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uary, 1876. It was upon a judgment ob- That the defendant is a nonresident is made tained by Todd against the defendant in that by the statute one of the grounds for an atsuit in one of the district courts of New tachment, and the proceedings in the attachOrleans in Louisiana. The petition averred ment suit showed that the judgment renthat the defendant resided in Louisiana. It dered, if not free from error, was certainly set out the cause of action, and alleged that not void, but at most only erroneous, if the the defendant, John C. Barelli, was indebted question is to be determined by the statute to plaintiff in the sum of $4,196.37, and con- of our state then in force, because the act cluded as follows: "Petitioner further avers regulating attachments provided that every that the said John C. Barelli has property original attachment issued without affidavit situated in Victoria county, out of which he taken as required should be abated on mobelieves a portion of this debt can be made. tion of the defendant. Pasch. Dig. art. 147. Wherefore petitioner sues and prays that the This right to abate the attachment on acsaid John C. Barelli be cited by publication count of defects in the affidavit or bond to appear and answer hereto at the next is restricted by the statute to the defendterm of your honorable court for the county ant in the suit. Goodbar v. Bank, 78 Tex. of Victoria, and that, upon final trial, peti. 461, 14 S. W. 851. That the act was intioner have judgment for his said debt, with tended to apply as well to cases where the interest, and for all costs of suit; and peti- | property of a nonresident has been attached, tioner further prays that a writ of attach- if there could be any question as to that, is ment may issue directing the sheriff of Vic- made clear by the eighteenth section, which toria county to seize so much of the property declares “that no judgment shall be renof the said John C. Barelli as will pay the dered in suits by attachment, unless the citadebt aforesaid," etc. The petition was sworn tion or summons has been served in the ordito by A. H. Phillips, one of the attorneys nary mode, or by publication in the manner for the plaintiff, and, with the affidavit of provided by law.” Pasch. Dig. art. 156. the attorney to the petition, forms the only In accordance with the procedure in this affidavit made in the case. Following the state, the attachment of the property of the petition is the affidavit: "I do solemnly defendant, and citation to him by publicaswear that the matters set forth in the fore. tion, conferred jurisdiction upon the court going petition are true, and that John C. to subject the property to the satisfaction of Barelli, the defendant named in the forego- the plaintiff's demand by sale thereof, and ing petition, is justly indebted to Sam'l M. the affidavit was not a jurisdictional fact Todd, the plaintiff named in the foregoing so as to preclude the court having general petition, in the sum of four thousand one jurisdiction of the subject-matter from adhundred and ninety six & 37/100 dollars, and judicating its sufficiency to support a writ, that the said Barelli is not a resident of fair on its face, which has been levied upon Texas." It will appear from an inspection the property. Is this procedure due proof the affidavit that the attorney of plaintiff cess of law, such as is necessary for a state did not swear that the attachment was court to take in subjecting the property of a “not sued out for the purpose of injuring | nonresident, situated within the limits of the the defendant," as required by the statute state, to a demand that may be established in force at the time the suit was brought. by its judgment? There are quite a number Pasch. Dig. art. 142. A writ of attachment, of decisions by the state courts which hold fair on its face, was issued and levied on that the affidavit is a jurisdictional fact, and the land. Citation by publication was duly that a judgment rendered in an attachment perfected, and no appearance was made by proceeding, defective for the want of an affithe defendant. No question is made as to davit complying with the provision of the the entire regularity of the attachment and statute, is utterly void, and may be attacked other proceedings resulting in judgment and in a collateral proceeding. These decisions the sale of the land, except as to the affidavit. are not confined to proceedings in rem,
As presented by appellants in their brief, where the property of a nonresident is sought the question before the court is: "Did the to be subjected to a demand asserted in a court-in the case of Todd y. Barelli-get state court, but extend to cases of ordinary jurisdiction of the property without the stat attachment, when the defendant has aputory affidavit for attachment, the defendant peared and pleaded. But, on the other hand, being a nonresident of the state, and not per- it is held, with better reason, we think, that sonally served with process, and not appear- the attachment of the property and bringing ing to answer in said cause? And was the it into the custody of the law is the fact that personal judgment rendered against him, and gives the court jurisdiction of the property in which the order of sale issued, and to of a nonresident, and that citation to the satisfy which the property was sold, a void defendant, as required by our statute, is not judgment?”
