Brasher v. Jemison

• Decision Date: 19 November 1889
• Citation: 12 S.W. 809
• Parties: BRASHER <I>v.</I> JEMISON <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 809

BRASHER

v. JEMISON et al.

Supreme Court of Texas.

November 19, 1889.

Commissioners' decision. Appeal from district court, Limestone county.

Action by Jemison, Grace & Co. against T. W. Brasher to set aside a bill of sale of a stock of goods belonging to J. A. Brasher. Judgment for plaintiffs, and defendant appealed.

E. P. Turner, for appellant. Burrow & Kincaid, for appellees.

HOBBY, J.

This was a trial of the right of property in and to a stock of merchandise, etc., levied on by virtue of an attachment issued out of the county court of Limestone county, at the instance of the appellees, in a suit brought by them against J. A. Brasher. The property was in appellant's possession, who filed affidavit and gave bond, etc. Appellant's claim was based on an alleged bona fide purchase of the goods from J. A. Brasher for the sum of $2,250, prior to the levy of the writ. Appellant's title was evidenced by a bill of sale dated November 12, 1883, conveying the goods involved in consideration of $2,250, executed by J. A. Brasher, and acknowledged and recorded. This conveyance was attacked by the appellees as fraudulent, and appellant was alleged to have had knowledge of the fraud. It was also alleged that the debt constituting the alleged consideration was fictitious, etc. Verdict and judgment was rendered for appellees for the sum of $600, with interest, etc.

There was evidence that appellees were creditors of J. A. Brasher, who was, on November 12, 1883, and for some time before, in failing circumstances; that on the day stated he executed a bill of sale conveying the entire stock owned by him to his brother, the appellant, for a receipted consideration of $2,250. There was also proof that this consideration was a debt due by J. A. Brasher to appellant, for money loaned and notes indorsed by the latter. There was also testimony that a part of this debt had been paid to appellant by J. A. Brasher, before the conveyance of the goods, and there was evidence to the effect that none of this debt in fact existed on November 12, 1883. The goods were variously estimated at from $1,800 to $3,000 in value. The jury, under the instructions of the court, found that the conveyance was fraudulent.

It is assigned as error that the court charged the jury that, "if the consideration, or any part of it, alleged to have been paid by T. W. Brasher to J. A. Brasher for the goods, was unreal and fictitious, then the transfer would be fraudulent." This principle ...