52 Tex. 406 | Tex. | 1880
The fact that John Pollan ivas considerably indebted at the date of his several voluntary deeds to his children, made prior to that to Minerva Stockley, dated May 11,1876, did not necessarily make those deeds void as to appellant Van Bibber, the judgment plaintiff. •
Such indebtedness would be a badge of fraud and a circumstance, in connection with others surrounding the transaction, to be submitted to the jury to determine whether or not the intention of John Pollan was fraudulent. (1 Story’s Eq. Jur., sees. 858-365, inclusive, and authorities cited in notes.)
Under the decisions of this court, w'here the fraudulent intent is not apparent upon the face of the deed, it is a question for the jury. (Briscoe v. Bronaugh, 1 Tex., 327; Bryant v. Kelton, 1 Tex., 415; Peisor v. Peticolas, 50 Tex., 638.)
The testimony tends to prove that these deeds were executed in compliance with parol gifts of the land made by John Pollan to Ms children years before, when he seemed to have been in prosperous circumstances; that under those parol gifts some of the children soon thereafter had gone into possession of the parts allotted to them, had made valuable improvements, and had paid the taxes thereon, and which, in a proper case, would have entitled them to a decree for specific performance. (Willis v. Matthews, 46 Tex., 478.)
The testimony further tends to prove that at the date of the deeds made in pursuance of these parol gifts, John Pollan had other property subject to execution from which Van Bibber could have made the remainder due on his judgment. He,
Under this testimony, though the defendants ‘may be charged with notice that, the deeds were made without a valuable consideration, even yet we are not prepared to say that they were made to delay, hinder, or defraud creditors, or that the court erred in not thus holding.
The testimony, however, shows that subsequently one of the children to whom a deed of gift had been made died, and that John Pollan inherited from him two hundred and fifty acres of the land, and that he afterwards, on May 11, 1876, made a deed of gift of the same to his daughter, Minerva Stockley. This land at that date was subject to execution against John Pollan, and it appears from his own testimony that he was then insolvent.
By a familiar principle of law, under these circumstances this last-named deed was fraudulent as against the judgment creditor, Van Bibber, and so far as it appears by the record, the court erred in not rendering judgment for the plaintiff for this two hundred and fifty acres of land.
On the trial below, a jury was waived and the cause submitted to the judge presiding, and, under the practice of the court, we could reform the judgment if the facts as shown by the record were sufficiently full for this purpose. The defendants pleaded jointly, and a joint judgment was rendered, from which this appeal was taken. ¡Neither from the pleadings nor testimony have we a sufficient description of the several tracts of land embraced in the different deeds, or of this two hundred and fifty acres, by which the judgment can be reformed with the requisite certainty, and it is consequently reversed and the cause remanded.
Reversed and remanded.
