Kerr v. Hutchins

Citations

• 46 Tex. 384

Syllabus

<p>1. Fraudulent conveyance—Estates op decedents. —To maintain a suit against an executrix of an estate, (who by the terms of the will is not under the control of the Probate Court,) and against one to whom the petition alleges that a fraudulent mortgage of property had been made by the testator, for the purpose of setting aside the conveyance, the plaintiff, who claims to be a creditor of the estate, must show—</p> <p>1. That he has a valid claim against the estate.</p> <p>2. That as to his debt, the mortgage was fraudulent, and that as a fraudulent incumbrance, it constitutes a substantial impediment to the collection of his debt.</p> <p>2. Same.—The facts entitling such party to a recovery being established, the judgment should be against the executrix for the amount of the debt, and a decree against the claimant, under the fraudulent mortgage, cancelling it as to so much of the property mortgaged as might be necessary when levied on and sold, to satisfy the plaintiff’s judgment.</p> <p>3. Approved.—Hall v. McCormick, 7 Tex., 278, 279, approved.</p> <p>4. Judgment—Fraudulent conveyance.—A judgment rendered in a suit by a creditor against an executrix, and one claiming under the fraudulent conveyance, which sets aside such conveyance so far as the same may be necessary to secure the plaintiff’s debt, does not affect the validity of the conveyance beyond its terms, so far as the executrix is concerned, nor as to other creditors who have not asked relief.</p> <p>5. Verdict.—The court should not receive a verdict which fails to find material issues submitted in the charge.</p> <p>0. Fraud.—In a suit to set aside a mortgage as fraudulent, the facts being established that the party charged with the fraud was Largely indebted, at the time the mortgage was made, to various creditors, and mortgaged to one creditor “the mass ” of his property, leaving not enough to satisfy the demands of other creditors,- does not authorize the court to charge that such facts constituted f