J. R. Watkins Co. v. GibbsJ. R. Watkins Co. v. Gibbs
Appellant answered on March 19, 1932, by a plea of not guilty, and by way of special answer and cross-action alleged that it was the owner in fee simрle of the land by virtue of the sheriff‘s deed dated September 1, 1931, and further alleged that the purported conveyance from R. E. P. Gibbs to L. E. Gibbs of January 30, 1928, was voluntary and without consideration, and was executed by R. E. P. Gibbs for the purpose of defrauding his creditors and placing said land beyond their reach, аnd particularly of appellant, the said R. E. P. Gibbs being insolvent at the time and being indebted to appellant; and that said deed was therefore void as to appellant; and that appellee Mrs. L. E. Gibbs had notice and knowledge of all these facts at the time said purported deed wаs executed. Appellant prayed that appellee take nothing by her suit, that the purported deed from R. E. P. Gibbs to appellee be declared null and void, and that the cloud cast upon appellant‘s title by reason of said deed be removed, and that appellant bе quieted in its possession of the land. In the alternative appellant prayed that, if the deed from R. E. P. Gibbs to Mrs. L. E. Gibbs was valid and conveyed any title as against appellant, then appellee‘s recovery, if any, be limited to an undivided one-half interest in the premises, and that appellant rеcover judgment against appellee for title and possession of an undivided one-half interest in the land. In the second alternative, appellant prayed that, if the sheriff‘s deed to appellant be held to be ineffective to convey title to appellant as against appellees, or either of them, then that appellant‘s judgment lien as pleaded in its cross-action upon the interest of L. E. Gibbs and R. E. P. Gibbs, and each of them, to the land be foreclosed, and that the same be sold in satisfaction of the judgment.
By supplemental petition appelleеs answered that the land in controversy from March 22, 1901, to January 30, 1928, was the community property of appellees, R. E. P. Gibbs and Mrs. L. E. Gibbs, and that on the date last mentioned by a deed from R. E. P. Gibbs said land became and was thereafter the separate property of Mrs. Gibbs, and that therefore no title passed to appellant by virtue of the sheriff‘s deed, dated September 1, 1931; that the consideration for the deed from R. E. P. Gibbs to L. E. Gibbs was the sum of $285, which the former borrowed from the latter‘s separate estate many years before, and that the deed was executed for the purpose of reрaying the same; that, at the date of said conveyance from R. E. P. Gibbs to L. E. Gibbs, the said R. E. P. Gibbs was solvent; that at least 74 of the 435 acres in controversy were occupied by and constituted the homestead of appellees at the time of the sheriff‘s sale, and that, as to same, the sale was void; that appellee Mrs. L. E. Gibbs was the owner of the title to the land under the three years’ statute of limitation, in that the deed conveying the land to her was dated January 30, 1928, and that appellant‘s claim to the land as asserted by its cross-action filed March 19, 1932, was barred by the three years’ statute of limitation; and that appellant‘s attack upon the deed of January 30, 1928, duly recorded on that date, from R. E. P. Gibbs to Mrs. L. E. Gibbs, for fraud, was barred by the four years’ statute of limitation.
A trial to the court without a jury resulted in judgment in favor of Mrs. L. E. Gibbs for title and possession of the land in controversy; hence this appeal.
The trial court found and decreed that 80 of the 435 acres of land in controversy were the homestead of appellees at the time it was levied upon under the execution, and that the attempted sale of the 80 acres was therefore void. This portion of the judgment is suppоrted by the undisputed evidence and is affirmed.
The trial court also found and decreed that, since the deed from R. E. P. Gibbs to Mrs. L. E. Gibbs was dated January 30, 1928, and duly recorded on that date, and that since appellant‘s action to annul said conveyance because of fraud was not filed until March 19, 1932, the action to annul the fraudulent conveyance was barred by the four years’ statutes of limitation. Appellant made no attempt to prove that it did not know of the recorded conveyance; and, since its registration is constructive notice of the conveyance, the trial cоurt‘s judgment is sustained. Eckert v. Wendel, 120 Tex. 618, 40 S.W.(2d) 796, 76 A.L.R. 855.
With regard to the claim of title of appellant under the sheriff‘s deed and its suit to enforce its judgment lien against appellee Mrs. Gibbs as grantee in the conveyance, alleged to be fraudulent and void as to appellant as a judgment creditor of grantor, R. E. P. Gibbs, such suits are not barred until Mrs. Gibbs, as the alleged fraudulent grantee, has
The court held that the cross-action of appellant for title and possession of the land and its suit seeking to enforce its existing judgment lien against the same were barred by the three years’ statute of limitation. Appellant attacks this holding, contending that, since the evidence showed the deed from R. E. P. Gibbs to his wife to be void as to appellant, a prior creditor of Gibbs, it did not constitute “title or color of title” because wanting in that “intrinsic fairness and honesty” required by the limitation statutes.
The deed from Gibbs to his wife was in all things regular on its face. It recited a cash consideration of $1,500 and love and affection; it was executed in the manner prescribed by law; and there was nothing in the face of the deed which made it an instrument of title wanting in “intrinsic fairness and honesty.” The deed was valid as between the parties; and the possession of appellee Mrs. Gibbs and her husband of the land under the deed for more than three years was undisputed.
