance was void as to appellee insofar as it attempted to convey any interest belonging to the husband. Revised Statutes, Art. 3997; First National Bank of Ft. Worth v. John Hancock Mutual Life Ins. Co., Tex. Civ. App. 101 S.W.2d 1062; O'Banion, Sheriff, v. Henry, 128 Tex. 59, 96 S.W.2d 233; Hartman v. Hartman, Tex. Civ. App. 32 S.W.2d 233; Kelley v. Stubblefield, Tex. Civ. App. 26 S.W.2d 281; Guaranty B. L. Co. v. Keller, Tex. Civ. App. 104 S.W.2d 889, and cases cited. From what has been said it follows that any right of the wife to prevail must depend upon the status attaching to the property at the time of the deed from Garcia.
It may be conceded that the original conveyance from A. P. Hartman to his second wife on May 6, 1927, was for the purpose of defrauding his creditors, and particularly as against his obligation to support and educate his minor children by his first wife. This was a legal and continuing obligation imposed upon him by law. Gulley v. Gulley, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564; Hartman v. Hartman (Tex. Civ. App.) 32 S.W.2d 233, 234. In this regard, even as against future creditors, his conveyance was fraudulent.
20 Tex.Jur. p. 415, § 56. Neither is one for a merely nominal consideration. Id. § 57; Goolsby v. Manning (Tex.Civ.App.) 270 S.W. 936; Hartman v. Hartman (Tex.Civ.App.) 32 S.W.2d 233. The consideration recited in the deed in question is $10 and love and affection.