Cox v. Shropshire

• Decision Date: 01 January 1860
• Citation: 25 Tex. 113
• Parties: ISAAC W. COX v. B. SHROPSHIRE.
• Court: Texas Supreme Court

25 Tex. 113

ISAAC W. COX

v.B. SHROPSHIRE.

Supreme Court of Texas.

1860.

That one of the parties to an action of trespass to try title claims under a deed alleged to be void, has never been deemed to require that the vendor in the deed be made a party.

See this case for facts sufficient to show an abandonment of the homestead.

A conveyance of property which is exempt by law from execution or forced sale (as of a homestead while it remained such) cannot be a fraud upon creditors. Such a conveyance is not within the purview of the statute of frauds. 20 Tex. 247;26 Tex. 551.

If the deed, however, was simulated and colorable merely, made upon a secret trust, that the vendee should hold the property for the vendor, after the latter had abandoned the use of it as a homestead; a mere pretense and contrivance to protect the property from the claims of the creditors of the vendor, after, by its abandonment as a homestead, it had become liable to be taken in execution; the property remains in the vendor, and is liable to be taken in execution for his debts.

The charge of the court in this case held not to be objectionable, as charging upon the weight of the evidence, or as calculated improperly to influence the minds of the jury. Under the pleadings and facts, and the charge so clearly presenting the true issue in the case, it was not error to remark in the charge, upon the inference which may be drawn from the failure of a party to introduce explanatory evidence concerning a transaction charged to be fraudulent, when it is in his power to explain.

APPEAL from Fayette. Tried below before the Hon. James H. Bell.

This was a suit brought by Benjamin Shropshire against Isaac W. Cox, of trespass to try title, on the 13th day of October, 1856, for the recovery of a tract of land containing sixty-nine acres. The petition of the plaintiff alleged that the defendant holds possession of the land by virtue of a deed which is fraudulent and void.

The defendant answered by a plea of the general issue, a special denial of the alleged fraud, and the further answer, that he purchased the said tract on the 1st day of September, 1854, at the price of $8 per acre from James M. Cox, and his wife E. H. Cox, and received from them a deed thereto; that at the time of the purchase it was and had been previously owned and occupied as their homestead, and that since the purchase, he has himself owned and occupied it as his homestead; and that the deed aforesaid was filed for record on the 29th day of September, 1856, and was duly recorded in the county clerk's office of Fayette county, on the 6th day of October, 1856. Defendant also alleged that the plaintiff, at the time of acquiring his pretended title, had full knowledge of the defendant's claim and title.

The plaintiff, by amendment to his petition, by way of replication, alleged that the pretended sale to the defendant from James M. Cox and his wife, was fraudulent and void; that the defendant collusively and fraudulently entered into said contract for the purpose of concealing the title of James M. Cox, and to hinder and delay the rights of all existing creditors against said James M. Cox, or all who might hereafter become such, and especially for the purpose of hindering and delaying one A. C. Hosmer, under whose execution sale he (the plaintiff) had purchased the said land. That by said pretended and fraudulent sale and transfer no title to said land ever really passed to the defendant, but remained in said James M., as before the making of the deed, and liable for his debts. That the deed was a sham and a fraud, that the consideration of $800 as set forth in the deed, was never paid by the defendant to James M. Cox and his wife, nor has any consideration for the pretended purchase been paid.

On the trial, it was agreed that the title from the government down to James M. Cox is regular. The plaintiff relied on a sheriff's deed to him for the land, dated the 7th day of October, 1856, made by virtue of a sale under an execution which was issued on the 28th day of April, 1856, to satisfy a judgment in favor of A. C. Hosmer against said James M. Cox, rendered on the 25th day of March, 1856, for $1,500, the plaintiff being the purchaser at the sheriff's sale for the sum of $68.31.

The defendant read in evidence a deed to the land from James M. Cox and his wife, dated the 1st day of September, 1854, which deed recited the consideration of $800, the receipt whereof was therein acknowledged by the grantors. The deed was filed for record and recorded as stated in the defendant's answer.

