Townsend, J.
Badges of Fraud [378]*378Directing Verdict. [377]*377The appellant has filed two specifications of error, as follows: “First, the court erred in directing the jury to return a verdict for the defendant (appellee); second, the verdict is not sustained by the evidence, and is contrary to law.” The contention of plaintiff seems to be that the evidence disclosed badges of fraud, by reason of which the court should have allowed the case to go to the jury under proper instructions. We have examined the evidence, and are of the opinion that there is nothing in this contention of plaintiff. Wright, when the deed of trust was executed and delivered to him, took immediate [378]*378possession, and kept the exclusive possession of the goods until the attachment in this case was levied. The fact that he had been an employe of Davis, and was familiar with the stock and the business, made him a very proper person for trustee, and better fitted to sell the stock in the interest of the creditors than a stranger would be. The contention that Davis, when he discovered he was being pressed by his creditors, directed the stock to be sold at cost, in order to raise money to pay his creditors, was not only no badge of fraud, but, in our judgment, an eminently proper thing to do. There is no pretense that he was misappropriating the proceeds of his sales. If Wright commenced selling at auction prior to the time fixed in the deed of trust for him to commenco selling at auction, this in no way invalidated the deed. It could only furnish ground for his removal as trustee. There is no evidence that Davis had anything to do with his course of proceeding, and, besides, the testimony shows that his sales at auction resulted in securing the full cost value of the goods thus sold. In directing a verdict, the court necessarily passed upon the testimony; and, after scrutinizing the testimony with some care, we are satisfied that there was very little evidence, if any, to sustain the grounds sot out in the affidavit for attachment. The charge that Davis misrepresented to Davenport what he would do is not tenable. It is shown clearly from the evidence that the making of the trust deed, at the time the conversation was had, had not been considered, and the failure of Davenport to keep his appointment, and the belief that Davenport was preparing to attach, wore the immediate cause of the execution and delivery of the trust deed. The rule in this juris diction on the question of directing a verdict is settled in De Graffenried vs Wallace 2 I. T. 657 (53 S. W. 453.) From our examination of the evidence, we think the court was fully justified in its action, and the judgment of the court is therefore affirmed.
Clayton, C. J., and Thomas and Gill, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI