Allen v. Carpenter

• Citation: 18 S.W. 347
• Parties: ALLEN, Sheriff, <I>et al.</I> v. CARPENTER.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 27 April 1886
• Court: Supreme Court of Texas

18 S.W. 347

ALLEN, Sheriff, et al. v. CARPENTER.¹

Supreme Court of Texas.

April 27, 1886.

Appeal from district court, Wise county; F. E. PINER, Judge.

Action by J. C. Carpenter against R. T. Allen, sheriff, and Gus Lewy & Co., execution creditors, for the value of a stock of goods levied on by Allen under an attachment in favor of Lewy & Co., against T. H. Cummins. Carpenter claimed to have bought the goods from Cummins. Over defendants' objection, a witness, one Chambliss, having testified that he had been in the saloon business for seven years, and knew the value of saloon goods, was permitted to testify as to the value of the goods levied on, an inventory of them being shown him. Judgment for plaintiff for $840.15. Defendants appeal. Affirmed.

Crane, Sparkman & Trenchard, for appellants. Lovejoy, Patterson & Graham, for appellee.

WILLIE, C. J.

No assignment of error insisted on in this court questions the sufficiency of the evidence to show that Carpenter bought the goods in question from Cummins without knowledge of any intent on the part of the latter to defraud his creditors, or of facts that would have put him upon inquiry as to such intention. Indeed, it is not even assigned that the proof shows any intent on Cummins' part to defraud his other creditors by making the sale to Carpenter. The objection is that the court, by its own charge, and by refusing charges asked by the appellants, held that a creditor might receive from an insolvent debtor, in payment of a debt, an amount of property worth much more than the debt due to him when he made the purchase. It is settled law in this state that a debtor in failing circumstances may prefer a creditor, and transfer to him property in payment of his debt; and that the transfer will be good, though the preferred creditor knows that it necessarily hinders and delays other creditors, provided the value of the goods conveyed be reasonably proportionate to the amount of the debt extinguished by the conveyance. Lewy v. Fischl, 65 Tex. 311; Ellis v. Valentine, Id. 532. But it has never been held that a sale to a creditor of a larger amount of goods than was necessary to pay his debt would, from that fact alone, and under all circumstances, be fraudulent and void. While such a transaction cannot be sustained when the creditor knows the vendor to be insolvent, and that the sale is made for the purpose of defeating and defrauding other creditors, there is no reason why it should not be upheld if the vendee does not know and is not in possession of facts which would arouse the suspicion of an ordinarily prudent man, and put him upon inquiry as to the fraudulent intentions of the seller. In other words, there is no reason why he should not be placed upon the same plane with other purchasers, merely because he has paid a part of the purchase money in canceling a debt due him from the vendor, if the sale be in all respects fair and honest. It is true that a sale out of the usual course of trade must generally be regarded with suspicion, but this circumstance, like any other, is open to explanation. Here it was shown that the sale was made by a man in ill health, in fact upon the verge of the grave, and who could not, if he would, have continued or carried on any business whatever. Whether this be a sufficient explanation or not is not important in this case, for it is not contended that the facts show in Carpenter any notice of a design on the part of Cummins to defraud his creditors, such as would vitiate a sale to an ordinary purchaser; but that, no matter how honest his intentions might have been, he could not have made a valid purchase of the goods to a greater amount than was reasonably...