Bloxham v. Wallace , 259 S.W. 1001 ( 1924 )

In view of the pleadings and the evidence, the controversies can be considered separately, and severable, respecting the sale of the land to appellee S. B. Wallace and the transfer of the land notes to appellee W. M. Jones.

The errors assigned as specially pertaining to the land notes will be first considered. The court gave the following special issue:

"Do you believe from a preponderance of the evidence that at the time E. D. Jones transferred the land notes in suit to the defendant W. M. Jones, that E. D. Jones was insolvent, and that the purpose of such transfer was to hinder, delay, or defeat his creditors, and that W. M. Jones had notice of the insolvency of E. D. Jones and of the intention and purpose of E. D. Jones to hinder and delay or to defeat and defraud his creditors, and accepted the said notes ?"

The jury, it appears, "when they returned into court answers to all of the special issues prepared by the court, and submitted to them, failed to answer the above and foregoing special issue submitted to them by the court." The bill of exception further shows that —

"The plaintiff in open court requested the court to require the jury to answer said special issue. The court failed and refused to grant the request of the plaintiff to require the jury to answer the said special issue, and over the objection of the plaintiff discharged the jury without requiring them to answer the said special issue."

The issue really submits three different questions to be answered. One of the questions was practically covered in other issues submitted. But the other two questions were not pertinently submitted in other special issues for finding by the jury, (1) of whether or not E. D. Jones transferred the notes for the purpose of hindering or defrauding his creditors, and (2) of whether or not W. M. Jones had notice of such purpose or intention on the part of E. D. Jones. The questions were made material in the case by the evidence offered. Having submitted the issue as done, the appellant was entitled to have the jury answer the same.

The court submitted the following issue to the jury:

"Do you believe that W. M. Jones purchased, in good faith, from E. D. Jones the notes executed by S. B. Wallace to E. D. Jones, and paid to the said E. D. Jones a valuable consideration therefor?"

In this connection, and at the request of the defendants, the court gave the following:

"I charge you that by the term `valuable consideration,' as used in the court's main charge, is meant either money or notes; that is, may be either or both money or notes."

Thereupon the appellant excepted to the instruction and requested, and the court refused to submit, the following special issue:

"Do you believe from the evidence that E. D. Jones was indebted to W. M. Jones in the sum of $2,500, or any sum, at the time the said E. D. Jones transferred the notes to him, the said W. M. Jones?"

There is no testimony in the record that contradicts the fact that E. D. Jones executed a note to W. M. Jones. The contest was entirely as to whether the $2,500 note was executed for actual borrowed money, or was only a simulated transaction. And in view of the special definition submitted at the request of appellees the jury might reasonably have concluded that the special issue No. 5 submitted to them meant that, if the note was in fact executed, the mere fact of its execution alone constituted a "valuable consideration," and have given their answer accordingly. The jury could reasonably conclude under the definition that the execution of "a note" would satisfy the law even without the existence of consideration; and the jury could have referred the term "good faith" to the belief of W. M. Jones that E. D. Jones was the owner of the land notes. It was a controlling issue in the case as to whether or not E. D. Jones was in fact indebted to W. M. Jones in the sum of $2,500, or any sum, at the time of the transfer of the land notes. If E. D. Jones did not in fact actually owe W. M. Jones this sum, there was no consideration, and the transfer of the land notes was purely voluntary and not legally effective. The requested special issue should have been given.

Considering next the deed to S. B. Wallace, it is concluded that, in view of the findings of the jury, having evidence to support them, the conveyance of the land would not be legally void and of no effect. The issues submitted to the jury in that respect were full, pertinent, and correct, According to the findings of the jury, and which the evidence supports, S. B. Wallace was a purchaser for a valuable consideration, actually paid, without notice of the fraudulent intent or any fraud on the part of his grantor, E. D. Jones. In such facts the conveyance would not be fraudulent or void as to appellee Wallace under the terms of the statute. Articles 3966, 3967, Rev. Stat.

Therefore the judgment will be affirmed as to appellee S. B. Wallace, but will be reversed and the cause remanded for another trial in so far as it pertains to appellee W. M. Jones.