Thompson v. Barer/Opinion of the Court

The transaction by which Baker attempted to put the title to the land in his nephew was a mere sham. The deed was never delivered to the pretended grantee, and, having been made with the intent to defraud the creditors of the grantor, particularly Schuler, was void, under the statute, as to such creditors. It did not, therefore, as between Schuler, Baker, and Ledbetter, stand in the way of Schuler causing, as he did, an attachment to be levied upon the land as the property of his fraudulent debtor. Equally ineffectual, as against Schuler, was the conveyance by Ledbetter, and the quitclaim deed of Baker to Israel. No consideration of any kind passed from Israel to either of the fraudulent grantors, and those deeds were void as to prior creditors.

So that, on the 1st day of August, 1885, when Thompson took a mortgage from Israel, the land was under a lien created by Schuler's attachment of December 5, 1884, which was levied upon it as the property of Baker. The deed from Baker to Ledbetter, and the conveyance from Led better to Israel, being void as to Schuler, he had the right to proceed to a decree in his suit without noticing the apparent title which Ledbetter had of record at the time the attachment of December 5th was levied, or the title which the latter attempted, after the levy of that attachment and in fraud of Baker's creditors, to convey to Israel. It results that the rights of Thompson under the mortgage from Israel, and under the decree, sale, and purchase in the suit brought by him, having been acquired while the land was under a valid levy by Schuler's attachment of December 5, 1884, as the property of Baker, were subject to whatever rights were acquired by Schuler, as purchaser, under the decree in his suit. Baker being a party to that suit, his interest in the land levied upon by Schuler's attachment could not be conveyed by him so as to defeat the final decree in that suit. And no greater rights could be acquired by a purchaser from Baker after the attachment than Baker himself had. In Tuttle v. Turner, 28 Tex. 759, 773, which involved the title of one who purchased land after a levy thereon of an attachment, the court said: 'If he purchased after the appellees acquired a lien on the lands by levy of the attachment, his rights are subordinate to theirs. The attachment lien being a prior incumbrance, he takes subject to its prior satisfaction. Being a pendente lite purchaser, he is affected with notice of the rights of the appellees,' etc. So, in Hancock v. Henderson, 45 Tex. 479, 484, where the contest was between the holder of an attachment lien upon land and a person who purchased from the grantees of the defendant in the attachment, who, it was alleged, had conveyed the land to such grantees with the fraudulent intent to hinder his creditors, such purchaser having no actual notice of the issuing of the attachment or of the levy, the court said: 'That a valid levy created a lien on the land attached, and, when properly returned on the writ into the court from which it issued, is notice to third parties, are propositions which it is not deemed necessary to discuss. It follows that Mrs. Louisa Hancock, [the purchaser after the levy of the attachment,] having bought the land under these circumstances, took it subject to the plaintiff's [attachment] lien.' To the same effect is Paxton v. Meyer, 67 Tex. 96, 98, 2 S. W. Rep. 817. See, also, County of Warren v. Marcy, 97 U.S. 96, 105; Union Trust Co. v. Southern Inland Nav. & Imp. Co., 130 U.S. 565, 570, 9 Sup. Ct. Rep. 606; Murray v. Ballou, 1 Johns. Ch. 566, 576.

For the reasons stated, we are of opinion that the title to the land was in Schuler, in virtue of his purchase at the sale in the suit brought by him, and of the marshal's deed to him. Judgment affirmed.