126 S.W.2d 703 | Tex. App. | 1939
This suit was brought by Goodwyn Phillips against W. M. Horsley and his mother, Mrs. J. C. Horsley, to set aside a conveyance of land from the mother to the son on the ground that the same had been made for the purpose of defrauding Mrs. Horsley's creditors. A trial before the court without a jury resulted in judgment for plaintiff. The defendants sued out this writ of error.
The trial court filed findings of fact in which it was found that on the 18th of October, 1927, Phillips recovered a judgment against Mrs. Horsley for the sum of $607.42 and costs of suit. This judgment was properly abstracted but became dormant because of failure to issue execution within twelve months. On September 19, 1932, Mrs. Horsley, who was insolvent, for a cash consideration of $1,000, conveyed to her son, W. M. Horsley, her undivided one-half interest in the land in question for the purpose of defrauding her creditors. W. M. Horsley was familiar with her purposes. He paid approximately the value of the property. The deed to him was recorded on September 20, 1932, in Erath county, where the land was situated. The parties all resided in Hamilton county. At the time of the conveyance, the land was occupied by another son of Mrs. Horsley who owned an undivided interest therein. He continued to occupy the land for himself and as tenant for the other joint owners for a year or two after the conveyance, but was later replaced by another tenant who cultivated the land for the joint owners. On February 18, 1937, Phillips brought this suit to set aside the conveyance from Mrs. Horsley to W. M. Horsley. On April 24, 1937, he caused his judgment against Mrs. Horsley to be revived.
Plaintiff in error's first proposition is that the judgment held by Phillips against Mrs. Horsley was insufficient to *705
support an action to cancel the conveyance, because said judgment was dormant at the time the conveyance was made. It was held in Kelley v. Stubblefield, Tex. Civ. App.
The second proposition is that plaintiff's cause of action was barred by limitation. This contention is based on the fact that the deed of conveyance had been recorded for more than four years at the time this suit was filed. Suits of this kind are regulated by the four year statute of limitations. R.S. art. 5529; 20 Tex.Jur. 486; Eckert v. Wendel,
We think there was evidence to support the trial court's finding that W. M. Horsley accepted the conveyance of the property with knowledge that Mrs. Horsley intended thereby to defraud her creditors. The conveyance was therefore void as to Mrs. Horsley's creditors. R.S. art. 3996, Vernon's Ann.Civ.St. art. 3996; 20 Tex.Jur. 405.
The judgment of the trial court is affirmed.