Edrington v. Rogers

• Decision Date: 01 January 1855
• Citation: 15 Tex. 188
• Parties: E. H. EDRINGTON v. W. P. ROGERS AND ANOTHER.
• Court: Texas Supreme Court

15 Tex. 188

E. H. EDRINGTON

v.W. P. ROGERS AND ANOTHER.

Supreme Court of Texas.

1855.

A conveyance of property, with a knowledge on the part of the purchaser that the conveyance was made to hinder, delay or defraud creditors, is void under the statute, as to such creditors, though an adequate consideration be paid by the purchaser. [10 Tex. 393;16 Tex. 34;19 Tex. 257;20 Tex. 247;22 Tex. 50;24 Tex. 518;28 Tex. 759.]

Although a debtor has a right to prefer one creditor to another, and, by making a transfer of his property to one favored creditor, to defeat another, provided he do so in an open manner, and without any further object than his act, upon the face of it, imports, still the law will not allow a creditor to make use of his demand to shield his debtor from his other creditors.

See this case as to an attempt by the same transaction to obtain a preference from a failing debtor, and to purchase from him property beyond the amount of the debt.

A bill of exception to the action of the judge in the court below, in interrupting counsel while arguing the law to the court, to read to the jury a statute relating to the matter in controversy, does not disclose matter of which this court can take judicial cognizance.

Appeal from Washington. Trial of the right of property, levied on by execution in favor of the appellees against William T. Austin and James F. Edrington, and claimed by the appellant. The execution was received by the sheriff on the 5th of December, 1854, and was indorsed no property of William T. Austin found, and levied on the property in controversy, as the property of James F. Edrington, on the 18th of January, 1855. The testimony was as follows: William B. Anderson testified that he had been J. F. Edrington's clerk for about two and a half years; that he heard nothing of a sale of the goods by James F. Edrington to E. H. Edrington before the first day of January, 1855, when he was told by J. F. Edrington that he had sold his goods to his brother, E. H. Edrington; that James F. Edrington employed him as clerk to remain in the store for his brother; that in this, James F. Edrington acted as the agent of his brother; that the two brothers Edrington then proceeded to take an inventory of the stock, which amounted to about $6,000 at cost price; that when taking the inventory, the store door was open and people passing in and out, and were told that James F. had sold the store to his brother E. H. Edrington; that he did not hear the trade made or know anything about it, until he was told, as aforesaid, that James F. Edrington had sold the goods to his brother E. H. Edrington; that he saw no money paid for the purchase; that E. H. Edrington gave his brother, for the goods, an account due him for groceries for Austin & Edrington, of about $1,800, with two or three years' interest, amounting to twenty-four or five hundred dollars; an account which he had for clerking for James F. Edrington, for about $1,400; his note for $1,000, due first of January next, and his note for over $900 due the 1st of January next thereafter; that he did not know anything about E. H. Edrington's account against Austin & Edrington, or whether they owed him anything; that James F. Edrington continued in the store and that he was trying to settle up his old business, and sometimes sold goods in the store and slept there.

John R. Bertrand testified that he knew nothing about the sale of the goods to E. H. Edrington, until the levy of the execution; that the sign of James F. Edrington remained over the store for sometime after the levy; that he had been clerk in the store of Austin & Edrington; that James F. Edrington still remains in the store, and may generally be found there when in Washington; that when E. H. Edrington first came to the country, he brought on a stock of groceries which went into the store of Austin & Edrington, and were of about the value of $1,200, or more, but he did not know the exact amount nor whether he had received pay.

James Nalle testified that he lived in Washington, and had sold goods there; that he heard of the sale sometime after the 1st of January; that James F. Edrington still continued in the store.

James L. Dallas testified that he was sheriff of Washington county after John H. Day; that the plaintiff's execution was placed in his hands ____ December, 1854; that he went to Washington twice to levy it; that James F. Edrington was absent both times, and he did not levy it in his absence; that this was in the last of December, and he required an indemnity bond from plaintiffs to levy upon the goods in the store, and that he did not know of any other property belonging to James F. Edrington upon which to levy the execution; that he had four executions against James F. Edrington, the same as in the hands of Day except one; that all were paid except the costs.

W. F. Jarrell testified that he was the clerk of this court (below); that in October he issued an execution on the judgment in favor of plaintiffs against the defendants, Austin & Edrington; that James F. Edrington took said execution out of the office, and it had not been returned.

John J. Day testified that he was sheriff of Washington county before James L. Dallas, the present sheriff; that a good many executions against Austin & Edrington came to his hands, and that some of them were all paid except the costs and one execution for which he was ruled, and there was a judgment against him for one hundred and seventy dollars.

James F. Edrington, called by defendant, testified that he was one of the defendants in the execution levied on the goods; that the storehouse now occupied by E. H. Edrington belonged to him, but was under mortgage to secure the payment of a large debt; that on the first of January last, he sold the stock of goods, levied on, to his brother, E. H. Edrington; that the negotiation for the purchase had been pending some time before, and was consummated at that time; that the amount of goods was about $6,000; that the sale by him to his brother was a fair, bona fide transaction, and the way in which his brother paid him for the goods was this: E. H. Edrington had an account against Austin & Edrington for about $1,800 for groceries sold them when he first came to the country, and interest thereon for two or three years, and also for his services as clerk in their store for about one year, and interest thereon, making about $500, which two sums he, said James F., had agreed to pay in the dissolution of the firm of Austin & Edrington; that his brother, E. H. Edrington, had an account against him for his services as clerk, for about $900, all of which were receipted to him, James F. Edrington, as a part of the consideration for said purchase; and that for the balance of the purchase money, E. H. Edrington gave his notes, one for $1,000, due 1st January next, and one for about $950, due 1st of January next thereafter; that he, James F. Edrington, had disposed of about two-thirds of the said notes for the payment of his debts, and that he still held, or at this time controlled, the remaining third or balance of said notes; that if his brother, E. H. Edrington, was garnisheed by these plaintiffs, he, E. H. Edrington, could not swear that he was indebted to witness, J. F. Edrington, at this time; that at the time he, the witness, sold the goods levied on to E. H. Edrington, he told said E. H. Edrington that he was largely indebted, and could not pay all the debts against him and Austin & Edrington; that an execution in favor of these plaintiffs was then in the hands of the sheriff against him, and that he was determined not to pay the debt of plaintiffs, or any other debt of Austin & Edrington, if he could avoid it; that at the time of said sale, he, witness, transferred about eighteen thousand dollars' worth of notes and accounts to E. H. Edrington in trust for the purpose of paying his individual debts, and avoiding the payment of plaintiff's judgment and all other debts of Austin & Edrington, which debts he would not pay if he could avoid it, which he told said E. H. Edrington at the time of said transfer; that the debt of plaintiffs in execution was a fair and bona fide debt, and that it was incurred by witness and William T. Austin for a valuable consideration; that immediately after the plaintiffs in execution recovered their judgment against witness and Austin, witness called on the clerk of this court and obtained from him an execution on said judgment; that it was, at that time, his intention to cause said execution to be levied on the homestead of William T. Austin, but that he did not cause said levy to be made, or deliver said execution to the sheriff, or return said execution; that after plaintiffs had their execution issued, they offered to levy on said Austin's homestead, if...