
    VRATIS et al. v. WILBANKS et al.
    (No. 11617.)
    (Court of Civil Appeals of Texas. Fort Worth.
    July 3, 1926.
    Rehearing Denied Oct. 16, 1926.)
    I. Descent and distribution (§=>69 — Heirs may not set aside deed of deceased and wife given to hinder, delay, and defraud creditors.
    Plaintiffs claiming only as heirs cannot set aside deed of deceased and wife on ground that it was given without consideration and that title was held in trust, where deed was made for fraudulent purpose of hindering and delaying his creditors.
    On Motion for Rehearing.
    2. Fraudulent conveyances <§=>303(1).
    Allegation that deed was made to prevent sale of land for a “then existing indebtedness,” and evidence introduced in support thereof, held to raise issue of fraudulent purpose in executing deed.
    Appeal from District Court, Tarrant County; IT. S. Lattimore, Judge.
    Suit by Mabel Jeanette Wilbanks and another against Nick Vratis and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and rendered.
    Senter, Strong & Tester, of Dallas, for appellants.
    Phillips, Brown & Morris, of Port Worth, for appellees.
   CONNER, C. J.

This suit was brought by Mabel Jeanette Wilbanks, joined pro forma by her husband, J. P. Wilbanks, against Nick Vratis and his wife, Christina Vratis, and John Kastoleas, to cancel a deed conveying a one-half interest in a lot situated in Port Worth, Tex., executed by Peter Chokas and his wife, Mabel Jeanette Chokas, on the 5th day of June, 1916.

The pleadings and evidence show without dispute that Nick Vratis owned the lot in controversy, and on November 13,1914, conveyed an undivided one-half interest therein to Peter Chokas. On April 29, 1916, the plaintiff Mabel Jeanette and Peter Chokas were duly married. On June 5, 1916, Peter Cho-kas, joined by his wife, Mabel Jeanette Cho-kas, conveyed to John Kastoleas the undivided one-half interest that had been acquired from Nick Vratis, as above stated. This deed, by its terms, conveyed all right and title to the interest theretofore existing in Peter Chokas. On July 1, 1918, Peter Chokas was shot and killed by his wife, Mabel Jeanette Chokas, who, having been acquitted, later intermarried with J. P. Wilbanks, one of the plaintiffs. Thereafter, to wit, on February 8, 1923, John Kastoleas conveyed to the defendant Mrs. Christina Vratis the interest in the lot in controversy conveyed to him by Peter Chokas and wife, as above stated. The plaintiffs sought to set aside the deed from Peter Chokas and wife to John Kastoleas, on the theory that no consideration had been paid therefor, and that John Kastoleas merely held that title in trust for Peter Chokas, of which the defendants Nick Vratis and wife had full notice. The defendants claim the one-half interest in the lot in controversy, under the deed from John Kastoleas, as purchasers for -a valuable consideration and without notice of the alleged trust.

The trial, which was before the court without a jury, resulted in a judgment for the plaintiffs, and the defendants have appealed.

Appellants present some 28 assignments of error, urging objections to rulings of the court in the admission of evidence offered by the plaintiffs and in .rejecting evidence offered by the defendants relating to the issue of no consideration for the John Kastoleas .deed, and to declarations of John Kastoleas, the administrator of the estate of Peter Chokas and others, tending to show that John Kas-toleas never claimed title under the Peter Chokas deed, and to the evidence offered by the defendants in support of their plea of purchase from John Kastoleas for a valuable consideration without notice of a defect in his title, etc. The judgment is also objected to on the ground, substantially, that the proof fails to show that John Kastoleas gave nothing for his deed.

Our consideration of the case, however, has led us to the conclusion that much of the matter in the briefs and arguments of counsel and in the conclusions of the trial court are immaterial. In addition to the undisputed facts hereinbefore stated, it appears, presumptively, that Peter Chokas died intestate, and further that the plaintiffs in their petition attacking the deed from Peter Chokas and wife to John Kastoleas allege that said deed “was made for the purpose of preventing the sale of same for the purpose of paying a then existing indebtedness against the said Peter Chokas, and that the defendant John Kastoleas knew, understood, and agreed, at the time said deed was executed, that he was not in fact and in truth receiving any title to the property therein described, and that he was not paying any consideration therefor, but that the deed was made to him, and he was holding the papers of record title thereto, solely as an accommodation to the said Peter Chokas.”

