Crosby v. Huston

• Decision Date: 31 December 1846
• Citation: 1 Tex. 203
• Parties: JOSIAH J. CROSBY v. FELIX HUSTON, TRUSTEE, ETC.
• Court: Texas Supreme Court

1 Tex. 203

JOSIAH J. CROSBY

v.FELIX HUSTON, TRUSTEE, ETC.

Supreme Court of Texas.

December Term, 1846.

Appeal from Harris County.

Although no objection be made at the trial of a cause in the lower court to the authority of the plaintiff to sue, yet, if the record does not show that he had authority, the objection will be heard in this court and will be fatal.

The neglect of a party to except at the proper stage of the proceedings deprives him of all rights other than those stricti juris, and his objections when urged for the first time in an appellate court will be heard only to prevent an obvious violation of the principles of law and justice.

The conditions and solemnities annexed to the execution of a power must be strictly complied with, however unessential they otherwise might have been. Their observance is indispensable and admits of no equivalent or substitution.

When the validity, nature, obligation and interpretation of a contract depend on the laws of a foreign country, those laws must be proved before they can become guides for judicial action.

If the foreign law be not proved, the rights of the parties must be determined by our own laws.

The rule that the nature, validity, obligation and interpretation of contracts should be determined by the lex loci contractus is not to be extended to the defeat of our own laws, or of rights which accrued under them after the property was found within their jurisdiction.

The effect of registration in a foreign state cannot be extended beyond the territorial limits of the state. It is a municipal regulation which is local in its operation, and cannot affect property in a foreign jurisdiction.

The registration of a deed of trust in Texas is not the only admissible evidence of its existence, so as to affect the rights of third parties or subsequent purchasers.

Quære. Does a deed of trust create any lien on the property conveyed, unless recorded in conformity with the provisions of the third section of the act of May 15, 1838, “to provide for the foreclosure of mortgages on real and personal estates?”

The facts of this case are so fully stated in the opinion of the court it is deemed unnecessary to repeat them here. The only matters presented by the record and agreed to at bar, which have not been stated in the opinion, are:

1st. William Punchard, being called as a witness by plaintiff, was objected to by the defendant upon the alleged ground of interest. He had owned in his own right five of the negroes which were conveyed by the bill of sale to Crosby, and therefore united with Samuel W. Punchard in executing the bill of sale. These five negroes were not involved in the controversy, and the witness had no interest in the fourteen negroes which were the objects of the suit. The court overruled the objection and the witness gave testimony in the cause. While on the stand the court permitted him to examine the deed of trust to enable him to identify the negroes. This was objected to by the defendant but the objection was overruled.

Patrick C. Jack was also called by the plaintiff. He testified that he was associated with the defendant Crosby as an attorney of Bullitt, Shipp & Co., when their debt with Punchard was arranged by a sale of the negroes to Crosby; that he was apprised of the deed of trust held on Punchard's negroes, previous to their purchase by Crosby, and thinks he informed Crosby of it. The defendant moved to exclude his testimony on the ground of the relationship in which he stood to Bullitt, Shipp & Co., for whom they were then acting; but the court overruled the motion.

Thomas J. Golightly, one of the attorneys for the plaintiff, also testified in the cause as a witness for the plaintiff, and among other things he stated that the defendant, in a conversation with him (witness) subsequent to the purchase of the slaves, acknowledged that he was aware of the existence of the deed of trust in favor of Herman, Briggs & Co., before he made the arrangement with Punchard; and but for that, he would not have compromised with Punchard upon the terms he did. This testimony was also objected to by the defendant, but the objection was not sustained.

The facts proved on the trial were spread upon the record in the language of the witnesses, and in the statement of the judge in giving his opinion; and all the questions decided by the court to which objections were made by the defendant were brought up by bill of exceptions.

Gillespie, for appellant.

The appellant insists that the decree should be reversed, for the following reasons:

1. The court erred in entertaining the suit, as the authority upon which complainant relied to authorize him to maintain the suit was insufficient, the act of substitution having been made a part of the bill of complaint, the court could see its invalidity. Sug. on Powers, 14, 202; 4 Kent, 339; 3 East, 410; 1 Phil. 472; 7 Ves. 505-6; 4 U. S. Cond. 395.

There is no distinction between a legal and equitable execution of a power. 3 East, 429; Cowp. 265.

The attempt by the attorney is invalid, even if he had shown his authority. 2 Pirtle; 3 East, 438.

The second attempt cannot avail them, as they cannot be taken together. 3 East, 432.