necessary, unless otherwise provided by the We are of the opinion that the judgment procedure of the state whose court has in the case of Todd y. Barelli was not void caused the property to be attached. The on account of the defect in the affidavit, question has been definitely settled in this and consequently not subject to a collateral way by the supreme court of the United attack in this action of trespass to try title. States in the case of Cooper v. Reynolds, 10 Wall. 319, and Matthews v. Densmore, 109 serving all the covenants and agreements U. S. 216, 3 Sup. Ct. 126. We think, also, on their part, should peaceably and quietly that the trend of the decisions of our su- during the said term hold, possess, and enjoy preme court is to the same effect. Stewart the demised premises without any let, v. Anderson, 70 Tex. 595, 8 S. W. 295; Good- hindrance, molestation, disturbance, or inbar V. Bank, supra, and other cases, in terruption by her or by any person or perwhich the question of presumption in favor sons whatsoever, and that Nordholtz and of the judgment of a court having jurisdic- those claiming under him should have the tion of the subject matter has been consid- right and privilege of subletting the demised ered.
premises;, the putting, by Mrs. Wright, of Because the court rendered a personal judg- Nordholtz, on December 31, 1881, by virtue ment against Barelli which was void did not of said lease, in the possession of the deaffect the validity of so much of the judg. mised premises, and the entry thereupon by ment as adjudged the amount due the plain- Nordholtz, and his becoming possessed there tiff, and directed the sale of the attached of; the sale, transfer, and assignment, in property to satisfy the same. Foote writing and for value, by G. W. Nordholtz Sewall, 81 Tex. 660, 17 S. W. 373. The judg. to appellant, J. C. Trube, on September 16, ment of the court below will be affirmed. Af- 1887, of all his rights arising out of said lease firmed.
and its covenants; the fulfillment and per
formance by Nordholtz up to September 16, PLEASANTS, J., did not sit in this case. 1887, and thereafter by appellant, of all
things by them in said lease to be kept, fulOn Rehearing.
filled, and performed, and particularly touch(Dec. 21, 1893.)
ing the payment of the rent in said lease The judgment of the court entered in this
reserved, according to the true intent and case on October 12, 1893, having been set
meaning of said lease, and the breach by aside by the court by its order on October
Mrs. Wright, and, after her death, by appel19, 1893, and the cause having been again lee, as her executor, of the covenants on their submitted to the court for its determination,
part in said lease, and especially in this: it is our opinion that the judgment of the
that, although often requested so to do by court below should be affirmed, for the rea
Nordholtz and by appellant, Mrs. Wright in sons stated in the opinion filed October 12,
her lifetime did not, nor did appellee at any 1893, which will be now filed again as the
time after her death, defend either to Nordopinion of the court. Affirmed.
holtz or to appellant the title to and the possession and enjoyment of the demised premises, and against the hindrance, moles
tation, disturbance, and interruption of all TRUBE V. MONTGOMERY.
persons whatsoever, but, on the contrary,
during the term, and about January 1, 1887, (Court of Civil Appeals of Texas. June 25,
notwithstanding Nordholtz had paid the 1894.)
monthly installments of rent theretofore due, LIMITATIONS-EvictioN OF TENANT.
and was ready and willing to pay those Where a landlord wrongfully evicts a tenant holding under a lease, completely ending
thereafter falling due (as appellee continued the tenant's enjoyment of the leased premises, ready and willing after September 16, 1887, limitations run against an action for the breach and up to December 31, 1891), Mrs. Wright from the date of the eviction.
did cnter into and upon the possession of Appeal from district court, Galveston coun- said demised premises, and unlawfully and ty; William H. Stewart, Judge.
