Holden v. McLaury

Watts, J. Com. App.

But one question is presented by the record for determination, and that is, does the appellant, by the allegations in his petition, show himself entitled to maintain the suit to vacate the asserted fraudulent conveyance?

Our statute provides that every conveyance, etc., made “ with the intent to delay, hinder or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void.”

In the case of Cox v. Shropshire, 25 Tex., 113, the court below decreed a cancellation of a conveyance as fraudulent under the statute as against an asserted claim for damages growing out of the malpractice of a physician. The supreme court affirmed the judgment, without even alluding to the character of the claim.

In Jackson v. Myers, 18 Johns., 427, which was a similar case to this, it was said, “ considering the broad expressions in the statute, that conveyances to defraud creditors and others of their just and lawful actions, damages and demands are void, I think it is competent for the lessor of the plaintiff, who purchased under the execution of Morse v. Adsit, to object that the deeds relied on by the defendant are fraudulent and void, on the ground that the action of Morse v. Adsit, although founded in malificio, is within the spirit, words and meaning of the statute, and, consequently, that the plaintiff is entitled to judgment.” That decision was afterwards approved in Wilcox v. Fitch, 20 Johns., 472.

Instead of specifying the claims that it includes, our statute uses the words “of what they are or may be lawfully entitled to.” Appellant was then asserting his claim for damages, and it was judicially determined the day after the conveyance was made, that he was “ lawfully entitled to ” a portion of the damages claimed.

It seems clear to us that the statute included and extended its protection to the claim of appellant against Shirly for damages, and that appellant was entitled to a hearing upon the facts alleged in his petition.

We think the judgment ought to be reversed and the cause remanded.

Reversed.

[Opinion adopted October 26, 1883.]