Arnold v. Beene
| Decision Date | 30 April 1867 |
| Citation | 30 Tex. 13 |
| Parties | JOSEPH R. ARNOLD v. FRANKLIN H. BEENE. |
| Court | Texas Supreme Court |
The fourth clause of the 2d section of the statute of frauds declares, that when any loan of goods and chattels, or slaves, shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for the space of three years, without demand made and pursued by due process of law on the part of the pretended lender, * * the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, * * unless such loan * * shall be proved and recorded as aforesaid. Pas. Dig. art. 3876, note 909. Where the loan was for more than three years, without writing, the property was subject to execution, and the fact that the negress was loaned to wait on the wife of the defendant created no trust in her favor.
ERROR from Smith. The case was tried before Hon. REUBEN A. REEVES, one of the district judges.
This was a trial of the right of property to a slave. Execution in favor of Joseph R. Arnold, against Robert O. Beene, was levied by the sheriff of Smith county, September 29, 1859, on the negro girl in controversy. The cause was submitted to the court below without the intervention of a jury.
The negro girl was levied on in the possession of the defendant in execution, and the defendant in error filed his affidavit and claim bond to try the right. The burden of proof was thus upon the claimant. Pas. Dig. art. 5312, note 1157.
The plaintiff in execution read in evidence his execution, indorsement of levy, the value of the negro, and that she was levied on at the house of defendant in execution. The claimant read in evidence a bill of sale of the negro, executed by defendant in execution to him on the 9th day of June, 1856. The defendant in execution testified that the girl was left in his possession, to wait on his wife, by claimant, at the time of the sale, the 9th June, 1856, and had remained there from that day until the day of the levy, September 29, 1859; that claimant declined to hire her, but left her there to wait on his wife, and when he wanted hire he would let him know; and when asked by plaintiff if his brother, Franklin H. Beene, did not lend him the girl, he replied, yes, that he, witness (defendant in execution), proposed to hire the girl to help his wife, that claimant did not consent to hire, but said she might remain in his possession, to wait on his wife, until called for; and the girl remained in his possession until the levy was made, without any other contract being made. The above is substantially all the evidence in the case, on which the court gave judgment for the claimant.
John C. Robertson, for appellant. It is insisted that the court erred, and gave judgment contrary to the law and evidence. By the statute of frauds, the negro in question was subject to be taken in execution by the plaintiff, who was a creditor.
The following is the language of the statute, as applicable to this case: “In like manner, when any loan of goods and chattels or slaves shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued by due process...
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Williams v. Davenport
...Tex. 565; Templeman v. Gibbs, 86 Tex. 358, 24 S. W. 792; City Nat. Bank v. Tufts, 63 Tex. 113; Hastings v. Kellogg, 36 S. W. 821; Arnold v. Beene, 30 Tex. 13. As Nixon acquired the title to this property, he could likewise sell it to another, and such purchaser would acquire the absolute ti......
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