70 Tex. 162 | Tex. | 1888
At a sheriff’s sale, made by\; virtue of an execution in favor of the State of Texas against, , Charles Koertge, the appellant Miller became the purchaser of' , the lands in controversy in this suit. The sale was made on ithe first Tuesday in March, 1885. The title to the lands was originally in Charles Koertge, but Herman Koertge, his son, claimed to have purchased them for a valuable consideration , before the sale and before the levy of the execution. Appellant having obtained a judgment in a suit of forcible entry and im-j lawful detainer, the other parties to which are not shown by]
The deed from Charles to Herman Koertge bore date December 1, 1883, but was not' acknowledged and recorded until the twenty-seventh of February, 1885. It purported to be for the consideration paid of four hundred and seventy-five dollars. The execution under which appellant claimed was levied on the ninth of February, 1885. -Charles Koertge testified that his conveyance to his son was bona fide, and not for the purpose of defrauding his creditors. There was evidence, however, tending to show that it was fraudulent as to creditors, and also that in fact it was executed after it bore date, and after the levy of the execution. There was also evidence going to show that the sheriff never made any demand upon Charles Koertge for a levy , and that the sale under the execution was not advertised for i twenty days. Upon these points, however, there-was also conflict. The value of the property, as sworn to by the witnesses, varied from about two hundred and fifty to one thousand five •hundred dollars. The weight of the testimony seems to be that ¡the value was largely in excess of the bids of the appellant.
Such being the issues and evidence, the court, among other finstructions, charged the jury as follows: “If you are satisfied from the evidence that plaintiffs are the widow and children of
In Pearson v. Hudson, 52 Texas, 352, the grantor had conveyed property in trust for his children, which was at the time .subject to the lien of a judgment against him, and the property having been sold by virtue of an execution issued on the judgment, the grantees were permitted to set up the inadequacy of price growing out of irregularities in the levy, and to have the sale avoided. But in that case the court below found that the • conveyance to the trustee was not fraudulent, and the finding was approved by the Supreme Court. What would have been the ruling if the conveyance had been fraudulent, the opinion does not intimate. Being without authority, we must resort to general principles. The language of the statute in reference to fraudulent conveyances is that such conveyances “shall as to .such creditors * * * be void.” But it is universally held that by this is not meant that the conveyance is absolutely void—that is to say, null to all intents and purposes as to the
If he proceed by attachment and seize personal property, al-, leged to have been fraudulently transferred by his debtor, and his debtor sue for the trespass in order to justify, not only must the attachment be produced, but it must be shown that he is a. creditor of the fraudulent vendor, and that he took the necessary preliminary steps which authorize the issuance of the j writ. (1 Thornburgh v. Hand, 7 Cal., 554; Noble v. Holmes, 5 Hill, 194; Damond v. Bryant, 19 Mass., 411; Sanford v. Wiggin, 14 N. H., 441.)
These instances are sufficient to illustrate the principle that' the creditor is strictly limited to the right to subject the property fraudulently conveyed to the payment of his debt by the regular course of judicial prudence. He is certainly not entitled to any surplus that may remain after the satisfaction of his debt; nor is the fraudulent grantor, for as between him and the grantor the conveyance is good. In Zuver v. Clark, 104 Pennsylvania State, 222, the Supreme Court of Pennsylvania say: “Should a surplus remain after paying the debts it would belong to the grantee, for the grantee’s title only fails so far as it stands in the way of the creditors.” It follows from the principles announced, that in our opinion, the fraudulent grantee is substituted to the rights of his grantor in the prop* erty conveyed, and that it is subject only to the claims of the latter’s creditors, and that it is his right to demand that they shall pursue strictly the procedure provided by law for the en forcement of their claims. If by reason of irregularities in the proceeding, the property be sacrificed—that is sold for a grossly ¡inadequate consideration, by a proper procedure he can have ¡ the sale set aside. He has a right subordinate only to the claim i of the creditors, and no court so far as we are advised has gone | to the extent of holding, that because of his participation in a ¡fraud this right is placed beyond the pale of legal protection, i The case last cited holds that he may show that the sale is void land defeat a recovery of the property, and we think he should (be permitted upon similar grounds to set aside a voidable sale-
We conclude that the court did not err in submitting the questions of irregularity and consequent inadequacy of con-' sideration to the jury; but we think the charge should have gone further and instructed them what was meant by irregularities in the sale.
Appellant introduced evidence showing that an abstract of the judgment under which he claimed had been recorded before the date of the deed from Charles to Herman Koertge; but did not show that it had ever been indexed as the law requires. He now complains that the court erred in instructing the jury that the judgment was not a lien upon the land from the time of recording the abstract, and bases his assignment upon the proposition that in the absence of proof to the contrary the presumption is that the clerk did his duty and properly noted the abstract in the index. But the index being matter of record, could have been readily proved, if it existed. In such a case remote presumptions are not to be indulged. The legal inference is that the appellant would have proved the indexing of the abstract if an index had in fact been made.
The fifth assignment of error is that “the court erred in refusing to give the charge asked by this defendant, to the effect that if the alleged inadequacy of price bid and paid by Miller for the property was occasioned by the fact that Herman Koertge, by putting on record the deed for the property from Carl Koertge to him, thereby caused said property to bring an inadequate price at the sheriff’s sale, then his heirs in this suit could not be heard or allowed to take advantage of such inadequacy of price to set aside said sale, and erred in failing to give any equivalent charge.”
This assignment is well taken. The deed from Charles Koertge to Herman Koertge being upon record, was well calculated to depress the price of the property and to cause it to sell for a song. If this deed was fraudulent, and if it was in fact the cause of the low price at .which the property was sold, the sale should not have been set aside for inadequacy of consideration. This is expressly decided in the case of Daniel v. McHenry (4 Bush., Ky., 277).
The other questions presented in the brief of appellant are not likely to arise upon another trial, and need not be determined. But we consider it proper to say that in our opinion, in
For the errors pointed out the judgment is reversed and the cause remanded.
Beversed and remanded.