A re-examination of the record in this case leads to the conclusion that the judgment awards the appellee *Page 290 more than she claimed in her petition. She sought to have the deed of trust "declared fraudulent and inoperative as to the said $3000 note so fraudulently injected therein, and the interest thereon." As to the other notes, she sought to have it canceled only upon the ground that they had been paid, but it appears from the statement of facts and the court's findings of fact that at least the $1800 note had not been paid.
A fraudulent conveyance is not absolutely void, but only voidable, and our construction of the petition, as well as of appellee's conduct as disclosed in the record, is that she did not intend to avoid the deed of trust except in so far as it might secure the $3000 note, and that in other respects it was ratified and confirmed. Indeed, the excuse given in her testimony for the long delay in bringing this suit was that the president of the bank holding the mortgage promised her that he would collect the $3000 note out of her husband's property.
We are therefore of opinion that the judgment should be so reformed as to declare the deed of trust "fraudulent and inoperative as to the said $3000 note," but that it should be reversed and rendered in favor of appellant for the amount, principal and interest, of the $1800 note, and the $1400 note, less credits as found by the District Court, with a foreclosure of the mortgage lien upon the property in controversy. To this extent the motion for a rehearing is granted, but in other respects it is overruled.
Rehearing granted in part. Reformed and rendered.
Writ of error refused.