wrongfully did eject, expel, and remove NordAction by J. C. Trube against J. S. Mont- holtz against his will from the possession, gomery, executor. There was judgment for occupation, and enjoyment of the demised defendant, and plaintiff appeals. Affirmed. premises, and that she continually thereafter
The case is thus correctly stated in appel- during her lifetime excluded Nordholtz and lant's brief: “On November 11, 1893, the appellant, against the will of each, from the appellant, who was plaintiff below, filed his possession, occupation, and enjoyment thereoriginal petition, and on January 20, 1894, of, and after her death, continually up to the his first amended original petition, which lat. expiration of said lease, the defendant so ter pleading alleged, substantially, the exe- kept and excluded the appellant, against apcution and delivery by Margaret Wright (ap- pellant's will and contrary to the form and pellee's decedent), on December 31, 1881, to effect of said lease and of Mrs. Wright's G. W. Nordholtz (appellant's assignor) of a covenants; by reason of all of which Nordwritten lease for lot 7 in block 501, and im- holtz and appellant, his assignee, have not provements, in Galveston, Tex., for 10 years only lost entirely and been deprived of the from December 31, 1881, in consideration of said demised premises and its appurtenances, the aggregate sum of $30,000, to be paid in but have also lost and been deprived for five equal monthly payments of $250; the cove- years during said term, to wit, from January nants, on the part of Mrs. Wright and her 1, 1887, to December 31, 1891, of the rental representatives, that Nordholtz and his as- value to Nordholtz and his assignee, appel. signs, paying said rent and keeping and ob- lant, of said demised premises, which rental value, over and above the rent to be paid un- ing under covenants of title in conveyance der said lease to Mrs. Wright or her repre- of real estate where damages to the premises sentatives by Nordholtz or his assignee, ap- of which the covenantee is in possession and pellant, during said period from January 1, enjoyment are partial only, and occur at 1887, to December 31, 1891, amounts to the intervals, in which limitation upon actions aggregate sum of $18,000; the death of Mrs. for the breach is held not to run from the Wright on September 7, 1889, leaving a will first breach, the covenant running with the which was probated in the county court of land, and the breach being continuous (Wood, Galveston county on November 18, 1889, and Lim. $$ 173, 174, and notes); but, when the appellee James S. Montgomery's, appoint right of action is upon an eviction from the mnent as executor, and his due qualification, whole land, there is a complete and final and that he, as such executor, is in charge breach of the entire covenant, and limitation of Margaret Wright's estate, said administra- begins at once (Id.). It will be seen that the tion upon said estate being still open and distinction made between acts which constipending in said county court of Galveston tute causes of action complete at the time of county; the failure and refusal of Mrs. their commission and those which are not acWright and of defendant to keep and observe tionable per se, but become so only when the covenants of said lease, and appellee's resulting damage to another occurs, is subfailure and refusal, although often requested, stantially observed in the application of the to allow or to pay, in whole or in part, appel- law of limitation to actions for breach of lant's claim for damages against Mrs. covenants. Here there was a complete evicWright's estate arising out of the breach of tion from the leased premises, which wholly said covenants in said lease. Prayer for ended plaintiff's enjoyment of them. His process, for judgment against defendant as cause of action was perfect when this oc executor of Mrs. Wright's will, for his said curred, and should have been prosecuted damages, with legal interest, for general and within four years from that date. Affirmed. special relief, and for costs." Appellee excepted to the petition on the ground.that the cause of action was barred by the statute of limitations of two and four years. The ex
FARRELL V. DUFFY.' ception was sustained and the suit dismissed.
(Court of Civil Appeals of Texas. Dec. 21, Davidson & Minor and McLemore & Mc
1893.) Lemore, for appellant. S. S. Hanscom, for FRAUDULENT CONVEYANCES—RIGHTS OF GRANTOR. appellee.
Where a debtor, to defraud his creditors, conveys his land without consideration, and
subsequently procures the grantee to convey it WILLIAMS, J. (after stating the facts). to a third person as security for a loan obtained The suit was for damages for breach of a by the debtor, the agreement of the lender to contract in writing, and the four years stat
reconvey to the debtor on payment of the sum
loaned will not be enforced, since it is against ute is applicable. Robinson v. Varnell, 16
public policy. Tex. 382. But the only question to be de
Appeal from district court, De Witt county; cided is, when did the cause of action accrue?
