Kerr v. Hutchins , 46 Tex. 384 ( 1877 )

Roberts, Chief Justice.

To maintain this suit, it was incumbent on the plaintiff, Hutchins, to show that he had a valid claim against Sarah B. Mercer, as executrix of the will of her husband, Levi Mercer, deceased; that as to his said debt, the mortgage of A. B. Kerr upon the property in her hands, was fraudulent; and that this fraudulent incumbrance was a substantial impediment to the collection of his said debt.

Hpon establishing these facts, the extent of the plaintiff’s remedy was to obtain a judgment against the executrix, for the amount of his debt, a decree against A. B. Kerr, that his mortgage should be void as to so much of the property belonging to said estate as might be necessary, when levied on and sold, to satisfy the judgment of plaintiffs so recovered. (The executrix, by the terms of the will, was not under the control of the Probate Court.)

That such a suit can be maintained, upon showing that there was not sufficient effects left, unincumbered by the fraudulent conveyance, to pay the debt, was held by this court. (Hall v. McCormick, 7 Tex., 278-9; Story’s Eq. Pl., sec. 227.) It would not follow from this that Kerr’s debt and mortgage lien were void as to the executrix, or as to other creditors, who did not choose to assert any right against them. (Story’s Eq. Juris., sec. 257α.) In that, Hutchins has no interest; and his equitable remedy for relief can extend no further than is necessary to establish and secure his own interest as against Kerr.

From these principles, it is plain that the court was not authorized to' render a judgment against Kerr, declaring his note and mortgage absolutely null "and void as against the estate of Levi Mercer, if, indeed, it could have been rendered at all, upon the defective, uncertain, and indefinite verdict, which said : “We, the jury, believe there to be a combination between Mercer and defendant, Kerr, to hold the property against the other creditors.”

This verdict, though partly special, contains no finding on the issue of insolvency of Mercer, or whether or not it was necessary for the plaintiff to resort to the mortgaged property in order to collect Ms debt, which was the important matter that authorized the maMng of Kerr a party to this suit. The court should not have received a verdict wMch so far failed to find the material issues in the case submitted to them; or if the jury would find no other, the court should have declined to render a judgment against Kerr on so imperfect and irrelevant a verdict.

Another question arises upon the charge of the court, in reference to the conflicting evidence on the issue of fraud.

There was evidence tending pertinently to establish that the debt and mortgage of Kerr, as to creditors, were fraudulent; and, also that they were not so fraudulent. It was therefore important to leave the fact of fraud in the transaction fairly and fully to the judgment of the jury.

The court charged the jury, at the instance of plaintiff’s counsel, as follows, in substance: “that if Levi Mercer was largely indebted to others, and mortgaged all of his property to Kerr, that was an acknowledgment of his insolvency.” And further, “ that if said Mercer was largely indebted to various creditors, and mortgaged to one creditor the ‘mass,’ of his property, leaving not enough to satisfy the demands of other creditors, it is a fraud in law, as to such other creditors, because it operates to Mnder or delay such other creditors, although the purpose of the parties might not have been directly to defraud the other creditors.

WMle these may often be, especially in connection with other concurring circumstances, very reasonable conclusions of fact, they are certainly not rules of law, and the court materially erred, in so instructing the jury, in reference to the facts of this case. It is province of the jury, and not of the court, to draw the inference of fraud, from such and similar facts, as has been repeatedly held by tMs court. (Baldwin v. Peet, 22 Tex., 708; Briscoe v. Bronaugh, 1 Tex., 326.)

For these errors, the judgment is reversed and the cause remanded.

Reversed and remanded.