Cuney v. Dupree

• Decision Date: 01 January 1858
• Citation: 21 Tex. 211
• Parties: PHILIP M. CUNEY v. L. G. DUPREE, ADM'R.
• Court: Texas Supreme Court

21 Tex. 211

PHILIP M. CUNEY

v.L. G. DUPREE, ADM'R.

Supreme Court of Texas.

1858.

Where a party by his mode of pleading proposed to show that a particular transaction was not a trust, but that it was as it purported to be, an absolute sale made in good faith and for valuable consideration paid; he cannot be permitted to show as an additional independent fact, that the sale was made to delay, hinder or defraud his creditors, to defeat the trust.

A contract reduced to writing may be affected by a verbal trust. But such trust, to be enforced, must be established with clearness and certainty. 8 Tex. 191;9 Tex. 482;10 Tex. 159;27 Tex. 231.

Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.

Suit by defendant in error, administrator of Lewis G. Dupree, to recover slaves which he alleges to have been conveyed by his intestate to the plaintiff in error by a bill of sale absolute on its face, upon the averment that the bill of sale was, though absolute in its terms, made only in trust to secure certain amounts paid by the plaintiff in error for the intestate; and that the reasonable hire of the slaves had more than discharged the amount so paid.

The plaintiff in error answered by denying the allegations of the petition, and specially setting up that he purchased said slaves in good faith, and for a valuable consideration which he had paid; and denying that the bill of sale was ever intended or understood as a mortgage. An amended answer, pleading the statute of limitations, was put in; also setting out specifically various advances and payments made for the benefit of the intestate Dupree, and which were alleged to be payments on the purchase money of the negroes sued for.

On the trial, the defendant in error proved by a witness, that Cuney admitted in conversation with him, a short time after the death of intestate, that he had the negroes on hire, and was willing to keep them on fair hire until they worked out what he had paid or had assumed to pay for intestate. Proof was also made of the value of the negroes and their hire. In defense, the plaintiff in error introduced a copy of the bill of sale from Dupree and wife to him, and evidences of various payments made by him of Dupree's debts and orders, and of advances made to him and for his use in various ways. Also the evidence of several witnesses proving the statements of Dupree and wife, to the effect that they had sold him the negroes, and the transcript of a judgment against Dupree, in Washington county, for some five thousand dollars.

The following charges, asked by the defendant in error, were given by the court:

1st. “That although the bill of sale purports to be an absolute bill of sale, still if the same was in fact, at the time it was given, intended to secure the sums of money assumed or to be assumed by defendant for L. G. Dupree, that the transaction will be held as a mortgage; and if the jury believe from the evidence, that the contract was in fact thus understood between the parties as a security for the payment of debts of Dupree, assumed by defendant, Cuney, that they will find for the plaintiff.”

2d. “That the testimony of one witness, sustained by corroborating circumstances, is sufficient to control the import of a deed or bill of sale absolute on its face; and the jury may take into consideration the situation of the parties, the embarrassed condition of Dupree, the real object and intention of the parties as disclosed by the whole testimony, in determining whether the same was an absolute sale, or whether only intended to be a security for money advanced or to be advanced.”

3d. That if the jury believe from the evidence, that the bill of sale, though absolute on its face, was in fact intended as a mortgage, that in that event the statute of limitations would not afford any bar to the plaintiff's action.

The plaintiff in error asked the court to give eleven distinct instructions, all of which were given except two, which are in the following words:

“That if they believe from the testimony, that Dupree and wife conveyed said negroes to Cuney with the intent or purpose to delay, hinder, or defraud their creditors, they will find for the defendant.”

“That if said conveyance to Cuney was fraudulent on the part of Dupree and wife, it matters not as between these parties whether or not the purchase money was paid.”

There was a verdict and judgment in favor of the defendant in error, for the negroes and for a balance of $990.84.