James C. Wilson, Judge. Appellant contends that it was not complete
Trespass to try title by John Farrell against and perfect until the expiration of the term,
Owen Duffy. From a judgment for defendas the extent of the damages resulting from the eviction could not be known until then.
ant, plaintiff appeals. Reversed. If the fact were as supposed, it would not of Proctor & Proctor, for appellant. Baker & itself prevent limitation from operating from
Sumners, for appellee. the date of the alleged eviction. There can be no doubt, according to the allegation, that WILLIAMS, J. Appellant sued appellee in such an eviction was a distinct invasion of trespass to try title to recover the lot in conplaintiff's right, inflicting immediate legal in- troversy. Appellee pleaded not guilty, and jury, for which a suit might at once have pleaded specially the facts stated in the conbeen commenced. In Water Works v. Ken- clusions of fact. nedy, 70 Tex. 236, 8 S. W. 36, the rule is thus
Conclusions of Fact. stated: “If, however, the act of which the injury was the natural sequence was a legal (1) That appellee, Duffy, prior to October 4, injury, by which is meant an injury giving 1883, was the owner of the premises in concause of action by reason of its being an in- troversy, and on that day, in order to hinder vasion of plaintiff's right, then, be the dam- and defraud parties who were about to sue age however slight, limitation will run from him for damages for injuries done by him to the time the wrongful act was committed, the furniture in their house, he made a deed and will bar an action for any damages re- conveying it to J. T. Hathaway, who resulting from the act, although these may ceived the deed knowing and participating in not have been fully developed until within the fraudulent purpose with which it was a period less than necessary to complete the made. There was no consideration for the bar.” See, also, Lyles v. Railroad Co., 73 deed, though it recites à paid consideration of Tex. 95, 11 S. W. 782. There are cases aris- $1,500. (2) Hathaway never asserted any
claim to the lot against appellee, but held it veyed, at the same time attempting to secure in accordance with the agreement until about to himself the beneficial enjoyment of the September 16, 1884, when appellee, having property. It is the policy of the law and the previously borrowed from appellant $100, and duty, of courts to discourage such transacanticipating that he would want to borrow tions, instead of encouraging by enforcing $150 more, procured Hathaway to make a them. The deeds are sufficient in themselves deed for the lot to appellant, with the verbal to entitle Farrell to recover, and they cannot, understanding that it was to be held as se- in our opinion, be defeated by proof of the curity for such loans, and that Farrell was to fraudulent scheme by which Duffy attempted pay the taxes on it, and would reconvey to to retain the equitable title in himself. appellee, Duffy, when such debt and taxes There are authorities in other states under should be paid. Farrell, the appellant, knew which, as between the parties, Farrell's agreeof the purpose for which the deed had been ment to reconvey would be enforced. See made to Hathaway, and, at the time the last note by Mr. Freeman to Whitworth v. Thomdeed was made, the claim for damages was as (Ala.; 3 South. 781), 3 Am. St. Rep. still being prosecuted against Dutfy, and was 728 et seq. But we do not understand our subsequently reduced to judgment, and in courts to have laid down such a doctrine. 1891 was compromised by him. (3) We infer They have treated such agreements, where and find from the circumstances, though no they require the aid of courts to enforce them, witness states such to be the case, that the as against public policy and void, and have enfraudulent intent with which Duffy made the forced conveyances of parties absolute on deed to Hathaway still existed, and actuated their face. The equitable title and right of the parties in the transaction with appellant; possession in Duffy which would ordinarily and that the absolute deed was made to him result from such a transaction, where there is for the purpose of still covering up the prop- no fraud, cannot arise out of this, because the erty from the parties asserting the claim agreement of Farrell is vitiated by fraud; against Duffy, and in order to enable Duffy while, in order to visit upon the party perpeto get the benefit of it, as well as to secure trating the fraud on his creditors the conseHathaway. (4) No further loan was made quences of his own act, the law looks to the by Hathaway to Duffy after the deed was character of the deed he has executed, and executed, the latter not needing it. (5) On enforces the title which on its face it purJanuary 21, 1892, Duffy tendered to appel- ports to convey. Hoeser v. Kraeka, 29 Tex. lant, Farrell, the amount of principal and in- 450; Eastham v. Roundtree, 56 Tex. 110. terest due on the loan and taxes paid by Far- The judgment for defendant was therefore rell, and on March 1, 1892, Duffy took actual erroneous, and will be reversed, and judgpossession of the lot.
