29 Tex. 450 | Tex. | 1867
It appears very clearly from the evidence in this case that the conveyance from plaintiff in error to Mrs. Kraeka, was made in fraud of creditors; it was, therefore, void as to them. The only question for our consideration is, can it be enforced by the grantee against the fraudulent grantor?
Our statute of frauds declares such instruments void only as to the parties whose rights may be prejudiced thereby; and it has frequently been held under this statute, that against the grantor, and those claiming under him with notice of the fraud, such conveyances are valid and binding. (Danzy v. Smith, 4 Tex., 411; McLenny v. Floyd, 10 Tex., 166; Robinson v. Martel, 11 Tex., 155; Epperson v. Young, 8 Tex., 135.) And such has been the ruling of other courts upon statutes similar to our own. (7 Johns., 163; 4 Bibb, 65; 8 Porter, 351.)
• There can be no doubt but that the payment of the purchase-money, the delivery of the property, the making and delivery of the deed, and the registration of it as required hy law, would have rendered this conveyance an executed contract. That the purchase-money was paid, and the possession of the articles conveyed given to the grantee, is stated in the deed and acknowledged therein by the grantor himself; and it is also manifest, that the deed was executed, delivered, and recorded according to the forms of the law. It cannot be urged by the grantor, under such circumstances, that no consideration was paid, and no actual transfer of possession made, for the purpose of impeaching the validity of the instrument. The enforcement of such conveyances at the suit of the grantee was doubtless intended as a punishment to the fraudulent grantor for his iniquitous attempt to avoid the payment of his just debts. To allow him to set up the two principal badges of fraud above mentioned, in avoidance of his conveyance, would be to permit him to escape this penalty in almost every instance. He cannot say to the creditor that the property belongs to the grantee, having been purchased by him for a valuable consideration, and that the purchaser holds a regular deed of conveyance therefor, executed, delivered, and recorded, and at the same time say to the grantee, that the deed was fraudulent, that no consideration actually passed, no delivery really took place, and
The question as to how far the courts will go in enforeeing a fraudulent conveyance between the parties thereto, and those claiming under them, has frequently undergone judicial decision in England and America; and it has universally been held, that wherever the conveyance was completed, either by the actual or constructive delivery of the property, the grantee was entitled to recover, though the grantor was in possession of the property at the commencement of the suit, and had been continuously so from the date of the conveyance. And it has been further held, that if the transfer was by deed it would be binding, though no consideration was paid and no possession given. (Chitty on Cont., 362.) As far back as Yelverton’s Reports it was held to be law, that if A grant his goods to B in fraud of creditors, and afterwards die, B could recover the goods from A’s administrator, on the ground, among others, that the deed was void only as against creditors, but that it remained good as against the party himself and his executors and administrators. (Harvey v. Leader, Yelv., 196.)
The right of the grantee to recover rests upon stronger grounds, if possible, where, in addition to an execution and delivery of the deed, a registration of it has taken place; for at least, so far as conveyances purporting to be voluntary are concerned, the statute has made registration tantamount to a delivery of the property. (Lewis v. Castleman, Galveston T., 1864,) [27 Tex., 415.]
In accordance with the doctrine announced in the present opinion are the cases of Danzey v. Smith’s Adm’r., 4 Tex., 411, and Epperson v. Young, 8 Tex., 135. In neither of these cases was there any consideration paid or any actual delivery of the property conveyed, and in the latter the suit was brought by the^fraudulent grantee against the fraudulent grantor in possession. In both the fraudulent conveyance was enforced between the parties.
Whilst we do not decide that there are no cases in which the courts will refuse to enforce a fraudulent conveyance against the vendor in possession at the suit of his vendee, we think that the one now under consideration was properly sustained under the facts and circumstances proved upon the trial.
The verdict of the jury does not find the separate value of each article recovered, but the aggregate value of the whole. This was erroneous, as was decided in the case of Blakely v. Duncan, 4 Tex., 185. The defendant should have the privilege of returning any one or more of the articles recovered, instead of paying its value, and vice versa; but this would be denied him unless the separate value of each article was found.
The charge of the court, authorizing the jury to find more than the value of the properly, in order to insure its return, was erroneous, as has already been decided at this term in the case of Benson v. Pait.
For this error, and the failure of the jury to find the separate value of each article recovered, the judgment is reversed, and the cause Remanded.
The record of this case was not furnished to the Reporter.