
    TODD & HURLEY v. GARNER et al.
    
    (Court of Civil Appeals of Texas.
    Dec. 8, 1910.
    Rehearing Denied Jan. 5, 1911.)
    1. Fraudulent Conveyances (§ 295) — Evidence.
    Evidence in a suit by J. to enjoin sale on execution against T. of land conveyed to J. by P. held to sustain findings that there was a bona fide sale of land by P. to J., and a purchase by T. from P. of vendor’s lien notes given by J., and not a purchase by T. of the land and a fraudulent conveyance to J.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Dec. Dig. § 295.]
    2. Execution (§ 39) — Property Subject — Interest in Land.
    One’s interest in land from his ownership of notes secured by vendor’s lien thereon is not such as can be levied on and sold on execution.
    [Ed. Note. — For othér cases, see Execution, Cent. Dig. § 52; Dec. Dig. § 39.]
    3. Execution (§ 172) — Relief.
    Defendants, in an action by J. to enjoin sale of land on execution against T., having by their answer asserted only a right to subject to their execution the interest of T. in the land, are not in a position to invoke exercise by the court of any equitable power to subject to payment of their judgment any equitable interest of T. in the land.
    [Ed. Note. — For other cases, see Execution, Dee. Dig. § 172.]
    Appeal from District Court, Camp County; R. W. Simpson, Judge.
    Action by J. G. Garner against Todd & Hurley and others. From an adverse judgment, Todd & Hurley appeal.
    Affirmed.
    John W. Hooper and Chas. S. Todd, for appellants. M. M. Smith, for appellees.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Writ of error denied by Supreme Court.
    
   WILLSON, C. J.

This appeal is from a judgment in favor of appellee J. G. Garner perpetuating' an injunction restraining appellants and the sheriff of Camp county from selling, as the property of T. G. Garner, a certain tract of land situated in said Camp county, levied on by virtue of an execution issued on a judgment rendered January 18, 1909, in favor of appellants against said T. G. Garner.

J. G. Garner and T. G. Garner were father and son, and resided in Camp county. In October, 1907, the latter loaned $1,250 to one Potts, -who undertook to secure the repayment of the loan by a deed of trust on the land referred to, then owned by him. The land seems to have been Potts’ homestead at the time he executed the trust deed, which for that reason was invalid. Being unable to secure the loan by such a deed, Potts proposed to convey the land absolutely to T. G. Garner for the sum of $2,100. The proposition was declined by T. G. Garner, but was accepted by J. G. Garner, to whom it was communicated. Thereupon Potts, joined by his wife, by their deed dated October 12, 1908, conveyed the land to J. G. Garner in consideration (as was recited in the deed) of the execution and delivery to them by said J. G. Garner of his six promissory notes, three of which were for $200 each, and the' other three for $500 each, payable to said Potts or bearer. The three notes for $500 each were delivered to T. G. Garner, who then paid to Potts $250 and canceled the $1,250 note Potts had made to him, which was to have ‘been secured by the trust deed on the land. These notes, as well as the three for $200 each, held by Potts, were secured by a vendor’s lien retained by Potts on the land. At the time the transactions recited occurred, appellants’ suit resulting in the judgment in their favor against T. G. Garner was pending in the district court of Bowie county.

Appellants insist that “under the pleadings and evidence,” quoting from their brief, “it is manifest that the land levied on by execution was and is the property of T. G. Garner, the execution defendant, and had been fraudulently placed in the name of J. G. Garner, father of said T. G. Garner, by a fraudulent device and arrangement between them for the purpose and with intent to hinder, delay, and defraud appellants Todd & Hurley in the collection of their debt.” The trial was before the court without a jury. The findings of the court were not reduced to writing and made a part of the record on this appeal; but the judgment rendered necessarily involved findings to the contrary of the contention made by appellants. If there was testimony to support such findings, the judgment should not be disturbed by us on any of the grounds urged in appellants’ brief. A careful examination of the testimony in the record has convinced us that it was sufficient to support, if it did not imperatively demand, findings that the title to the land had not been fraudulently passed to J. G. Garner, and that the land was not the property of T. G. Garner. According to the testimony of Potts and of both the Garners, which, in the record before us, is contradicted only by two or three circumstances of slight probative force, the transaction was untainted by fraud on the part of any one of the parties to it, and was a bona fide sale by, Potts'to J. G. Garner; and,- except as the owner of three of the six purchase-money notes made by J. G. Garner to Potts, T. G. Garner never acquired and never owned an interest in the land. It must be conceded (Willis v. Sommerville, 3 Tex. Civ. App. 509, 22 S. W. 781), and, as we understand appellants, they do concede, that an interest in the land in T. G. Garner arising alone from his ownership of notes secured by a vendor’s lien on same was not such an interest therein as could be levied on and sold by virtue of an execution issued on a judgment against him. But appellants insist that if J. G. Garner “bought the' land intending and believing he was buying it for himself, and with the intention at some future time to pay back to his _ son the $1,500 paid by him for the purchase of the land, he is nevertheless a mere holder of the legal title as trustee for his son T. G. Garner.” We do not feel called upon to determine whether the proposition just quoted from appellants’ brief is a sound one or not. In stating it, appellants assume as a fact that T. ,G. Garner paid for J. ,G. Garner $1,500 of the purchase price of the land. As shown by the record, the fact is that T. G. Garner paid to Potts $250 and canceled a note he held against Potts for $1,-250, in consideration of the transfer to him by Potts of three negotiable promissory notes for $500 each, executed by J. G. Garner in Potts’ favor, representing a part of the purchase price to be paid by said J. G. Garner for the land, and secured by a vendor’s lien thereon retained by Potts.

Another contention made by appellants is that “even if the interest of T. G. Garner,” quoting further from their brief, “was not subject to execution sale, it was nevertheless such equitable interest as might and should by a court of equity be subjected to the payment of the judgment debt of appellants.” It is, we think, a sufficient reply to this contention to say that appejlants’ pleadings did not go farther than to assert a right on their part to subject to their execution the interest of T. G. Garner in the land. If they desired to invoke an exercise by the court of power it may have had to grant them other relief, they should have done so by- proper pleadings.

We think there is no error in the judgment. Therefore it is affirmed.  