Renfro v. Renfro , 1935 Tex. App. LEXIS 180 ( 1935 )

On Rehearing.

In her motion for rehearing appellant vigorously attacks our holding that the defense of fraud in the transfer of the note to her was not available because she did not plead it In that connection counsel contend that it was unnecessary for appellant to plead that the note was transferred in fraud of creditors because appellee pleaded it. Such contention is not borne out by the record. Ap-pellee, as defendant, merely pleaded that his conveyance of the note to plaintiff was “with the understanding by and between the parties that the proceeds of the note were to be preserved by Arkansas Renfro, plaintiff herein, and were to be used for the care and support of the said Arkansas Renfro and John E. Ren-fro when they had reached the age that they were no longer self-supporting.” There is not a hint or suggestion in appellee’s pleadings that fraud or any improper motive prompted the transfer. And no inference that appellee intended to plead that the transfer was in fraud of creditors should be indulged. His pleading should be construed, if possible, so as to assert a cause of action for recovery of his community interest in the property. Rogers v.. Rogers, supra. The opinion of the Commission of Appeals in the Rogers Case, which was adopted by the Supreme Court, fully disposes of this contention.

Nor did appellant take the position in the trial court that the transfer was fraudulent. On the contrary, -she contended by pleading and by her testimony that the transfer of the note was bona fide and, therefore, she should recover it as belonging to her separate estate. That issue having been determined against her in the trial court, she would now recover in this court on the theory that the transfer was not bona fide but fraudulent. An appellant may not thus shift his cause of action in the appellate court so as to recover in that court upon a theory wholly different from that upon which he joined issue and tried his ease.

The motion for rehearing is overruled.