October 26, 1932, Taylor recovered judgment against Sorrell for $1,000 as damages for breach of a contract made in the spring of 1931. Sorrell died December 21, 1932, and this suit was thereafter brought by Taylor against Julia Callahan, a granddaughter of Sorrell, to subject to the payment of said judgment lands which were conveyed by Sorrell to Julia Callahan by deed of gift dated June 25, 1931, acknowledged June 26, 1931, and filed for record May 6, 1932.
The case was tried to a jury upon four special issues, in substance, as follows: (1) Was Sorrell solvent on June 25, 1931; (2) when was the deed to Julia Callahan delivered to her; (3) was Sorrell solvent on that date; and (4) was the deed executed with intent to hinder, delay, or defraud Sorrell’s creditors, particularly Taylor? The jury answered the first question, “Yes”; but being unable to agree on either of the other three, the verdict was received in this form without any noted objection by either party, and the jury were discharged. Thereafter, Taylor moved for judgment in his favor non obstante vere-dicto, asserting that questions 2, 3, and 4 were immaterial; the ground stated being, in substance, that the burden was on defendant to show that on and after the date of plaintiff’s judgment Sorrell was possessed of property subject to judicial process (execution, garnishment, attachment, or other) sufficient to satisfy the judgment; that having failed to make such proof the deed (being only upon consideration of love and affection) was fraudulent as a matter of law. This motion was over^ ruled, and judgment was rendered in favor of defendant. Thereafter plaintiff moved for a new trial, assigning as ope of the grounds failure of the jury to answer questions 2, 3, and 4. However, this assignment is not carried forward in the brief, and there is no contention made, therein that the judgment should be reversed on that account. As we view the case, therefore, the only question of substance presented to this court for review is whether plaintiff was entitled to judgment as a matter of law.
The following statement we think will suffice to a clear understanding of this issue:
Sorrell up to April, 1931, owned real estate in San Saba and other counties' in west Texas worth several hundred thou-: sand dollars. He owed no debts. He was advanced in years, and in 1925 prepared a deed or deeds dividing the property among, his two children and grandchildren-; at son; a daughter, Mrs. Callahan; her two daughters, Madaline and defendant. Julia; and two children of a deceased daughter-These deeds, however, were not finally'ex-: ecuted until 1931; the first of which, con-: veying the major portion of his landed: properties to his son, Mrs. Callahan, and the two children of the deceased daughter, was executed and recorded in April, 1931. The only real estate thereafter remaining in Sorrell, with the exception of his home-' stead, he conveyed to Madaline and Julia Callahan by deeds dated June 25, 1931. The deed to Madaline was filed for record June 26, 1931. In explanation of the withholding of the deed in question from record until May, 1932, Sorrell’s attorney,'' who prepared the deed, testified: Holcomb had conveyed the property to Sorrell May 1, 1932, in payment of a debt; Sorrell agreeing to reconvey to Holcomb upon payment of the amount of the debt at any time within one year from the date of the deed. The attorney thereupon advised Sor-' rell not to deliver the deed to defendant until after May 1, 1932, because she was a minor, would not reach her majority until December 7, 1932, and it would require a guardianship and entail a great deal of trouble and expense to carry out the agreement with Holcomb. Defendant testified that her grandfather delivered the deed to' her on June 25, 1931; that she placed it in the bank, and did not record it because of the agreement between her grandfather and Holcomb. While we think the evidence would support a finding that there was no delivery of the deed to defendant until after May 1, 1932, but that up ¡to *1074that time it remained in the custody and under the control of Sorrell; nevertheless, it is quite manifest that defendant’s above testimony was direct evidence of an actual delivery to her, the grantee, which made the deed effective as a conveyance from that date. It should be noted in this connection that plaintiff stated in his motion for judgment that this testimony of defendant was “undisputed by plaintiff.”
There was ample evidence of Sorrell’s solvency on June 25, 1931. He had on that date about $4,500 on deposit in two hanks, and owned additionally some un--exempt personal property worth several hundred dollars. He had no debts or obligations, except 'the potential liability under the contract with plaintiff, which eventuated in the judgment for $1,000. It was also shown that he still had on deposit in one of these banks $1,289.98, May 1, 1932, and $1,227.64, May 6, 1932. The court declined to hear evidence upon the condition of his estate after May 6, 1932, and held inadmissible evidence which would show or tend to show that he was insolvent at the date of plaintiff’s judgment and thereafter continuously until he died.
The theory of appellant, as expressed in his motion for judgment and throughout his brief, is that it was incumbent upon defendant to show the solvency of Sorrell at and subsequent to the time of plaintiff’s judgment; otherwise, plaintiff was entitled to recover as a matter of law. In this we do not concur. Under our statute, (article 3997) conveyances, not, upon consideration deemed valuable in law, are void as to prior creditors, “unless it. appears that such debtor was then possessed of property within this State subject to execution sufficient to pay his existing debts.” It is manifest from the express wording of this statute that the time of its operation as condemning as a matter of law a voluntary conveyance of a debtor is the date of the conveyance itself, and for the purpose of this statute the issue of insolvency is confined to that date. Sherrod v. City Nat. Bank (Tex. Civ. App.) 294 S. W. 295; 20 Tex. Jur. p. 508, § 154, and p. 417, § 60.
? have no doubt of- the sufficiency of the evidence to support a fact finding of fraudulent intent, regardless of Sorrell’s solvency on the date of the conveyance.But his solvency on that date being established, plaintiff, in order to recover, must show an intent to hinder, delay, or defraud, in the execution of the deed. 20 Tex. Jur. p. 495, § 142. At most that was an issuable fact in the case; and since no error is predicated upon the failure of the jury to answer question No. 4, that issue is not before us.
The excluded testimony related to the solvency of Sorrell after the execution, delivery, and recording of the deed. This testimony had no bearing and was not admissible upon the issue of solvency vel non at the time the deed was executed. It was relevant, we think, upon the issue of intent; but since that issue went out of the case by the admission in plaintiff’s motion for judgment, and plaintiff’s failure to bring the question before us for review by proper assignment of error in his brief, the error in excluding this testimony becomes harmless.
The trial court’s judgment is affirmed.
Affirmed.