54 S.W. 777 | Tex. App. | 1900
Lead Opinion
This suit was originally commenced by the Farmers and Merchants National Bank of Waco, against A.N. Schuster and his wife, Lucretia Schuster, A. Judson Cole and his wife, Luda Cole, Mrs. Florence King, August Schuster and D.T. Bomar.
The action is in substance trespass to try title to twenty-seven sections of land in Sterling County, though the plaintiff's petition goes further than the usual form in which that action is brought, and assails the title under which the defendants claim as fraudulent and void.
After the suit was filed, the defendant Bomar sold the land, as trustee, to W.T. Fenton and J.A. Graham, and they were made parties defendant by the second amended original petition.
August Schuster, A.N. Schuster, A. Judson Cole, D.T. Bomar, Mrs. Schuster, Mrs. Cole, and Mrs. King filed disclaimers as to all the land, and the rest of the defendants filed disclaimers as to a three-fourths undivided interest in six sections of the land; and judgment was rendered for the plaintiff in accordance with the disclaimers. This part of the judgment is not complained of and will affirmed. As to the rest of the land, the contest was and is between the bank on one side and Fenton and Graham on the other.
The case was submitted to the jury upon special issues, and after a verdict was returned adjudging the bank to own and recover an undivided three-fourths interest in the land, upon condition that it pay into the registry of the court within ninety days from the date of the decree, the sum of $9964.62, for the defendants Fenton and Graham. Both sides have appealed, but by agreement only one transcript has been filed.
August Schuster is common source of title, the testimony showing that prior to and on December 5, 1893, he and A.N. Schuster owned the 27 sections of land in partnership, the former owning a three-fourths and the latter a one-fourth interest. December 5, 1893, August Schuster executed his deed, reciting a cash consideration of $15,891, and conveying 21 sections of the land to A.N. Schuster; and on the same day August Schuster and A.N. Schuster executed a deed, reciting a cash consideration of $6720, and conveying the other six sections to A. Judson Cole, as trustee for mrs. Lucretia Schuster and the defendants Fenton and Graham derive their title through mesne conveyances from them.
The plaintiff bank asserts title under an execution sale against August Schuster. This sale was made June 4, 1895, and was by virtue of an order of sale issued upon a judgment of date May 4, 1895, foreclosing an attachment lien on the land. The attachment was levied February 28, 1894.
From this it will be seen that the defendants have the older title and must hold the land, unless equitable reasons are shown for setting it aside. This the bank attempted to do by offering testimony tending to show that the deeds executed by August Schuster and by him and *210 A.N. Schuster, of the date of December 5, 1893, were made with the intent and for the purpose of defrauding the bank and other creditors.
The trial court submitted to the jury, among other issues, the bona fides of an alleged debt owing by the firm of August an A.N. Schuster to Mrs. Lucretia Schuster, and claimed by the defendants to be the consideration for the deed executed to Cole, as trustee for Mrs. Schuster, and whether or not, as a consideration for the other deed, A.N. Schuster assumed the payment of certain other alleged firm indebtedness; and also required the jury to make a specific finding as to the value of the land on December 5, 1893.
On the first and second of these issues the jury found in favor of the defendants, and on the third they found the value of the land to be $2.50 per acre. The undisputed testimony shows that in the negotiations between August Schuster and A.N. Schuster, which resulted in the execution of the two deeds of date December 5, 1893, the lands were valued at $1.75 per acre.
The court did not submit to the jury the specific question of intent to defraud creditors in the execution of the deeds referred to, although the bank tendered a special charge submitting that issue; and we have reached the conclusion that the bank's assignment of error complaining of the refusal of this instruction is well taken. We have considered all the other questions presented in the briefs, but this is the only ground for reversal. However, we are unable to concur with counsel for the bank in the proposition that this court should reverse and render judgment for it for the land, free from any charge in behalf of Fenton and Graham. The record does not show, and, under all the circumstances, we do not think the presumption should be indulged, that the court found as a fact that the deeds referred to were executed with intent to defraud creditors. But we agree with the bank that a partnership creditor, as such, has no lien, either legal or equitable, upon partnership assets, and that the assumption and payment by A.N. Schuster of partnership debts, or debts owing by August Schuster individually, did not vest in him any right or lien, superior to that of other creditors. Wiggins v. Blackshear,
As between the plaintiff bank and the defendants Fenton and Graham, *211 the judgment will be reversed and the cause remanded. As between the plaintiff and the other defendants, the judgment will be affirmed.
The costs of the appeal will be taxed against the defendants Fenton and Graham.
Addendum
We have considered the questions presented in appellees' motion for rehearing filed March 27, 1900, and conclude that it should be overruled. Complying with the request that this court file findings of fact, we adopt the answer of the jury to the special issues as such findings.
Applications for writ of error by both appellants and appellee were refused.
Addendum
In this case both parties have filed motions for rehearing. The appellee bank abandons its cross-assignment of error, which was sustained in our former opinion as presenting the only ground for disturbing the judgment. With this assignment abandoned, no reason for reversal exists, unless error was committed in deciding the other points presented by the respective parties.
We have reconsidered the various questions presented by the respective motions, and find no reason to change the rulings heretofore made.
On account of appellee's abandonment of the assignment referred to, the judgment heretofore rendered by this court will be set aside and the judgment of the District Court will be affirmed.
Affirmed.
