Farrar v. Bernheim
| Decision Date | 21 April 1896 |
| Docket Number | 427. |
| Citation | 75 F. 136 |
| Parties | FARRAR et al. v. BERNHEIM. |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. L Crawford, for appellants.
W. L. & E. J. Simkins, for appellee.
Before PARDEE, Circuit Judge, and BOARMAN and SPEER, District Judges.
The record of this cause will make plain the material facts following. In the year 1879, Reisman & Freeman was the title of a mercantile firm of the town or city of Ennis. This is in the county of Ellis, and in the state of Texas. The firm dealt in dry goods. The dry goods were vended from a storehouse familiarly known in that community as the 'Reisman Corner.' The house itself at that time was a wooden structure, and it was situated on lot No. 1 in block No. 11 of the surveyed plan of Ennis. It is this lot which is the object of the controversy the court has heard. The controversy originated in the following manner: In the year already mentioned, Reisman & Freeman failed,-- that is to say, they became insolvent; and, as they freely testify, they hastened to dispose of their property, as best they could, in such manner as would most effectually disappoint their creditors in the hope that any of the firm holdings might be subjected to the payment of the firm debts. Among these assets was the Reisman corner. This was conveyed by the deed of the insolvent firm to one Aaronson, and Aaronson paid nothing for it, but testified that he took it merely to defeat the creditors. Then the firm of Reisman & Freeman dissolved, and Reisman purchased Freeman's interest in the lot. Aaronson, at Reisman's request, made a deed of the Reisman corner to one J. R. Farrar, who, like Aaronson paid nothing. Notwithstanding this, the deed to him recited that Farrar paid $1,500 in cash, and gave his note for $1,000, as the price for the lot. Farrar was not present when Aaronson executed and delivered the deed, for Farrar, to Reisman. It is true that the original note mentioned in the deed as a part of the consideration was prepared for Farrar's signature, but he never signed it; and this appeared by the original draft of the note itself, which was produced at the trial, and identified by the attorney who drew it. The character of Farrar's holding is also made evident by the fact that he paid (or accounted for) the monthly rents to Reisman. Moreover, certain executions against Reisman & Freeman were levied on this corner lot. This was after the conveyance to Farrar. Under this levy the property was sold by the sheriff as the property of Reisman & Freeman, and bought in by Farrar. Farrar interposed no claim of any kind as the owner of the property. The evidence makes plain the fact that, one month before the sale by the sheriff, the debtor, Reisman, himself paid to the attorney who held these executions the full amount due thereon, and the attorney, at Reisman's request, wrote a transfer of the judgments to Farrar, and delivered the assignment to Reisman's attorney. This was, as already stated, a month before the sale by the sheriff, above mentioned. The night that Reisman & Freeman executed the deed to Farrar, their place of business was closed by an attachment. Besides, Farrar stated to a number of the witnesses, and at different times, that he held the property in question for Reisman. It is true that, in 1883, Farrar, being then in possession of the lot, erected upon it a brick storehouse. But it was in evidence that he advanced the cost of this building for Reisman, who, on his part, stipulated that Farrar should appropriate the rents until he should be reimbursed. There is also written evidence to show the character of Farrar's tenure. For instance, this order:
J. W. McNeil: Please pay Joe Reisman one hundred and thirty dollars ($130.00), for two months' rent on saloon.
J. R. Farrar.
April 1st, 1884.
This was after the brick building was erected. It further appears from the testimony of Reisman, that during Farrar's tenancy, and since his death, the rents of the property have largely exceeded any claim for the advances Farrar might have held against it. It appears that Reisman several times attempted to have a settlement with Farrar, in order that he might regain actual possession, and finally Farrar threatened 'to shoot the top of Reisman's head off' if he ever mentioned the subject again. After hearing this remark, Reisman preserved an unbroken silence with relation to this topic, until after Farrar's death. Farrar died in November, 1888, and his legal representatives, the defendants, are holding the Reisman corner and collecting the rents. It further appears that on the 15th day of March, 1889, Jacob...
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