The giving of the charges asked by the defendant in error, and the refusal to give those asked by the plaintiff in error, are assigned as errors; also that the verdict was against the evidence, and that the court erred in refusing a new trial.

F. Lipscomb & Z. Hunt, for plaintiff in error. The instrument in question was solemnly acknowledged by the intestate and his wife before a competent officer, and they state in that acknowledgment, that the instrument was made for the “““purposes and considerations therein set forth and contained:” then according to that acknowledgment it must have been an absolute sale, for the sum of money specified in the instrument. Does not this acknowledgment plainly show the intention of the parties, and ought it not to estop the defendant in error from showing that his intestate meant and intended an instrument different from the one thus acknowledged? Is not this acknowledgment a binding admission of the intention of the parties? Are not heirs and privies bound by admissions made in or about any instrument? In addition to this, the witness Bradbury, the officer before whom the acknowledgment was made, seems to make it clear beyond a possible doubt what the parties intended.

In Stampers v. Johnson, 3 Tex. p. 1, there a defeasance was taken. In Carter v. Carter, 5 Tex. p. 93, the eviidence was, that at the time of the contract, it was but at most a conditional sale, and that the property might be redeemed, and there was no acknowledgment by the vendor, as in this case, of the express “purposes” and “considerations” for which the instrument was made. In the case of Stephens v. Sherrod, 6 Tex. p. 294, there was also a defeasance to the bill of sale. In Mead v. Randolph, 8 Tex. 191, the matter sought to be explained was a bond for title to land, and that the bond was not intended as a contract for the sale of land by the parties. In this case there was no acknowledgment before a proper officer, as in the case at bar, as to what the parties meant, and intended by the instrument. It is expected by us that counsel for defendant in error will rely upon the foregoing and similar authorities to sustain their case; but we think that those authorities, according to the views above taken, are not in point, and they fall short of coming up to a strong feature in the case, to wit: that the parties in those cases never made, as in this case a public declaration and acknowledgment, as to the meaning and intention of the instrument, before an officer authorized by law to take such acknowledgment.

To show that this conveyance was a bill of sale, and that the weight of the evidence is to that effect, reference is made to Bradbury's testimony, where he states that various debts of the intestate were taken into account at the time of making the conveyance, the payment of which being assumed, and gave a draft to said intestate for the balance of the purchase money.

H. N. & M. M. Potter, also for plaintiff in error. For the plaintiff in error we shall examine but one proposition, the other questions presented by the record having been fully argued by the other counsel for plaintiff in error.

The second assignment of error is as follows: “The court erred in refusing instructions asked by defendant.”

The fourth instruction asked by defendant and refused is as follows:

“That if they (the jury) believe from the testimony that Dupree and wife conveyed said negroes to Cuney, to the intent or purpose to delay, hinder or defraud their creditors, they will find for the defendant.”

The case made by the petition is, that the bill of sale from Dupree and wife to Cuney was intended as a mortgage. To which the defendant asserts an utter denial. The bill of sale, a copy of which is attached to the petition, is absolute on its face, and Cuney took possession of the negroes under it and held them. The negroes conveyed to Cuney was all the property that Dupree had, with the exception of one or two horses; and the petition states, and the evidence fully shows, that Dupree was heavily indebted at the time of the conveyance. Upon the face of the transaction, then, as shown by the petition and evidence, it would appear that the conveyance was made by Dupree and wife with the intent and purpose of delaying, hindering or defrauding their creditors. The evidence clearly tended to prove this proposition; and if so, the instruction asked should have been given by the court. It is no answer to this to say that the defendant did not set up as a defense in his answer, that the conveyance was made to delay, hinder or defraud the creditors of Dupree. This was not necessary. The issue tendered by the plaintiff was as to the conveyance being a mortgage; and whatever the understanding might have been between Dupree and Cuney in relation to the conveyance, yet under the denial that the instrument was intended as a mortgage, the defendant had...