And no after acquired interest can sustain an action already commenced. 1 Pet 310. If particular forms are pointed out for the exertion of a power, however immaterial they appear in themselves, they are essential, being considered as conditions precedent, the observance of which cannot be dispensed with. 5 Johns. 58;2 Des. 456;2 Johns. Ch. 344;4 Id. 364;5 Port. 245; Sug. 364; 6 Bac. Abr. title, Powers.

A mere naked power, unconnected with a duty or trust, is never assisted in law or equity. The raiser of the power is never aided. If any assistance is ever given, either at law or equity, it is only in the execution. 2 Sug. 58-61; 2 Law Library, 16-46; 2 Ves. 569-73; 2 Story, 321;14 Johns. 525.

In the case at bar the individual members of the firm of Briggs, Lacoste & Co. had the mere power to raise a trust, in which they are not to be aided; but when the trust is raised, a duty devolves upon the trustee to execute it and may be assisted.

If the appellee could sue from his own showing, he ought not to be permitted to interfere with the rights of the appellant. Having suffered the trust to remain so long unexecuted, after the condition broken, the possession of the property unchanged, their claim became a mere equity, not superior to ours. Indeed, they forfeited all their rights, as against others than the mortgagors by permitting the property so to remain, as it enabled mortgagors to gain credit with others, in consequence of their apparent ownership. 4 Mart. 20; 1 Laws Cond. 338; 2 Term, 587; 1 Bin. 467;9 Johns. 135, 338; 1 U. S. Cond. 320; 1 Pow. Mort. 6 to 40; 4 East, 522; Holmes Dig. 318.

Although their claim might have been legal and valid in its inception, yet their subsequent conduct has made it invalid and fraudulent as to us. 1 Pow. Mort. 16; 2 Johns. Ch. 35.

It is an undeniable position, that the possession of personalty is evidence of ownership, and that no sale is complete until delivery. 2 Kent, 20, 23, 515. This is seldom relaxed; if the property be not present at the time of the sale, possession must be taken as soon as possible. 17 Wend. 492; 2 Kent, 24, 420; 1 Pow. Mort. 19, 34, 37, 39; 1 Pet. 449;4 Dall. 358;24 Wend. 121; 3 Kent, 133; 9 Pet. 240;1 Conn. 309; 2 Pirtle Dig. 97.

There is no difference in this particular between absolute sale mortgages or conditional sales; any neglect, as leaving the vendor in possession, avoids the sale. 2 Kent, 23, 519; 17 Ves. 196 and note; 8 Johns. 338; 1 Pow. Mort. 30. Where the motive of the transaction is the security of the vendee, and the vendor retains the possession, it is a fraud. 2 Kent, 523. It is no answer to these doctrines, if it were even so, that we had notice, for if it be invalid, we can defeat it. Sug. 339; 1 Cr. 309.

It was error to permit evidence to establish or fix notice on appellant, of Briggs, Lacoste & Co.'s claim, none being averred in the bill, in consequence of which appellant was unprepared to resist it. 2 Sug. 360; 5 Ves. 32, 531; 4 Ves.

But, admitting that we were wrong in this, there was no such notice as would put a party on his guard by showing him the claim, or even informing him where it was to be found or its character but vague reports, etc. 3 Ves. 447; 2 Johns. 118, and in point 189; Sug. 497; 2 Sug. 36, 315, note; C. U. Con. 351.

Notice to affect a party should be clear, distinct and positive, setting forth the nature of the conflicting claim, and that the transaction be attended with such circumstances as to make it a clear and palpable fraud. See the above references, and also Sug. 729-30; 2 Atk. 276.

The record shows enough to set aside the testimony of W. Golightly, and should have been so considered by the court below; it comes in conflict with record evidence and must fall, and also in conflict with other and disinterested testimony. He was the leading and managing counsel in the cause, and if anything appeared to be lacking in the evidence, he was ready to stand up.

Nothing is more calculated to excite an unfavorable opinion than to see an attorney stand up to support his falling cause by supplying all deficiencies of proof from some supposed conversation with the parties adverse, and according to an apt metaphor applied to the subject, pinning the basket. 2 Phil. 406.

The evidence of P. C. Jack should not have been received; it had a tendency to impair the rights of his clients; it was their privilege, not his. 3 Stark. 229 and notes; 2 Sug. 346; 1 Phil. 140; C. U. S. Con. 310; Crosby, 280; 4 Tenn. 475.

But supposing this not so, and it is allowed, can it affect Bullitt, Shipp & Co.? We say not; their right had an inception long before this, when the property was attached, and after having a claim, there is no principle in law or equity which would prevent them from strengthening it (...