Couger v. Costello , 10 S.W.2d 746 ( 1928 )

On Appellee’s Motion for Rehearing.

In his motion for rehearing appellee calls our attention to an inaccuráte statement in our opinion. This statement was as follows:

“Appellants failed to prove that Hughes did or that he did not obtain any judgment against Mrs. Couger, but from evidence introduced by appellee we arrive at the conclusion that no judgment was rendered against Mrs. Couger in the Hughes suit.”

A re-examination of the judgment in the district court of Young county, introduced in evidence by appellee upon the trial of this cause, discloses that this statement was inaccurate. The judgment was a very long and complicated one with a great many parties thereto. It covers 42 pages in the transcript. On pages S3 to 35 the court adjudges John Couger to be indebted to J. K. P. HugheS on different notes described, some of which show to have been executed by Couger and his wife. It is not adjudged there that Mrs. Couger was indebted on account of said signature, but on page 58 of the transcript, at a later place in the judgment, it was adjudged that Hughes have and recover from both appellants, Couger and Mrs. Couger, on one of the notes previously described. We make this statement in the interest of accuracy in our opinion.

The inaccurate statement did not affect the decision of this court in any manner. Ap-pellee on rehearing has presented a new question in the case not heretofore suggested in the briefs, but which we referred to in our opinion. His contention is that, since the evidence shows that a judgment was rendered against Mrs. Couger, the agreement pleaded by Couger and wife had the effect of hindering, delaying, and defrauding creditors, and was therefore void as against creditors, and that being void appellants could not be heard to plead or prove such agreement in defense of their notes and deed of trust. It is therefore urged that we affirm the judgment of the trial court on the ground that appellants’ defense was illegal and void. On the other hand, appellant urges that if it should be determined that the note and deed of trust were given for an illegal consideration, it was the duty of the trial court to leave the parties where it found them, and not grant ap-pellee any judgment upon such illegal contract.

The record in this case does not present that interesting question to us for decision. The trial court found that the note 'and deed of trust were based upon a valid consideration. We would not at all be warranted in finding that same was based upon an illegal consideration, in view of the conflicting testimony ,on that issue. We are confirmed in the opinion that the case should be retried, and if, upon retrial, it is determined that the purpose of the deed of trust and note was to hinder, delay, and defraud creditors, and .that same accomplished Such purpose, then there will be presented for determination the question of whether the,court should grant a judgment to Costello upon instruments executed in accordance with such illegal contract, or to deny to Costello any relief thereon.

The motion for rehearing will be overruled.