King v. Russell

40 Tex. 124

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Reeves, Associate Justice.

There was no error in correcting the statement of facts in accordance with the evidence of the witness. The statement had not been approved by the judge, and when he was satisfied that any part of the evidence had been omitted, it was proper to make the correction, and incorporate into the statement the omitted testimony.

The record failing to show any action of the court upon the exceptions to the petition or the answer, the alleged errors of the court in that respect will not be revised. The error, if any was done either party, is not apparent, and will not be further noticed.

The deposition of the witness Hartzell was admissible as evidence of the execution of the deed from Thomas King to John C. King, by the former, but not for the purpose of validating the notary’s certificate, which was shown to be defective for want of his official seal. Had the deposition been admitted for such a purpose, it would have been error, for the reasons assigned by the defendant. The witness Hartzell, who was a notary public for Navarro county, and who took the acknowledgment of Thomas King in the deed of conveyance to J. G. King, but from some cause failed to affix his seal of office, was a competent witness to prove those facts as showing his title from Thomas King, but not to fix notice on the defendant. Under the charge of the court, the jury could not have understood that Hartzell’s evidence was received to prove notice to the defendant. The court charged, that the deed was not constructive notice to the defendant or any other person. “But it is not by record only of a deed that a party can have notice of the existence of a claim or title. Possession by the claimant or his agents is equivalent to notice by registration.”

Another objection was, the plaintiff was allowed to prove by Holmes, former sheriff of Orange county, that R. B. Russell pointed out the property in controversy for levy under Gilmer’s execution against Thomas King, when it appeared from his return on the execution to have been pointed out by the plaintiff, Gilmer.

The sheriff was probably mistaken when he says that Russell pointed out the lots to be levied on, as it was proved by Gilmer himself that he directed it to be done, and that he purchased the property at the sheriff’s sale for R. B. Russell. Russell testifies that he was absent from the county at the time of the levy and sale, and that he gave the sheriff no directions about the levy.

In Ayres v. Duprey, 27 Texas, 599, the court says: “As a general rule, in the absence of fraud or mistake, it certainly cannot be maintained that the official return of the sheriff can be varied or contradicted by his parol testimony.”

We think the attention of the sheriff might have been called to his return, and that he was a competent witness to show that it was made by mistake or inadvertence, if such was the fact.

On the trial the plaintiff offered in evidence the deposition of B. D. Wood, which was objected to by the defendant, but the objection was overruled by the court, and the plaintiff was permitted to read the evidence to the jury. The deposition had been taken by the defendant, and crossed by the plaintiff, and on defendants declining to offer it in evidence, the plaintiff was allowed to offer it, and in this there was no error.

Both parties must be considered as having a joint interest in the deposition when cross-interrogatories have been filed and answered, and either party had the right to use the deposition on the trial, and the plaintiff’s right could not be defeated because the defendant declined to read it. (Paschal’s Digest, Article 3740.)

The third interrogatory, the answer to which was objected to, did not ask for the declarations of John 0. King; but the objection is not on the ground that the answer is not responsive to the question. The answer, however, is responsive to other questions which the witness answered by referring to his response to the third question, and so the parties seem to have regarded it on the trial.

No reason is shown for rejecting the evidence of the witness William Smith, by whom it was proposed to prove the alleged transfer of property from Thomas King to Melton, about the time Gilmer brought suit against King; and in rejecting the evidence it is believed that there was error.

These rulings have been noticed because it may be desired to have the opinion of this court on these questions in another trial, as the' cause will have to be reversed for error in the charge to the jury.

The portion of the charge deemed to be erroneous is as follows:

“When a person in failing circumstances and in debt makes a deed to his son, and the deed is attacked on the ground of fraud, with intent to hinder or delay creditors, it is incumbent on the son to prove the payment of the purchase money, and that said purchase was not made for the purpose of defrauding creditors.”

The burden of proving fraud was on the defendant, and the fact that the conveyance was made to the son was not of itself sufficient to raise the presumption of fraud. The fraudulent intent of the grantor must first be shown before it is incumbent on the grantee to prove payment of the purchase money. (Belt v. Raguet, 27 Texas, 479.)

In Baldwin v. Peet (22 Texas, 714), the opinion being delivered by the present Chief Justice, it is held, “that our courts do not possess a power similar to that of courts of equity, of finding one material fact that is not admitted by inference from those that are admitted, and hence that the court had no right to infer that the deed in that case was made with fraudulent intent, from certain badges of fraud established in reference thereto.”

In Vanhook v. Walton (28 Texas, 72), it is said: “If fraudulent intent was only to be deduced from facts and circumstances which the law considers as mere badges of fraud, and not fraud per se, these should have been submitted to the jury, so that they might have drawn their own inferences as to the fairness or fraudulent character of the transaction.”

The principle enunciated in these cases is, that the circumstances which the law considers as badges of fraud only, and not fraud per se, should be submitted to the jury, so that they may draw their own conclusions as to the character of the transaction.

It is only after the fraudulent purpose of the grantor is shown that the burden of proof is changed, and the purchaser is required to prove that he paid value.

It is true that the purchaser must know or'have reason to believe that the deed was made to defraud creditors, but if he should accept a deed and should fail to show that he had paid a valuable consideration after the fraudulent purpose of the grantor had been proved, it would be evidence of participation in the fraud.

It is not necessary that the purchaser should have intended fraud in fact, in order to avoid the deed, except in so far as notice that his vendor was committing a fraud would be imputed to him as fraud in law, and make him a mala fide purchaser, although he paid value.

The charge referred to is not qualified in other portions of the charges, and the effect of it was to impose on the defendant the burden of proving payment of the purchase money, and that the purchase was not made for the purpose of defrauding creditors, without defining the nature of the attack that must have been made on the deed as the antecedent of such proof, and from which the jury could arrive at a proper conclusion of the fraudulent purpose of Thomas King in making the deed. It was not competent for the court to say that these facts were prima facie evidence of fraud.

As the case is presented, there was no error in refusing the instructions asked by the plaintiff. So far as they are applicable to the case, they are embraced in the general charge. But because of error in the charge of the court, the cause is reversed and remanded for further proceedings.

Reversed and remanded.