Lynn v. Le Gierse & Co.

48 Tex. 138

• Court: Texas Supreme Court
• Decided: July 1, 1877
• Status: Published

Opinion

Gould, Associate Justice.

A judgment creditor may cause his execution to be levied on land fraudulently conveyed by the debtor, and if he himself becomes the purchaser at the execution sale, he may then bring his suit to have the fraudulent conveyance set aside, and recover the land.

True, he may, if he sees fit, first institute his suit to have the conveyance declared fraudulent, and the land subjected to his execution; but his right to proceed to levy and sell, in the first instance, is firmly established. (Castro v. Illies, 22 Tex., 480; Wood v. Chambers, 20 Tex., 248; Hancock v. Horan, 15 Tex., 507; Freeman on Executions, sec. 136 and references.) There was some conflict in the evidence as to the alleged fraudulent intent of the parties to the conveyance; but there is nothing in the record that would lead us to the opinion, that the court below erred in refusing to disturb the verdict of the jury.

The only other question- discussed in appellant’s brief, is the sufficiency of the verdict to support the judgment. Under the pleadings and the charge of the court, the general verdict in favor of plaintiff established, amongst other things, the alleged fraudulent intent of the debtor in making the conveyance, and that his brother', to whom the conveyance was made, was affected with notice of that intent. That general verdict was sufficient to authorize the cancellation of the conveyance, so far as it affected plaintiff’s rights, and the recovery of the land so conveyed. If the result of the attempted fraud has been the sale of the land at much less than its value, the parties have brought the loss upon themselves.

In regard to other questions not discussed in the brief of counsel for appellant, it is enough to say, that we have found no error in the record, and the judgment is affirmed.

Affirmed.