ment here rendered for appellant for the
property. Reversed and remanded. Conclusions of Law. 1. That the parties asserting the claim against Duffy were creditors in the sense of the statute of frauds, and that the two deeds JENKINS et al. v. ADCOCK et al. 1 were therefore made in fraud of creditors.
(Court of Civil Appeals of Texas. Nov. 23, 2. That by the deed to Hathaway the title
1893.) passed out of Duffy, and by the deed from DEED-What CONSTITUTES CONSIDERATION. Hathaway to Farrell such title passed to the 1. A deed to take effect on the grantor's latter.
death, conveying her entire interest in land 3. That the defendant, Duffy, cannot set up
which she expected to be devised to her by her
mother's will, followed by a clause of general his fraud to avoid either deed. While Hath
warranty, is not a mere quitclaim deed of the away could recognize his moral obligation to interest that the grantor had in the land when Duffy, and could restore the title to him, and it was executed, but will pass to the grantee while a bona fide conveyance of it to Farrell
the title acquired by the grantor on her moth
er's death through her will. in trust for Duffy, accompanied by an agree- 2. A deed conveying land expected to be dement on Farrell's part to convey to Duffy, vised to the grantor, but reserving a life estate might invest Duffy with the right to posses
in the latter's favor, executed pursuant to a
request by testatrix so as to effectuate her insion and to a conveyance from Farrell, this
tention of devising to the grantor only a life effect cannot be attached to the transaction estate in the land, with remainder to the granin question. That agreement is tainted with tee in the deed, without changing her will, is not the same fraud that characterized the con
void for want of consideration.
3. An instrument reciting a grant, bargain, veyance to Hathaway. To permit Duffy to and sale of land, as well as a consideration show his own fraud, and avail himself of therefor, and containing the usual habendum such an agreement, would put it in his power
and tenendum clauses, and also a general war
ranty of title, and reserving to the grantor no to reap the benefit of his device to defraud
power of disposition or revocation, is a deed, his creditors, and open up an easy way to and not a will, though it provides that it is debtors to put their property beyond the not to take effect until after the grantor's death. reach of creditors, and at the same time en- Appeal from district court, Jefferson counjoy it themselves. The right of redemption ty; W. H. Ford, Judge. intended to be reserved to Duffy was subject Action by Elizabeth J. Jenkins and others to the claims of his creditors, and that he con- against Nancy R. Adcock and others to can
* Rehearing denk ).
