Another v. Floyd's Adm'r.

• Decision Date: 01 January 1853
• Citation: 10 Tex. 159
• Parties: MCCLENNY AND ANOTHER v. FLOYD'S ADM'R.
• Court: Texas Supreme Court

10 Tex. 159

MCCLENNY AND ANOTHER

v.FLOYD'S ADM'R.

Supreme Court of Texas.

1853.

Parol testimony is admissible to prove that a deed or instrument, absolute on its face, was executed and delivered upon certain trusts not reduced to writing, and which the grantee promised to perform. (Note 29.)

The doctrine of implied trusts is applicable to a deed obtained fraudulently and without consideration.

Where the court has so ruled upon the pleadings as that the defendant may have been thereby deprived of a legal defense: as where exceptions have been sustained to a plea which presented a good defense in law, though upon the trial the evidence conduced to show the facts to be otherwise than as stated in the plea, the court will not assume that, if it had been permitted to stand, the defendant would not have produced evidence sufficient to establish its truth, and will reverse the judgment.

But where, notwithstanding the ruling upon the plea, the case has been tried upon the matters embraced in it, the defendant having introduced evidence full to those matters, and the jury having been instructed in reference to them, and having passed upon them, as if they were legally in issue, and it has been made manifestly to appear that the plea could not possibly have availed the defendant had it been permitted to stand; and, consequently, that he cannot be benefited by a reversal of the judgment, we can perceive no good reason why the erroneous ruling upon the sufficiency of the plea should not be treated as a mere irregularity in practice, not affecting the real merits of the controversy, and not affording a ground for reversing the judgment.

It is error to allow damages for the detention of slaves where the detention only is proved, and there is no evidence referring the damages to any known rule regulating the measure of damages. (Note 30.)

While a court of justice will not lend its aid to enforce an executory contract which is tainted with fraud, it will be equally averse to assist the fraudulent grantor to rescind an executed contract.

A bill of sale made to defeat one previously made to defraud creditors is fraudulent and void as to all persons except the parties and their privies; but as to them it is valid. (Note 31.)

Appeal from Montgomery. The appellee's intestate brought suit against the appellants, alleging that in October, 1842, he purchased of McClenny, for the consideration of $5,000, certain negroes; that McClenny executed to the plaintiff his bill of sale of the negroes, (which was made a part of the petition) and delivered possession in pursuance thereof; that they remained in the plaintiff's possession until he was forcibly and wrongfully dispossessed of them by the defendants.

The defendants pleaded, in substance, that the bill of sale was procured from the defendant McClenny by false and fraudulent pretenses on the part of the plaintiff; that one Knight had forcibly taken and feloniously held possession of the negroes, and that the defendant McClenny was induced to execute the bill of sale to enable the plaintiff to recover the negroes for him from Knight, and for no other purpose; and that it was without consideration. There was a demurrer to the answer sustained. The defendant McClenny thereupon amended his special plea, alleging that the bill of sale was obtained from him by Floyd without consideration, and under the false and fraudulent pretense that he, Floyd, would thereupon act as agent for the defendant peaceably and lawfully to reclaim his negroes from one Knight, who had forcibly and unlawfully entered upon the premises of the defendant and taken away the negroes, without any claim to them; that he was thereby induced to make the bill of sale; that it was intended for no other purpose than to enable Floyd, as agent of McClenny, peaceably and lawfully to regain possession of the negroes for him. The plaintiff excepted to the amended plea; and his exceptions were sustained.

The case was tried upon the plea of “not guilty” and a general denial by both defendants, and the separate answer of the defendant McGown, claiming to be a purchaser for a valuable consideration without notice, except of a ““sham sale” from McClenny to Floyd.

There was evidence to the effect that McClenny owned the negroes in question in the State of Alabama previous to his removal to Texas; that he was largely indebted, and that he had conveyed the negroes in trust, in 1839, to secure the payment of certain of his debts; that to avoid the payment of these debts, he employed Knight to remove the negroes to Texas in 1840, and gave him a bill of sale of them; that Knight brought the negroes to Texas and delivered them to McClenny; that he afterwards in 1842 took them from the residence of McClenny in Montgomery county, in the night, and proceeded with them in the direction of Louisiana. Floyd took the matter in hand for McClenny, who was his son-in-law; took from him the bill of sale for the negroes, the better to enable him to regain the possession from Knight, whom he and McClenny with others pursued and overtook in Houston county. They had him arrested there on a charge of negro stealing, and taken before a justice of the peace for examination. Knight exhibited before the justice a bill of sale of the negroes from McClenny, made in Alabama, under which he claimed the right to hold them. Floyd also exhibited his bill of sale. McClenny proposed himself as a witness, made oath that he had sold the negroes to Floyd and had no interest in the controversy between Floyd and Knight. The parties submitted their controversy to arbitrators, who awarded the negroes to Floyd. They remained in the possession of Floyd and McClenny, who lived together, for several months. Floyd during that time stated to witnesses that he paid nothing for the negroes; that they were not his, but McClenny's; and that he had no other interest than as McClenny's agent to reclaim the negroes from Knight. The parties had a dispute, and in Floyd's absence from home, McClenny removed the negroes from the place; and about the same time made a bill of sale of them to his co-defendant McGown.

Numerous instructions were asked by the defendants touching the matters relied on in their defense, of which some were given and others refused. The third, which was refused, and the tenth which was given, will sufficiently explain the view taken by the court of the law of the case, in the instruction to the jury. The third instruction asked was, that, “If the contract between McClenny and Floyd had for its object and consideration a fraud on Knight, and both McClenny and Floyd were guilty of the fraudulent intention, neither Floyd nor McClenny can found a claim upon such contract in court.” The tenth was, that, “If Floyd fraudulently obtained the bill of sale from McClenny, and McClenny assented to it by reason of the fraudulent procurement of Floyd, and without the intention to affect the claims of any third person, Floyd obtained no title thereby.”

The jury returned a verdict for the plaintiff for the negroes, assessing their value separately, except as to two children estimated together at three hundred dollars; and they assessed the damages of the plaintiff at three thousand three hundred and sixty dollars. The court gave judgment upon the verdict for the negroes or their value in the alternative and three thousand two hundred and sixty dollars damages for the detention of the negroes.

The defendants moved the court to grant them a new trial, which was...