Iglehart v. P. J. Willis & Bro.

West, Associate Justice.

The court erred, under the state of the pleadings and the proof in the case, in giving judgment in favor of the appellee Wallace against the appellants. His claim on the fund sought to be subjected to the payment of the creditors, who are before the court, was not, it appears from the evidence, entitled of itself on its face to any preference over that of the appellants. His transfer or deed of trust upon the goods, that were afterwards attached in the hands of the appellants by the other appellees, recognized on its face the right of appellants to satisfaction before his claim should be paid. He was when his deed was made, fully in possession of all the facts concerning the financial condition and secret transactions of Owens with reference to his creditors. The record shows that Owens was his banker, and that in addition to the notes against Mrs. York and others, secured in the deed of trust in his favor,that were delivered by him to Owens, that he was also at that time a creditor of the insolvent, and that after the date of all these transactions, that Owens paid him this debt that was not secured by the deed of trust.

It is not perceived, under the facts proved in this case, why the court should hold that the appellee Wallace was in a better condition than the appellants, or if he was, that judgment should be rendered in his favor against the appellants, to the partial exclusion of the other appellees. The appellants had executed no bond to him. Furthermore, the mere fact that the appellants by their deed had obtained a preference over creditors equally meritorious, or that the transfer to them had the effect of hindering or delaying other creditors in the collection of their just debts, and was so intended by Owens, would not of itself, if the transaction was in truth bona fide on the part of appellants, necessarily vitiate their transfer. Frazer v. Thatcher, 49 Tex., 30. Such a deed may be undoubtedly shown by proof to be fraudulent in fact, however fair it may appear, on its face; but the justice of the findings of the court, to the effect that the deed in favor of Wallace was valid and made bona fide, and that the deed of trust to appellants was made in fraud of the rights of creditors, cannot be said to be plainly manifest from the evidence.

[Opinion delivered January 16, 1883.]

For the error of the court under the circumstances, in holding that the deed to Wallace had a claim on the goods attached superior to that of the appellants or the other appellees, under the facts presented in the record, the judgment must be reversed.

The right of the appellee Wallace to intervene at all in a statutory proceeding of this character has not been assigned as error or discussed by the appellants, though raised in the court below by both parties, and brought in question here by the other appellees; and on that point it is unnecessary to pass. The other appellees have assigned errors as against their co-appellee Wallace, and have discussed them, but the appellants alone have given bond and brought the case here. On another trial the questions argued by appellees may not arise, and it is therefore not deemed necessary to inquire into them. The judgment is reversed and the cause remanded.

Reversed and remanded.