Lehmberg v. Biberstein

51 Tex. 457 | Tex. | 1879

Gould, Associate Justice.

The court instructed the jury to find for the plaintiff if the conveyance by Carl Lehmberg to his children was made for the purpose of hindering, delaying, or defrauding his creditors. Under the pleadings and evidence, it was an issue of fact for the jury whether any part of plaintiff’s claim on Carl Lehmberg was in existence at the time of said conveyance, or whether his entire claim was not acquired subsequently to the conveyance assailed and with notice thereof. Such being the state of the issue as to plaintiff’s right as a creditor to assail the conveyance, the charge given was erroneous, and should have been qualified as asked by defendants in the first and second clauses of the second instruction asked, denying the plaintiff’s right to attack the deed if he was only a subsequent creditor, who had acquired his claim with notice of the conveyance. Such is the established general rule in this State. (Martel v. Hernsheim, 9 Tex., 294; Fowler v. Stoneum, 11 Tex., 479; Lewis v. Castleman, 27 Tex., 407.)

Whether there may not be exceptions to this rule, it is not now necessary to inquire.

For the error in the charge, the judgment must be reversed.

It was objected that the suit should have been brought in the county where the land conveyed was situated. The suit was an equitable procedure seeking the cancellation of deeds, and was rightly brought in the county of defendant’s residence. (Vandever v. Freeman, 20 Tex., 336; Morris v. Runnells, 12 Tex., 177.)

In regard to other rulings of the court on the pleadings and the admission of evidence complained of by appellant, it is enough to say that we have found in them no error.

The judgment is reversed and the cause remanded.

Beverset) and remanded.