Moore, J.
The judgment in this case, as between the original parties, Helen Belt the claimant, and Henry Raguet the plaintiff in execution, is clearly correct. The deed from S. T. Belt, the husband of the claimant, to Owen Taylor her father, and the simultaneous conveyance of the property by him, by deed of gift to the claimant, was prima facie a fraudulent device on the part of S. T. Belt, to hinder and delay his creditors. It was not controverted by the claimant, that this was his object and purpose; but it was insisted that the grantee, Taylor, was not shown to have known or to have participated in this intention, ar.d that his title could not, therefore, be questioned by the creditors of his grantor. The principle here invoked evidently has no application to this case. It is an elementary rule that the fraud of the grantor taints the conveyance, except as to purchasers for a valuable consideration. The mere acceptance of the deed without a valuable *479consideration for its support, is evidence of a participation in the fraudulent intent of the grantor. And when the fraudulent purpose of the giantor is shown, those who claim under the conveyance can only rebut the presumption of their participation in the fraud, and escape its effects, by actual or presumptive evidence that they are purchasers for a valuable consideration. (1 American Lead. Ca., 88.) The conveyance from Belt, who it is shown was largely indebted, to Taylor, and deed of gilt from the latter to Mrs. Belt having been executed simultaneously, are to be viewed as a single transaction, which of itself manifests the fraudulent intent of the grantor to secure his property against his creditors. There was no effort, in the court below, to repel this presumption. On the contrary, if there were any doubt about it, the testimony is ample to establish the fact, that the whole arrangement was for the purpose of securing the property against Belt’s creditors; that Taylor paid no consideration whatever for it, and was unable to have purchased the property conveyed to him at a reasonable or fair price. And for the purpose of showing this, and the object and purpose of the parties in executing the conveyances, the court properly admitted the evidence touching the pecuniary ability of the parties, and the cotemporaneous conveyances between them respecting other property claimed by Belt. (Green v. Banks, 24 Tex., 508" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/green-v-banks-4889649?utm_source=webapp" opinion_id="4889649">24 Tex., 508.)
In the case of Reynolds v. Lansford, (16 Tex., 291,) it is said, that the wife, under a fraudulent conveyance from her husband, acquired a title by limitation against his creditors; but to do so, it is said, the title under which she claims- must have been duly recorded for the time prescribed by the statute. As,' however, the facts then before the court were not sufficient to give title to the wife by limitation under the rule recognized by the opinion in that case, we take occasion to say (without at present denying it® correctness) that we do not feel ourselves bound by this doctrine, although sanctioned and supported by the high authority upon Which it rests. But even if we concede the principle enunciated in this case to be correct, Mrs. Belt has- failed to bring herself within its protection, and the case may be justly cited as an authority against her claim. The negroes upon which Raguet’s. *480execution was levied, were presumptively community property; and even the record of the bill of sale to her does not contradict Or militate against this conclusion. But, if it did, the bill of sale had not been recorded two years before the levy of the execution. It is insisted, however, that the presumption of community interest in the negroes arising from the purchase during coverture, is repelled by proof that they were paid for with „ money received from land belonging to the separate estate of Mrs. Belt. And although, as we have seen, the conveyances under which Mrs. Belt claims the land in question, as her separate property, were fraudulent and void as to Raguet, who was a creditor of Belt at the date of their execution; and although the deed from Taylor to her was not recorded until after the levy of Raguet’s execution, it is insisted that, as ten years from the execution of the deeds under which she claims had elapsed previous to the levy of the execution, she had acquired a perfect and indisputable title to the property as against Raguet, by the statute of limitations. This assumption is evidently unsupported by any thing that is found in Reynolds v. Lansford: on the contrary, it is clearly disaffirmed by the decision in that casei The land now claimed as Mrs. Belt’s separate property was a part of Belt’s headright, and was, therefore, originally either community property or his separate estate. At the time of the conveyance to Taylor, Belt’s homestead was upon his headright, and has continued so until the trial of this case; but it does not appear that that part of his headright league conveyed to Taylor included his homestead, and in view of the object of the conveyance, it is hardly to be presumed that it did. And, if not, it does not appear that the land conveyed to Taylor has been in the actual possession of any one, without which, of course, there could be no title by limitation. On the other hand, if the -tract conveyed included that part in the actual occupation of Belt and wife as their homestead, it will have to be admitted that there was no apparent or visible change in the nature or character of the subsequent possession; and it certainly cannot be held that such mere continued possession will operate, under a secret fraudulent Conveyance from the husband to the wife, to bar and conclude his Creditors. A fraudulent conveyance is declared void by the *481Statute, as to the creditors of the fraudulent grantor. As a necessary consequence, no length of possession by the debtor has any effect upon the rights of the creditor, so long as his debt remains unsatisfied, and his remedy for its collection is not lost by his laches; and as. the fraudulent vendee gets no title against the creditor by the conveyance, he can only bar his recovery by such adverse possession as will give him title. When, as between husband and wife, there is no visible change in the control and apparent ownership of property, it seems difficult to perceive by what fiction of law she can divest the title out of the. husband by limitation. In this case the fact of her claim was not brought home to the creditor, nor was implied notice given of it by the record of her title, if it would have that effect. Both in law and fact the possession, to whatever extent it was held, was in the husband; and Mrs. Belt has shown neither an inception of title or possession, in aid of which the statute of limitations could be invoked. The charge upon this point, given by the court below at her request, is erroneous and inappropriate to the case, and should have been refused; but it furnishes her no ground of complaint. Neither is the fact that it contradicts the instructions previously given to the jury, a sufficient reason for the reversal of the judgment. When inconsistent or contradictory charges are- given upon a matter material to the issue, and especially when there is a controversy about the facts, and the jury may have been misled, a new trial will be granted. (Graham & W. on New Trials, 800.) But there is no room for doubt or controversy as to the facts on this branch of. the case.. The error of the court was at the instance and in favor of the appellant, and she can not complain of it.
