Hickman v. Hickman

27 S.W. 31, 5 Tex. Civ. App. 99, 1893 Tex. App. LEXIS 550

• Court: Court of Appeals of Texas
• Decided: November 1, 1893
• Docket: No. 382.
• Status: Published

Opinion

COLLARD, Associate Justice.

There was no error in the conclusion of the court below, that the title to the horses was in the appellee. The . attempted sale by appellee to appellant was not in writing, of course not recorded, and not accompanied by delivery, the horses running loose upon the range. Rev. Stats., arts. 4562-4564; Brown v. Vaughan, 70 Texas, 50; Bank v.Emery, 78 Texas, 512; Prude v. Campbell, 85 Texas, 4; Rankin v. Bell, 85 Texas, 36; Bank v. Brown, 85 Texas, 85.

The attempted sale was a nulity. If it had been executed in compliance with the statute, it being to defraud creditors, appellee could not disturb appellant’s rights acquired' thereunder. Seeligson v. Lewis, 65 Texas, 216; Wegner Bros. v. Biering, 65 Texas, 506.

Courts can not be used to enforce or cancel such contracts. But the attempt to sell in this case amounted to nothing; it left the title to the horses in the appellee. The entry in the record of marks and brands by the clerk, by direction of appellee, to the effect that his mark and brand had been transferred to his son, the appellant, was not an act of sale, nor did it cure the defects in the original attempted sale.

The conclusion of the court, that the possession of the horses as claimed by appellant in bar of appellee’s title was a joint possession, and was not adverse to appellee, was sustained by the testimony, and it was not error to hold that the plea of limitation was not sustained.

The judgment of the court, that F. M. Hickman was the owner of the horses, was correct, as before seen, and it was therefore not error to per petuate the preliminary injunction, restraining J. W. Hickman from handling or in any manner using the horses.

Delivered November 1, 1893.

We have examined the evidence, and conclude that it can not be said that the court awarded to defendant below a less sum on his plea in re-convention than he was entitled to under the evidence. It is not necessary to discuss the testimony. It does not show that the court, who was the judge of the credibility and weight of the testimony, has erred.

The judgment of the court below is affirmed.

Affirmed.