Fitzgerald v. Brown, Smith & Marsh Bros.

We agree with the trial court that the testimony did not show a valid gift to Rachel J. Moore by F. A. Moore of his interest in the real property referred to in the statement above, and therefore overrule the contention of appellant to the contrary.

But we do not agree with said court in his conclusion that an effect of the service of the writ of garnishment was to create a lien in appellees' favor on the money in appellant's hands as trustee, and to entitle appellees to have same applied toward the satisfaction of their judgment against F. A. Moore.

The conclusion was predicated upon testimony showing that, when he was advised of the sale of the property by Mrs. Moore to Mrs. Darby and McKenna, F. A. Moore acquiesced therein, and conveyed his interest in the property to her vendees; on testimony showing that F. A. Moore was insolvent at the time he so conveyed; and on testimony showing that the money deposited by Mrs. Darby and McKenna with appellant as trustee represented the proportionate part, at the price Mrs. Moore sold the property, of F. A. Moore's one-sixteenth undivided interest therein.

As the trial court construed it, the effect of the testimony referred to was to show that F. A. Moore owned the money in appellant's hands as trustee, and undertook, while insolvent, to give it to Mrs. Moore. If the testimony meant that, the conclusion of the trial court in question was not erroneous, for F. A. Moore could not, while he was insolvent, give his interest in the property to Mrs. Moore or to any one else. Article 3967, Vernon's Sayles' Statutes. So the correctness of the court's conclusion depends upon whether the testimony warranted a finding that the money belonged to F. A. Moore or not.

It appears without dispute in the testimony that F. A. Moore never had anything whatever to do with the negotiations resulting in the contract covering the sale of the property by Mrs. Moore to Mrs. Darby and McKenna. It was after those contracts were made, and at the request of agents of Mrs. Moore, F. A. Moore testified, and, for the purpose of clearing the title to the property in her vendees, he testified further that he executed the deeds conveying his interest in the property to Mrs. Darby and McKenna. He testified further that he never had any understanding or agreement with Mrs. Moore, Mrs. Darby, McKenna, or any one else, that he was to be paid anything for his interest in the property, and that he was never, in fact, paid anything therefor; and, further, that he never had anything to do with, or knew anything about, money being deposited with appellant by Mrs. Darby and McKenna on account of the property until long after the deposits were made. He testified further that, while the title to an interest of one-sixteenth, undivided, in the property passed to him when his brother William died, he never claimed same, but wanted Mrs. Moore to have it; and further, that he never claimed to own or to be entitled to the money, or any part of it, in appellant's hands. The testimony of said F. A. Moore referred to was not contradicted in any material particular by any other testimony before the court, but, instead, was strongly corroborated by such other testimony.

Treating said testimony as true, as we think we should, it not only, as we view it, fails to show that the money in appellant's hands as trustee belonged to F. A. Moore, and was by him given to Mrs. Moore, but it shows that what said F. A. Moore undertook to do when he made the deeds to Mrs. Moore's vendees was not to sell his interest in the property to Mrs. Darby and McKenna and give the proceeds of such sale to Mrs. Moore, but, in conformity to the desire it appeared he had all along entertained that Mrs. Moore should have his interest in the property, to ratify the sale made by her of his said interest and perfect in her vendees the title thereto which she had undertaken to convey to them.

If that was the effect of the testimony, and we think it was, then F. A. Moore never sold or agreed to sell, and never in any effectual way authorized any one else to sell, his interest in the property. If he did not sell, or in an effectual way authorize any one else to sell, his said interest, then no one owed him anything on account of it. If no one owed him anything on account of the property, then the money in appellant's hands did not belong to him, but belonged either wholly to Mrs. Moore or partly to Mrs. Darby and partly to McKenna. In that view of the case, appellees' remedy was not by garnishment proceedings against appellant to subject the money in his hands to their judgment against F. A. Moore, but was by other proceedings to subject F. A. Moore's interest in the real property to their said judgment.

The conclusion of the trial court to the contrary of the one we have reached was predicated on the ruling of the Supreme Court in Owosso Carriage Sleigh Co. v. McIntosh Warren, 179 S.W. 257,107 Tex. 307, L.R.A. 1916B, 970. In that case it appeared that one Sweet, a merchant, sold his stock of goods to McIntosh Warren in violation of the "Bulk Sales Law," and that, before the writ of garnishment was served on them, McIntosh Warren sold the goods to other parties. The sale to McIntosh Warren being void, the court held that they acquired no title to the goods, and that, having converted the goods by selling same, they held the proceeds of such sale as trustee for Sweet's creditors, and therefore were liable in the garnishment proceedings prosecuted against them by one of said creditors.

A difference between that case and this one lies in the fact that there the property unlawfully sold to McIntosh Warren was personal property, and therefore subject in their hands to garnishment as "effects" of the defendant Sweet, while here the property unlawfully given to Mrs. Moore was real property, and therefore not subject to garnishment in any one's hands as "effects" of the defendant F. A. Moore. 28 C.J. 189. Had F. A. Moore, intending to give it to her, conveyed his interest in the property to Mrs. Moore instead of her vendees, it could not have been subject to appellees' judgment by garnishment proceedings against her, as could the goods belonging to Sweet in McIntosh Warren's hands. And, had Mrs. Moore, after such interest was conveyed to her, sold it to Mrs. Darby and McKenna, she would not have been in the attitude of a converter, as McIntosh Warren were when they sold the goods belonging to Sweet, for real property is not subject to conversion as personal property is. Berry v. Hindman, 129 S.W. 1181,61 Tex. Civ. App. 291. Had the property been conveyed to Mrs. Moore as suggested, and had she afterwards sold it, we do not think the proceeds of such sale in her hands would have belonged to F. A. Moore. Unlike Sweet in the case referred to, F. A. Moore never sold his interest in the property he owned to any one, and no one ever owed him anything on account of it. That being true, we are unable to see in the facts of the case how the money in appellant's hands could have belonged to him.

We think the judgment should have been in appellant's favor. It will be reversed, and judgment will be here rendered that appellee take nothing by its suit against appellant, and that appellant recover of appellee his costs in this behalf expended, including $50 as the reasonable compensation he is entitled to on account of appellee's suit against him. Article 307, Vernon's Sayles' Statutes. The trial court found the amount to be $150 instead of $50, but the prayer of the garnishee was for the latter sum. Fields v. Rust, 82 S.W. 331, 36 Tex. Civ. App. 350.