Hughes v. Roper , 42 Tex. 116 ( 1874 )

Gould, Associate Justice.

A sufficient answer to the objection that Reece Hughes, sen., ought to have been made a party, is found in the fact that the record does not show that the question was raised in the court below. Objections for want of parties come too late when made for the first time in the appellate court. (Shelby v. Burtis, 18 Tex., 648.)

It may be added that the point is not embraced in the assignment of errors.

The verdict in favor of defendant being in effect a finding that the conveyance under which plaintiffs claimed was fraudulent as to Eoper, cannot be said to be either without or against evidence. The instrument itself contains badges of fraud sufficient to justify the verdict, and the evidence discloses circumstances tending to the same conclusion. The conveyance was evidently designed to embrace all of the property of Eeece Hughes, sen., subject to execution. The exception of his homestead of two hundred acres, and of his saddle.pony, if it has no other significance, at least shows that the idea of property by law exempt from execution was present to" the mind of the grantor. With these exceptions, the conveyance embraced not only all his lands and stock, but a large number of accounts and notes, many of them in process'.of collection, and was unusual in its character. The conveyance by the grantees on the same day of two-thirds of the entire property just received from their father to their younger brother and "half brothers, a conveyance admitted to be in part at least a gift, is not without significance. The two conveyances bear the marks of one transaction, the result of which is that the father indirectly conveys property to his younger children by way of gift. The suit for Eoper’s debt was then pending, and was reduced to judgment in the month of November following the August in which the conveyance was made. All these are badges of fraud; that is, evidence of fraud—means of establishing a fraudulent intent. (Bump on Fraud. Convey., 78, e.t seq.) They are sufficient to authorize the jury to infer that the conveyance was not what it is claimed to have been, an honest preference of his own children as creditors.

It is urged that the verdict and judgment are both defective, in failing to désignate what part of the property levied on is the separate property of Eeece Hughes, sen., and what part the community of the second marriage. A brief statement of the pleadings will show that this complaint cannot avail appellants.

Appellants enjoined the sale of certain lands claimed by them under a conveyance from their father, and levied on under an execution against him in favor of defendant. Appellee answered, alleging the conveyance to be fraudulent. By an amended petition, plaintiffs attempted to set up equitable ownership of the lands conveyed prior to the conveyance. The facts stated, however, were that the lands were purchased with the separate funds of their deceased mother, or community funds of the first marriage. These averments showed that Reece Hughes, sen., was at least part owner of the lands levied on, unless divested of his interest by the conveyance. The general verdict of the jury for the defendant settled the real issue of the case, viz, that the conveyance was fraudulent as to Roper. The verdict proceeded, however, to subject to Roper’s execution “ the property of Reece Hughes, sen., and the community property of the second coverture,” and the judgment vacates the conveyance and dissolves the injunction only as to the separate estate of Reece Hughes, sen., and the community of the second marriage. We think that all of the verdict, except the general finding, might have been treated as surplusage, and that the appellee might have claimed a dissolution of the injunction in full. It would seem that this part of the verdict was induced by a charge of the court founded, doubtless, on an amended answer of appellee seeking affirmative relief. The only practical effect of this part of the verdict and judgment is that it gives the appellants the benefit of a partial perpetuation of the injunction, to which they were not entitled. When it is added that nowhere, either in their pleadings or evidence, do they furnish any data for distinguishing the separate and community estates, it would seem that this uncertainty is no error of which they can complain. ■

The assignment objects that the charge as given was defective. It does not appear, however, that any instructions were asked by appellants.

The judgment is affirmed.

Affirmed.