218 S.W. 14 | Tex. App. | 1920
If the gift by the husband to the wife of the one-half of the property in suit was legal and not void, then the wife was entitled to recover all of the property instead of only one-half of the same. According to the court's findings of fact the gift to the wife was made "in 1912 or 1914," and according to the court's findings, "R. Fenton became indebted to the defendant, J. L. Miller, on March 25, 1915, for a piano, giving the said Miller two notes." The appellee therefore was a creditor subsequent to the time of the gift in evidence by the husband to the wife. Article 3967, Vernon's Sayles' Statutes, expressly provides that such gift shall not, because merely without consideration and voluntary, be void "as to subsequent creditors," as the appellee was. The appellee therefore cannot attack the gift on that ground. And while the court finds that at the time of the gift the husband "owed eight or ten different parties," there is no finding that the husband was insolvent at the time and could not pay the parties the amounts he owed them. It does not appear in the court's findings that the gift was parol; and therefore, in the absence of further facts, this court must indulge the presumption on appeal that the gift was made in compliance with the law. The opinion in case in
The judgment is reversed and here rendered in favor of the appellant Mrs. Fenton for title and possession of all the property in suit.