It is settled law that, although a deed by a husband to his wife is executed in fraud of his creditors, if regular on its face and shows no defect which would make it a muniment of title wanting in “intrinsic fairness and honesty,” it is valid as between the parties and constitutes “title or color of title” within the meaning of the three years’ statute of limitation, and that the possession of the wife through her husband of the land is adverse within the meaning of the statutes. De Garca v. Galvan, 55 Tex. 53; Grigsby v. May, 84 Tex. 240, 251, 19 S.W. 343; Evans v. Guipel (Tex. Civ. App.) 35 S.W. 940; Eckеrt v. Wendel, 120 Tex. 618, 40 S.W.(2d) 796, 76 A.L.R. 855; Douglas v. First Natl. Bank, 120 Tex. 631, 40 S.W.(2d) 801. In the last-cited case it is held that a deed of gift, executed in fraud of creditors, constituted “title or color of title” within the meaning of the three years’ statute of limitation. The deed from Gibbs to his wife recited a consideration of $1,500. The evidence showed that grantor intended that thе consideration for the deed was the payment of $285 borrowed from grantee‘s separate estate many years before the deed was executed. This was a sufficient consideration for the deed, if it needed a consideration. It also recited love and affection аs consideration, which indicated a gift of the land by the husband to the wife. Our statutes permit such transfers or conveyances from one spouse to the other. 23 Tex. Jur. 70, § 49. And, if the deed should be regarded as not having a consideration, then the implication of gift arises to sustain its validity as between the pаrties. 23 Tex. Jur. 158, § 128, and cases cited in note 11.
Appellant further contends appellee Mrs. L. E. Gibbs failed to prove a regular chain of title from and under the sovereignty of the soil as required by the three years’ statute of limitation. We sustain this contention. Appellee pleaded her title through а deed from her husband to herself, dated January 30, 1928, through a deed from W. M. Hanscom to her husband, dated March 22, 1901, and through mesne conveyances to Hanscom from the sovereignty of the soil. She only proved the deed from her husband to herself, and the deed from Hanscom to her husband, and the continuоus possession of the land by herself and her husband since they purchased the land in 1901. She made no attempt to prove a regular chain of title to Hanscom from and under the sovereignty of the soil. One claiming title to land under the three years’ statute of limitation must allege and prove a rеgular chain of transfers from and under the sovereignty of the soil. Grigsby v. May, 84 Tex. 240, 19 S.W. 343; Haring v. Shelton, 103 Tex. 10, 122 S.W. 13; Barrera v. Guerra (Tex. Civ. App.) 122 S.W. 902; Saxton v. Corbett (Tex. Civ. App.) 122 S.W. 75. Since appellee alleged that she deraigned title from and under the sovereignty of the soil, but failed to prove the allegation as herein held, the judgment will be reversed and the cause remanded with regard to appellee‘s plea of title by the three years’ statute of limitation.
The court also found that, at the time Gibbs deeded the land in controversy to his wife, they owned as community property 20 head of cattle of the value of $50 per head, and that Gibbs was therefore solvent, and that his conveyance of the land to his wife was not voluntary or fraudulent within the meaning of
The trial court concluded from this undisputed evidence that the 20 head of cattle
The judgment will be affirmed in part, and in part reversed and remanded in accordance with this opinion.
Affirmed in part, and in part reversed and remanded.
On Motions for Rehearing.
Both appellant and appellees have filed motions for rehearing. With the exception of affirming the portion of the judgment decreeing 80 acres of the 435 acres of land in controversy to be the homestead of the Gibbs, we reversed and remanded the cause generally; and many of the grounds urged in the motion for rehearing by appellant are therefore without merit.
We held the evidence insufficient to sustain the findings and conclusions of the trial court that R. E. P. Gibbs was solvent at the time he conveyed the 435 acres of land in controversy to his wife, and that the conveyance did not come within thе inhibition of
Appellees contend in their motion that, since the trial court found that R. E. P. Gibbs intended to execute the deed in repayment of $285, the deed operated as a preferment by Gibbs of his wife as a creditor over other creditors, which he had the right to do. The trial court did not base its judgment upon this theory of title, and appellees have not cross-assigned error because the trial court refused to so render judgment. The rule is well settled that an error not cross-assigned by an appellee is waived. Prairie Lea Production Co. v. Lincoln Tank Co. (Tex. Civ. App.) 294 S.W. 270.
The undisputed facts also show this contention not tenable, because Mrs. Gibbs’ $285 in money and property was used to purchase a different tract of land, because there was no express or implied agreement that the conveyance was in payment of the $285, and because, in any event, it was not shown that the $285 would be a fair consideration for the land, nor was it shown what portion of the value of the land the $285 would represent. Parker v. Coop, 60 Tex. 111; Blum v. Rogers, 71 Tex. 668, 9 S.W. 595; Oaks v. West (Tex. Civ. App.) 64 S.W. 1033.
The motions are overruled.
Overruled.