It appeared from the testimony that in April, 1853, A. C. Hosmer instituted a suit in the district court of Fayette county, against James M. Cox for five thousand dollars, as damages sustained by the mal-practice of the said James M. Cox as a physician, in which he recovered a judgment for fifteen hundred dollars, as aforesaid. That during the pendency of the suit the defendant thereto sold all his property, and in the fall of the year 1854 left the county and went to Hill county. He declared his intention to sell all his property except his homestead (which he said the law would protect) to avoid the payment of the judgment which might be rendered in the case of Hosmer against him. He offered to sell to one of the witnesses a valuable negro boy, at a price so low as to cause him to be astonished, and on inquiring of him as to his reason for offering such a sale, he declared his object as stated above.

The defendant in this suit, Isaac W. Cox, stated either at the term at which the case of Hosmer v. James M. Cox was tried, or at the previous term, that his brother James M. would have no property that execution could reach by the time that suit was terminated, and that the land (now in controversy) on which he (Isaac W.) was then living would be his when he paid for it. It was proved that Isaac W. had but little or no property; that James M. had lived on the land as their homestead about eighteen months before he sold to the defendant, and that the latter went into possession about eight days after the former left it, and has since continued to occupy it.

The defendant, at the sale by the sheriff, forbade the sale, and stated that his deed was on record. It was further proved that the defendant had sold him land near Rutersville before he obtained the deed from James M.; that the land in controversy was then worth ten or twelve dollars per acre, and that the suit of Hosmer was of general notoriety in the neighborhood.

It was proved that James M. Cox, previous to the termination of the suit with Hosmer, was residing in Hill county, and one witness testified that he offered to buy land from him in that county. He returned on a visit in October, 1856, to Fayette county, and then stated that he was residing in Hill county, where he was engaged in speculating in reserve lands.

The court charged the jury as follows:

“The law exempts from execution or forced sale the homestead of every head of a family.

1st. If you believe from the evidence, that the land in controversy was the homestead of James M. Cox, at the time of the date of the deed to Isaac W. Cox, in September, 1854, and if you believe further from the evidence, that Isaac W. Cox purchased the land in controversy from James M. Cox, and that the deed from James M. to Isaac W. was executed in September, 1854, as it purports to be, and that Isaac W. has lived on the land as his homestead since James M. left it, then the plaintiff can not recover in this suit, and you will find for the defendant, even though the deed was not filed for record until after the levy of execution upon the judgment, under which plaintiff in this suit claims.

2d. Whenever a man abandons his homestead, it becomes liable to execution for his debts; but is not deemed to have abandoned it because he leaves it temporarily without acquiring another. The jury must be satisfied by evidence that the party has left his homestead with the intention of abandoning it, before it can be subjected to the payment of his debts.

3d. If you believe from the evidence, that there was no sale of the land from James M. Cox to Isaac W. Cox, but that the pretended sale and subsequent possession by Isaac W. Cox was a mere fraudulent device or scheme to enable Isaac W. to hold the land for James M., and to protect it from his creditors; and if you believe that while this state of things existed, James M. abandoned his homestead; then, after his abandonment of the land as a homestead, it became liable to be levied on and sold for his debts; and if all these things are so, then the levy, sale and sheriff's deeds, which have been read in evidence, vest a good title in the plaintiff Shropshire, and you will so find your verdict.

4th. It is a rule of law that fraud must be proved, and cannot be presumed. But this only means, that in order to authorize a jury to find that a transaction is fraudulent, there must be evidence either positive of the fraud, or circumstances from which fraud may be reasonably inferred.

5th. The failure of a party to show payment of the purchase money, or to show how a transaction was made, when it lies in his power to do so, and where fraud is charged in relation to it, is one circumstance which a jury may properly consider as affording some evidence of fraud.”

The defendant excepted to the foregoing instructions, because those given on the question of fraud were not authorized by the pleadings, nor by the facts of the case; and to the fifth instruction he specially excepted, because the deed from James M. Cox and his wife recited the payment of the purchase money, which was prima facie evidence of the fact.

Verdict and judgment for the plaintiff for the land sued for. The questions presented by the assignment of errors, sufficiently appear from the foregoing exceptions taken to the charge of the court.

L. F. & W. Price and J. H. Robson, for the appellant. 1st. It is...