Frazer v. Thatcher
49 Tex. 26
Tex.
1878
Check Treatment
Gould, Associate Justice.

There are but three points covered by the assignments of error, and none other will be considered. •"

Reversing their order, and commencing with the third, the question presented, is whether the verdict was unsupported by, or contrary to, the evidence. There were but two material issues of fact: 1st. Was the conveyance from Montgomery to Mrs. Thatcher fraudulent; or was it merely such a preference of one creditor over others as was legitimate ? 2d. Was the deed from Mrs. Thatcher to Montgomery placed in the hands of Cook to be used by him only for a special purpose, and without any intention of vesting in Montgomery any other or beneficial title ? By their verdict, the jury determined these issues of fact against the plaintiff; and we think that the evidence justifies the action of the court below in refusing to disturb that verdict.

The second error assigned, is that the court erred in refusing to charge the jury, “ That if, at the time of the conveyance from Montgomery to Mrs. S. M. Thatcher, Mrs. Thatcher knew the embarrassed condition of W. W. Montgomery, and if the conveyance wras made to defraud his creditors, then the fact that Mrs. Thatcher paid a valuable consideration does not divest the. transaction of fraud and covin, and the land was subject to W. W. Montgomery’s debts, and the law of the *30case is with the plaintiff; and you will so find.” The objection to this charge, is that if Mrs. Thatcher knew of'the embarrassed condition of her brother, she is denied the privilege of making with him a fair trade, for the purpose of securing payment of her honest debt against him. Surely, although she knew Montgomery .to be insolvent, she might fairly and legally secure for herself a preference over other creditors, provided she did not come within the prohibitions of the Bankrupt law; and this, too, even though Montgomery’s object may have been to defeat his creditors, unless she was chargeable with notice of that fact.

The charge asked was rightly refused.

The remaining assignment of error, is “That the court erred in its charge to the jury, that if the reconveyance by Sarah M. Thatcher of the land sued for, to her co-defendant, was for the purpose of enabling her and her brother to raise money for the relief of their other, brother, that such recon-‘ veyance did not divest her of the title to the land, nor vest it in her co-defendant.”

The purport of this charge was to direct the jury to consider the object for which the deed by Mrs. Thatcher was made and placed in the hands of Cook, in determining whether its effect was to make the land subject to the execution. The appellant assumes that if the deed took effect, and passed the legal title to Montgomery, the land was thereby made subject to his debts; and that it was inadmissible to look behind the deed, to its consideration and object, for the purpose of showing that the equitable ownership was still in Mrs. Thatcher. But the law, except as varied by the regis- • tration statutes, is, that a judgment lien is subject to every equity against the land in the hands of the judgment debtor, at the time of the rendition of the judgment. (Blankenship v. Douglass, 26 Tex., 228, and authorities there cited.)

The equitable rights of Mrs. Thatcher in the land would be protected from sale under judgment and execution against Montgomery, unless, under the registration law, those rights *31are subordinated to the claim of a creditor or innocent purchaser. As no question in regard to the effect of the registration law has been raised in this casé, it is fair to assume that the plaintiff’s claim could not be strengthened by showing that any lien was acquired by Brown, either as creditor or purchaser, without notice of Mrs. Thatcher’s equities. It is enough to respond to the question presented by the assignment of error. The response is, that only the actual or beneficial interest of W. W. Montgomery was subject to the execution, and that the court did not err in directing the jury to. look to the purpose of the reconveyance; and that if that was merely to facilitate the loan, the title did not vest in Montgomery so as to be subject to sale.

The judgment is affirmed.

Affirmed.