cel or reform a deed. From a judgment for assigns, for ever; and I do hereby bind mydefendants, plaintiffs appeal. Affirmed. self, my heirs, executors, and administrators,
Appellant Elizabeth Jenkins, joined by her to warran, and forever defend all and singuhusband, brought this suit to cancel or re- lar the said premises unto the said Nancy R. form an instrument which was ip form of a Adcock, her heirs and assigns, against every deed conveying plaintiff's interest in a tract person whomsoever lawfully claiming or to of 200 acres of land to her sister, Mrs. Ad- claim the same, or any part thereof. Witcock, the appellee, but which was alleged in ness my hand, this the 22nd day of June, A. D. the petition to have been intended to operate
her simply as a will, and to devise to appellee 1889. Elizabeth Jane X Hays. Witness: J. E. such interest in the land as plaintiff might
mark have remaining undisposed of at her death. Charpiot. W. L. Rigsby." The evidence The petition charged that, by mutual mistake
showed the following facts: Mrs. Ellen Colof herself and her sister, as well as of the
lier, the mother of both plaintiff and defenddraughtsman of the paper, it was made to
ant, owned, as her homestead, a tract of 204 assume the form of a quitclaim deed, convey
acres of land, besides other property. She ing the land absolutely, but to take effect at
had on the 31st day cf March, 1879, conveyed her death, when the intention of all the par
to the plaintiff and defendant five acres out ties was that it should be a will, leaving in
of the tract, to be held by them jointly during plaintiff the power of revocation, and of con
the life of the plaintiff, at whose death the trol and disposition of the land during her
whole was to vest in the defendant Mrs. Adlife, and bequeathing to her sister only such
cock and her heirs. She also, at some time portion as should remain undisposed of at
in 1879, made her will, by which she devised plaintiff's death. It was also charged that
to plaintiff and defendant jointly the land in the defendant procured the instrument by controversy, other property being also defraud, misrepresentation, and updue influence;
vised to them and other heirs. On the 22d that the instrument was without considera
of June, 1889, when the instrument in question, was never delivered, and was not intend
tion was executed, Mrs. Collier sent for her ed to be recorded, but that defendant had attorney, and had him examine her will to obtained possession of and recorded it, and
see that all of the children were included, and was asserting title under it. A further al- that the property was properly disposed of. legation was made that the instrument was Finding that the will was as she desired it not intended to embrace the 200 acres, but
to be, she stated that she did not wish her only a tract of 5 acres of same, which al
homestead (the land in dispute) to be divided, ready belonged to the parties jointly. The but wanted it, with the five acres previously defendants pleaded general denial. The court conveyed to plaintiff and defendant, kept tobelow rendered judgment for defendants, gether, and, at plaintiff's death, wanted it all which is brought in review in this appeal.
to belong to Mrs. Adcock. She requested the The instrument in question is as follows: attorney to so arrange that this object should “The State of Texas, County of Jefferson.
be attained, and proposed that plaintiff make Know all men by these presents, that I, Eliz
her will bequeathing her interest in the propabeth Jane Hays, a feme sole, of the state of erty to Mrs. Adcock. The attorney suggestTexas and county of Jefferson, for and in ed that a will could be changed, and that the consideration of the sum of fifty dollars to
desired end could best be secured by a deel me paid by Nancy R. Adcock, have granted, from plaintiff to her sister. To this the sold, and conveyed (to take effect at my plaintiff, the defendant, and Mrs. Collier asdeath), and by these presents do grant, bar- sented, and it was agreed that the consideragain, and sell, to the said Nancy R. Adcock, tion for the deed sho'ud be a debt of $50 of said county and state, my entire interest which plaintiff owed defendant, and which in and to two hundred acres of land of the was thus satisfied. The deed was then preHezekiah Williams survey, situated in Jeffer- | pared by the attorney, and signed by plainson county, state of Texas, on the west bank tiff (who was then a widow, 54 years old, of Neches river, including the homestead and without children), and was delivered to the ferry of our mother, Ellen R. Collier, and defendant. There were no misrepresentabeing the same land bequeathed to us, the tions, fraud, or undue influence employed by said E. J. Hays and N. R. Adcock, by our any of the parties, and the instrument as said mother in her last will and testament, prepared is in accordance with the agreeand which said land and ferry is now held ment. Mrs. Collier died in November, 1890, and occupied by our said mother until her since which time the parties have jointly redeath, when the said E. J. Hays is to hold ceived the income derived from the ferry and occupy the same until her death; and, upon the five-acre tract, amounting to $25 at my death, my entire interest in said land or $30 per month. The plaintiff testified to and premises is by these presents conveyed some facts tending to prove her allegations to my said sister, Nancy R. Adcock, to have that the effect of the instrument was differ. and hold the above-described premises, to- ent from what she intended it to be, and statgether with all and singular the rights and ed that she could not read, and did not re appurtenances thereto in any wise belonging, member whether or not the paper was read into the said Nancy R. Adcock, her heirs and to her. The defendant and the attorney les