32 S.W.2d 233 | Tex. App. | 1930
Suit by appellant, Alma Hartman, Joined by her husband A. P. Hartman, to enjoin the sale of lots 7 and 8 in block 47 of the city of Taylor, levied upon to satisfy a judgment against A. P. Hartman in favor of his divorced wife, appellee Ethel Boyd Hartman, which judgment for $2,000 represented appellee's expenses for support and maintenance of the three minor children of the marriage from February 8, 1926, to February 8, 1928, their custody having been awarded to her by the divorce decree.
Appellant Alma Hartman claimed the property levied upon as her separate property under a deed dated May 6, 1927, executed by A. P. Hartman, for a recited consideration of $5 and love and affection. Appellants also testified to an antenuptial agreement made in consideration of marriage in 1920, as consideration for the deed. The court found that this conveyance was made for the purpose of hindering, defrauding, and delaying appellee in the collection of her debt, and for a wholly *234
inadequate consideration, and therefore void, or at least voidable at the instance of appellee, under provision of articles 3996 and 3997 which inhibit such conveyances. The evidence clearly sustains the finding of inadequacy of consideration for the conveyance. The antenuptial agreement made in consideration of marriage, if made, was oral and not acknowledged and attested by witnesses, as required by article 4611, and was therefore void. The recited consideration of $5 was nominal, and, while a mere nominal consideration for a conveyance may be valid as between husband and wife, it is not so with respect to rights of creditors. Article 3997 labels gross inadequacy of consideration for a conveyance with a badge of fraud, as affecting rights of creditors. Rockwell Bros. v. Lee (Tex.Civ.App.)
The evidence also supports the finding that Hartman executed the deed for the purpose of hindering, defrauding, and delaying appellee in the collection of her debt. The fact that both of the appellants and appellee testified that appellee personally had made no demand upon A. P. Hartman to support his minor children until shortly after he executed the deed is not material. Under the law there is a liability resting upon a father of minor children to support them until they reach their majority, and such liability is a continuing one. Gulley v. Gulley,
Nor do we sustain the contention that at least a portion of appellee's debt accrued subsequent to the execution of the deed, and, appellee having blended that portion in one demand, the entire judgment became a subsequent debt and not covered by the statutes against gifts and conveyances for inadequate consideration. Appellee alleged in her answer to appellants' suit that A. P. Hartman was not only indebted to her in the sum of more than $12,000 for the support and maintenance of their three children, but that he knew, as did appellant Alma Hartman, that A. P. Hartman would be further indebted to appellee in other sums for the support and maintenance of their three minor children with each recurring year, and that this transfer was made for the purpose of hindering, defrauding, and delaying appellee in collecting, not only her present debt, but also future sums of money which the said A. P. Hartman would be due to this appellee and to his three minor children. The law is settled in this state that a deed executed upon an inadequate consideration, with intent to place property beyond the reach of, or to hinder, delay, or defraud, either prior or subsequent creditors, and in contemplation of avoiding future debts, is void, notwithstanding the grantor may have had in his hands at the time property amply sufficient to pay all existing debts. Dosche v. Nette,
Under the rule of the Dosche-Nette Case, it will be presumed that Hartman intended by executing the voluntary conveyance for an inadequate consideration to hinder, delay, or defraud appellee and his minor children in the collection of prior or accrued expenses for the children's support; but that as to subsequent expenses until his children reached legal age, which the law obligated Hartman to pay, "the question of intent in executing a voluntary conveyance *235 was one of fact, to be ascertained from evidence either circumstantial or direct, as in other cases." Appellee alleged and proved as above stated that Hartman made the conveyance, not only for the purpose of hindering, delaying, and defrauding appellee and his minor children in the collection of prior or accrued expenses for the children's support, but also their expenses for support in the future until they reached legal age, and with which Hartman was charged as a matter of law.
The judgment of the trial court will be affirmed.
Affirmed.