Henry Martel and others v. Charlotte Somers, 26 Tex. 551

Wheeler, C. J. Though the suit was instituted in the name of the administrators of Hernshein, it was for the benefit of Mrs. Somers. She was the real party plaintiff; and the amendment that substituted her name as sole plaintiff was not properly the making of a new party. (Price v. Wiley, 19 Tex. R., 142.) There was no error in permitting the amendment. It is objected that the plaintiff has not shown herself entitled as the beneficiary in the judgment recovered by Hernshein v. Martel: But it is in proof, that after its rendition the defendant, Martel, expressly admitted her right.

As between the parties this was sufficient evidence of title in the plaintiff; and it is prima facie sufficient to enable her to maintain this suit. The admissions of Henry Martel, while he continued in possession of the property, were admissible in evidence, as well to prove title in the plaintiff as that he acted fraudulently in making the conveyance.

The plaintiff seeks to set aside the conveyance from Henry to Frederick Martel, and the purchasers under the latter, on the ground that it was in fraud of her rights as the judgment creditor of the former, in order to subject the property to the satisfaction of the judgment. To make out her case, it was necessary to prove the purpose to hinder, delay, or defraud creditors, and to fix notice of the character of the conveyance upon the subsequent purchasers.

The evidence leaves little room to question that the purpose of the conveyance from Henry to Frederick Martel, was to defraud the creditors of the former, and particularly the plaintiff. But it is to be observed, the homestead of Henry was included in the conveyance, and as to that, according to the decision of this court in Wood v. Chambers, (20 Tex. R., 247,) the conveyance cannot be deemed fraudulent as to creditors, because the homestead was not liable to be taken in execution or to forced sale for the payment of debts.

Yet the judgment sets aside the conveyance, as well of the homestead as of the land not included in the homestead. As, therefore, the judgment is erroneous and must be reversed upon this ground, it is material to notice only such questions presented by the record and in argument, as will arise for adjudication upon another trial. Of these, the principal is that of notice to the defendants who were purchasers subsequently to the transaction between the Martels.

A portion of the evidence upon this point consisted of the statements of persons acting without authority or interest, and the notoriety in the community of the fraudulent character of the transaction between the Martels. And it is objected that this character of evidence was not competent to prove notice. The difficulty of laying down any precise rule as to what will amount to notice, has been often experienced and acknowledged.

Much must depend on the circumstances of each particular case-While it is settled that vague and general assertions, resting on mere hearsay and made by strangers in authority and interest, may be disregarded, and will not bind the conscience of the purchaser, or affect his legal or equitable i-ights, even when true in point of fact, yet a direct statement to a purchaser of the existence and nature of an adverse claim or title, will operate as notice, whether it be made by or on behalf of the party holding the adverse title, or by a mere stranger.

It has been said that notice cannot be binding unless it proceed from a person interested in the property and in the course of a treaty for its purchase. But this doctrine, it has been well said, must be .understood as applying to notice in its limited sense, as distinguished from knowledge, or such information as is substantially equivalent to knowledge, (Hare and Wallace’s notes to Le Neve v.

Le Neve, Beading Ca. in Eq.) If it be shown that the purchaser knew or was informed of the existence of the adverse claim or title, it cannot he necessary to prove notice, and it is immaterial whether his knowledge was obtained from the parties in interest, or from third persons, (Ibid.) From whatever quarter the information may come, it will be sufficient, if it be so definite as to enable the purchaser to ascertain whether it is authentic, and sufficiently clear and authentic to put the purchaser on inquiry, and to enable him to conduct that inquiry to the ascertainment of the fact.

It is not necessary in any case, to constitute notice, that it should be in the shape of a distinct and formal communication, and it will be implied in all cases where a party is shown to have had such means of informing himself, as to justify the conclusion that he has availed himself of it. Whatever, therefore, is sufficient to direct the attention of a purchaser to the prior rights and equities of third persons, and to enable him to ascertain their nature by inquiry, will operate as notice. (Ibid., L. C. in Eq., Theol. 2,

Part 1.) It is evident that the statement of third persons may be sufficient for this purpose; and it would seem that the existence of a fact may acquire such notoriety as to have the same effect. But it was unnecessary to rest the question of notice upon the notoriety of the fraudulent character of the transaction between the Martels; and it is unnecessary to decide whether such evidence can amount to notice, as there was other evidence of notice of a less questionable character.

As respects the defence of the statute of limitations, it is to be observed that it is a principle of universal application, that the statute does not commence to run until the cause of action accrues; and that, in this case, was not until the case of Martel v. Hernshein was finally disposed of in this court. The plaintiff's right of action was suspended by the appeal; and while it was so suspended, she had no means of enforcing her claims. Consequently, the statute did not commence to run. (Reynolds v. Lansford, 16 Tex.

R., 286.) Again; as respects the necessity of proof by the defendants, of payment of the purchase money, it is to be observed that this is not the case of a subsequent purchaser seeking to have his title preferred to a prior conveyance, on the ground that he is an innocent purchaser. If it were, the doctrine that he must prove payment of the purchase money would apply, unless he was relieved upon the ground that, as' a purchaser at an administrator’s sale,, the doctrine of Caveat emptor applies, and he was bound absolutely to the payment of the purchase money, and could not be relieved upon failure of title.

But here the plaintiff seeks to set aside a legal title upon the ground that it was fraudulent as to creditors, and she takes upon herself the burden of proof. It might be material for the plaintiff to prove that the conveyance was without ■ consideration; but it did not devolve on the defendant to prove, payment of the purchase money, in order to enable them to maintain their title, if they were not affected with notice of the fraudulent conveyance. If they were affected with notice, payment of the purchase money would not protect them; and upon this point the charge of the court was erroneous.

The judgment is reversed, and the cause remanded for further proceeding^. Reversed and remanded: