Kellum v. Smith

18 Tex. 835

Opinion

Wheeler, J.

We do not deem it necessary to the decision of this appeal, to consider, with the view definitively to ascertain and determine, all the questions comprehended by the very able and instructive arguments of counsel. Our view of the case will not require a final opinion on the question of the validity of the will, or the right of the plaintiff to bring its validity in question in this case. We incline to the opinion that the act of adoption was effectual to constitute the plaintiff the legal heir of the deceased Smith ; if not by force of the joint resolution itself, by virtue of that and the acts of the deceased under it and in pursuance of it. It will suffice for the present, and, perhaps, for the final decision of this case, to say, upon this subject, we are of opinion that the plaintiff has an interest in the estate, either by virtue of the will, or the act of adoption, which entitles him to sue for property not legally disposed of in the administration of the estate. But what the precise extent of that interest is, it is not necessary, at present, to decide ; for whatever it be, we think it clear beyond question, that it was divested, as to the property here in question, by the sale of the 3d of April, 1849 ; unless there was fraud in the sale, affecting the title of the purchaser ; and that is the material inquiry to be determined in this case.

It is to be observed that the gravamen of the complaint, as the plaintiff represented his case, consisted in the charges of illegality and fraud on the part of the defendants, Hadley and wife, in obtaining and executing the various orders of sale of the property of the estate. In respect to the land in question, it is averred that the sale was made contrary to law, because it was for the improved land of the estate, before disposing of the unimproved land ; and was made to pay a- specific debt, when it should have been made to pay creditors generally ; because made without exhibiting a schedule of the debts of the estate; because sold to pay the debt of Merritt, Jennings & Co., for the use of Kellum, assignee of Runnells, and purchased in by Kellum with a full knowledge of the fraud and illegalities with which the sail was tinctured ; “ and because said sale was the result of a fraudulent combination between T. B. J. Hadley and said Kellum,” and because there was unimproved land, &c. The charge of combination was the ground of the sixth issue submitted to the jury, upon which the decision of the case finally turned.

From the averments of the petition it would seem that Hadley was regarded as the principal offender against the rights of the plaintiff, and that it was by the numerous acts of maladministration charged against him, that the plaintiff was principally agrieved. But Hadley and the plaintiff having, it seems, amicably settled the matters in litigation between them, his counsel were instructed to withdraw from the defence of the case, and the plaintiff was thereby enabled to introduce evidence reflecting upon the conduct of Hadley ad libitum, without any attempt or offer on his part at explanation. The manifest effect, if not the intention of this was, to enable the plaintiff to make out a case of great apparent wrong on the part of Hadley, to operate to the prejudice of the appellant. Hadley, if he had seen proper, might, perhaps, have explained satisfactorily, his conduct. But if he did so, that would acquit his co-defendant, and defeat the action ; which, by agreement of the parties, was not to be affected by their compromise ; and he did not explain, or attempt any vindication or defence of his conduct in the matter of the administration. The plaintiff was permitted to prove conduct supposed to be grossly fraudulent on his part, and apparently so, unexplained ; and the conclusion was then very naturally and easily drawn that all who had dealt with him in respect to the matters complained of had participated in his designs, and must be equally culpable. The case certainly took a very singular direction, and presented a novel appearance on the final trial.

We need not remark further on the conduct of the cause. It will suffice for its disposition, that to authorize the annulling of the appellant’s title, there must have been proof of the alleged fraudulent combination ; the evidence must implicate him in a participancy in the alleged fraud. What is the evidence relied on for this purpose ? Bunnells bad obtained an order for the sale of the property to pay a judgment he had recovered against the estate ; Kellum bought it; attended the sale ; made known beforehand his intention to purchase the property ; and did so, being the highest and best bidder, at twenty-eight hundred and seventy-five dollars, the amount of his claim. This, in short, is all the evidence discloses of the conduct of Kellum in respect to the sale and purchase of the property. And there certainly was nothing wrong in this. But, it is s aid, he traveled with Hadley and Bunnells from Houston, where they resided, to Montgomery, to attend the sale, and told the witness, Willis, in the presence of Hadley, that he came with the intention of buying the property, and how he expected to pay for it. Surely there was nothing improper in that. Doubtless he did come with that intention; and it is very likely that Hadley not only knew he was coming* for that purpose, but desired and encouraged him to come and purchase the property in order to insure the sale of it for a sufficient price to satisfy the claim against the estate. But it is said he told an untruth to Willis as to the time when he purchased of Bunnells the claim ; that he stated that he bought it before leaving Houston : whereas Bunnells says he sold it to him the evening before the sale of the property. It was certainly wrong to tell an untruth; but it is not perceived that the time when he purchased the claim, whether before or after he left Houston, was a matter of the least consequence or materiality ; or that his statement, whether true or false in that particular, could have any, even the remotest bearing upon the question of a fraudulent combination to purchase the property for less than its value. The probable explanation is, that he was in negotiation for the purchase of the claim before he left Houston; and that it was closed after they reached Montgomery. It is not very likely that he would have attended the sale at such a distance, to purchase the property with this claim, if he had not had some understanding with Runnells as to the purchase of it before he started. But whether he had or not, or whether he stated the truth to the witness or not, as to the time of the purchase, could have nothing to do with the question at issue. The only circumstance which could excite a suspicion of the fairness of the conduct of either Hadley or Kellum, was the advice of the latter to the witness, Mitchell, not to purchase, as the title was not good. But this advice was not volunteered by Hadley. It was drawn from him by the witness, who appled to him for information ; and the evidence would scarcely warrant the conclusion that he did not state what he believed to be true. Runnells, the evidence shows, must have had considerable knowledge of the condition of the estate. He had an order for the sale of this, together with other property to satisfy his claim ; and if there was no doubt of the goodness of the title, and the property was really so valuable as the witness Mitchell supposed, it is passing strange that instead of bidding off the property himself, he should, upon the very eve of the sale, have consented to take for his claim nearly a third less than its value. But with whatever intention the statement was made, it cannot affect Kellum, who was not present, and is not shown to have had any knowledge of it. It appears to.have been a strictly private communication, made to a person who was sent to consult Hadley on the subject; and there is no reason to suppose that it was known to Kellum. Clearly he cannot be affected by it. Upon the whole evidence there does not appear to be any good ground to impeach the honesty of Hadley in this matter. He tried to induce persons to bid for the property. Mitchell understood his object to be to make the sale good ; but that does not appear to have been the understanding of Willis. He says Hadley told, him it was a valuable property ; and assigned as a reason for asking him to bid, that there would be no other bidder but Kellum. He declined to bid because he did not want to purchase the property. The natural inference, upon the whole, is that Hadley’s object in getting others to bid, was to compel Kellum to bid the full amount óf his claim; which he probably supposed was more than any one else would give.

It would be a useless consumption of time to protract the discussion of the evidence relied on to make out the charge of combination and fraud. There is not only the absence of any evidence of fraud, but of any motive on the part of Hadley to defraud the estate. There is nothing in the conduct of Kellum to excite even a suspicion of fraud. And if there were circumstances of mere suspicion leading- to no certain results, the Court very properly instructed the jury that such mere suspicions cannot be deemed sufficient ground to establish a charge of fraud. (1 Story Eq. Sec. 190; 1 Hovenden on Frauds, 24.) Most of the witnesses who testified touching the value of the property, spoke of its value at the time of the trial, and not of the sale. The evidence upon that subject, therefore, is not satisfactory. But it is evident there was not such gross inadequacy of price as to amount to any evidence of fraud. The evidence is deemed so manifestly insufficient to support the verdict upon the sixth issue, on which the decision of the case of the appellant turned, as to render an extended examination of the other questions in the case quite superfluous. There can be no more satisfactory ground for setting" aside contracts, or vacating the most solemn acts and judgments of Courts, than fraud, where it is established by proof; but there could be no more dangerous doctrine, than that which would recognize a right in juries to deduce the conclusion of fraud without competent evidence. There would in deed be cause of alarm, if any man’s title to his property were liable to be annulled upon evidence such as the record in this case discloses, as affecting the appellant. Men would have to be very careful in whose company they traveled, and how they ventured to speak of the legitimate business in which they were engaged. The utmost circumspection would scarcely afford them security, if they should be unable at all times to explain, not only their own conduct, but that of the persons with whom they dealt. "

We are of opinion that the verdict was contrary to the evidence, and that the Court erred in refusing a new trial; for which the judgment must be reversed and the cause remanded.

Reversed and remanded.