It seems that the party upon whom the burthen of proof rests, should have the opening and conclusion of the argument to the jury. (Latham v. Selkirk, 11 Tex., 314" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/latham-v-selkirk-4887924?utm_source=webapp" opinion_id="4887924">11 Tex., 314.) But we are of opinion that a mere error of practice on a question of this kind, and from which, it is evident from the record, no injury has resulted to the appellant, affords no sufficient grounds for a reversal of the judgment. In a case of contested facts, when the opening and conclusion of the argument to the jury may be a matter of substantial *482right, such an error might and probably would be sufficient to require a reversal of the judgment.
It only remains to dispose of the branch of the case between Raguet the plaintiff below, and the intervener H. W. Bendy, and Bendy, McDaniel & Hyde, and G. W. Van Vleck. These parties came into’ the case in the court below, not for the purpose of claiming the property levied upon by the plaintiff, but to assert that they respectively held liens upon it superior to that acquired by the plaintiff. It is evident, if the intervenors held valid and subsisting liens upon the property in dispute, that their rights-could not be affected by its condemnation in this suit in satisfaction of Raguet’s execution. Even if a sale under the execution to an innocent purchaser would have had this effect, it could have been avoided by giving notice of their lien at the time of sale. And it is therefore manifest, that a mere lien upon the property as a security for a debt, without the right to the possession or control of the property, and when it is not shown that the rights of such a party will in any manner be impaired or endangered by a levy and sale under the plaintiff’s execution, furnishes no ground for the interposition of a claim for the trial of the right of property. (Wootten v. Wheeler, 22 Tex., 838.) And if a party could, under any circumstances, interpose for the assertion or protection of his lien, it would seem more consonant with principle that he should do so by appeal to the equitable powers of the court, in the exercise of its general jurisdiction, than by a resort to the statutory remedy for the trial of the right of property. But it is evident they should not, by a resort to either remedy, be-permitted to impede or stay a plaintiff’s execution without the oath and bond required in cases for the trial of the right of property, or to enjoin an execution. The present case furnishes a sufficient illustration of the impropriety of permitting this to be done. As we have seen, the judgment in the court below was properly rendered against the original claimant, Mrs. Belt. It might be reversed, however, as to the intervenors, and the litigation continued indefinitely on their part, without either oath or bond; and thus, although the plaintiff would encounter all the embarrassment and delay in the collection of his execution that would have arisen *483from an original interposition of claims by them for the trial of the right of property, if successful in the final result, he might still lose the statutory security, as well as the compensation intended to recompense him for the delay in the enforcement of his execution.. We are of the opinion, therefore, that neither of the intervenors having shown any sufficient reason for their intervention in this case, "and not having made oath or given bond as required by the statute in cases for the trial of the right of property, the plaintiff’s motion to dismiss their petitions to intervene should have been sustained.
It is therefore ordered by the court, that the judgment in favor of H. W. Bendy, as intervenor against the plaintiff below, Henry Raguet; and, also, the judgment in favor of said Raguet against the intervenors, Bendy, McDaniel & Hyde, and G. W. Van Vleck, be, and each of the same are hereby reversed; and this court proceeding to render such judgment as should have been rendered in the court below, it is ordered, adjudged and considered, that the petitions of said intervenors be respectively dismissed ; and that said Raguet have and receive of and from them, all costs occasioned thereby 'in this court, and in said District Court. There being no error in the judgment in favor of the plaintiff below against Helen Belt, the claimant, it is in all things affirmed.
Judgment rendered.