Prom the testimony of the plaintiff Mabel Jeanette Wilbanks, we quote the following given by her in support of the plaintiffs’ plea that there was no consideration for the deed from Peter Chokas and wife to John Kasto-leas, to wit:

“I remember the execution of the deed by Peter Chokas and I to John Kastoleas, dated June 5, 1916. John Kastoleas never at any time or anywhere paid to me any money or any other thing of value for that deed, or the property therein. I do not know of my own knowledge if John Kastoleas paid to Peter Chokas any consideration. I have had a conversation with John Kastoleas after Peter Chokas’ death. Before January 29, 1923, the date shown on deed from John Kastoleas with reference to this deed and property. He came out to my house. I don’t know when it was, with reference to how long before this suit was filed. It was about a year after Mr. Cho-kas’ death that he came out to my house. He come out to my residence, to my house. He brought the deed and gave it to me. That was the deed to this property over here. He came in the house and talked to me and gave me the' deed. That was the deed Mr. Chokas made over to him of this property, and he said he didn’t want it and said, ‘You know he made the deed out on account of not paying his debts.’ ”

It was said by the Court of Civil Appeals at Galveston, in the case of Scarborough v. Blount, 154 S. W. 312, quoting from the headnote, that:

“Where a person conveys land by a deed absolute op its face and without consideration, in fraud of his creditors, although with an understanding that the land is only to be held in trust, neither he nor his heirs can enforce the trust against the grantee or a purchaser from the grantee with notice of the fraud; such conveyances.being subject to impeachment only by subsequent creditors and purchasers withoüt notice.”

The case of Scarborough v. Blount, as well as others of like import, was cited with ap-' proval in the case of Hughes v. Hughes, 221 S. W. 970, by Section A of our Commission of Appeals. The opinion of the Commission was approved by our Supreme Court, and it was therein distinctly held that where land is conveyed to . defraud, hinder, and delay creditors, as appears in the ease before us, the heirs and representatives of the grantor are in no better position to recover than the grantor himself. See, also, Rogers v. Rogers, by the San Antonio Court of Civil Appeals, 230 S. W. 489; Roth v. Schroeter (Tex. Civ. App.) 129 S. W. 203.

John Kastoleas did not appear upon the trial, the evidence tending to show that he had abandoned the country through 'fear. Peter Chokas being dead and John Kastoleas being absent, it cannot be said to be clear from the evidence of Mrs. Wilbanks, above noted, that the deed from Peter Chokas and wife to John Kastoleas was without consideration. But whether so or not, as before stated, the evidence is without dispute that the deed was made for the fraudulent purpose of hindering and delaying the creditors of Peter Chokas, and the plaintiffs, only showing right to claim as heirs of Peter Chokas, are in no position, under the line of authorities above cited, to set aside the deeds to and from John Kastoleas.

It is accordingly ordered that the judgment below be reversed and here rendered for appellants.

On Motion for Rehearing.

It is insisted that the fraudulent purpose in executing the deed by Chokas and wife to Kastoleas was not made an issue or sought to be established as a defense by the defendants in the court below, and, hence, that we erred in so ruling, particularly in view of the fact that the trial court made no finding on the issue and that there is evidence from which a contrary finding- might be inferred.

But, as pointed out in our original opinion, the plaintiffs distinctly alleged that the purpose in the execution of the deed by Chokas and wife was to prevent the sale of the property to pay a “then existing indebtedness.” No other purpose was disclosed by pleading or proof, and. Mrs. Wilbanks (née Chokas) herself introduced in evidence Kastoleas’ statement that “you (Mrs. Wilbanks) know he (Peter Chokas) made the deed out on account of not paying his debts.” Mrs. Wil-banks while testifying did not deny the fact alleged in her petition and stated to her by Kastoleas, or deny that she knew such to be the fact.

This being the state of the record, we did not and do not conceive it to be our duty to search the statement of facts for circumstances which may inferentially tend to rebut the fraud referred to, and because thereof remand the case for determination of the issue.

Motion overruled.  