Gibson v. Hill
| Decision Date | 01 January 1859 |
| Parties | HENRY GIBSON v. S. W. HILL. |
| Court | Texas Supreme Court |
Where the judgment of the district court has been once before reversed, and the cause remanded for another trial, because the verdict was not supported by the evidence, and on a second trial, the verdict of the jury, upon very nearly the same testimony, resulted as did the first; this court, although unwilling to disturb a second verdict, will again reverse the judgment, if the case present no conflict, but only a deficiency of testimony to support the verdict.
In a case involving the question, whether a conveyance was fraudulently made to hinder or delay creditors, if the vendor and vendee reside together, there should be the most indisputable evidence of good faith in the contract of sale; for, from the very nature of things, it is almost impossible to tell with whom the possession of the property does, in point of fact, remain. Ante, 52; 28 Tex. 739, 792.
See this case, for circumstances which were held insufficient to support a verdict in favor of the claimant of property levied upon as that of the defendant in execution, where the conveyance to the claimant was alleged to have been made to delay and hinder creditors.
APPEAL from Calhoun. Tried below before the Hon. Fielding Jones.
Henry Gibson, the appellant, recovered a judgment in the district court of Matagorda county, against Claiborne Hill and William M. Varnell, on the 20th October, 1856. On the 29th October, 1856, execution issued, directed to the sheriff of Calhoun county; and on the 21st November, 1856, it was levied on certain slaves, as the property of, and found in the possession of, Claiborne Hill, one of the defendants.
On the 25th November, 1856, S. W. Hill, the son of Claiborne Hill, made affidavit, setting up claim to the negroes levied on, and executed a bond to try the right of property; which, with the copy of the original execution, and indorsement of the sheriff, was returned to the district court of Calhoun county.
Gibson alleged in answer, that the claim of S. W. Hill was fraudulent and void, and made to hinder and delay creditors. Issue was joined; and there was a verdict and judgment for the claimant, at the spring term, 1857. From this judgment there was an appeal to the supreme court, where the judgment was reversed, and the cause remanded.
At the fall term, 1858, the cause was again tried, and there was a verdict and judgment for the claimant, and from this last judgment, a motion for a new trial having been overruled, the plaintiff, Gibson, again appealed to this court.
On the trial, the claimant, S. W. Hill, relied on a bill of sale from his father, Claiborne Hill, for the negroes levied on (bearing date 17th October, 1856), four days before the rendition of the judgment in Matagorda county: the consideration expressed being $1,931.13, evidenced by an obligation from S. W. Hill to Claiborne Hill, of same date, assuming the payment of the following debts for his father: 1. Of $413.15, to A. Gillet, secured by mortgage on one of the negroes. 2. Of the sum of $1,319, alleged to be due by Claiborne Hill to the estate of his father, Alexander Hill, in the state of Alabama. 3. Of $300, to be paid in cash. The only proof of payment was of the sum of $250 to Buckhart & Sheppard, of Matagorda, and the satisfaction of the mortgage debt to Gillet. There was no proof of payment of the debt in Alabama.
The negroes remained in the possession of Claiborne Hill (whose residence was Old Indianola, Calhoun county), after the sale to S. W. Hill, and were so in his possession at the time of the levy.
The only explanation that was given of the fact that possession remained with the vendor, Claiborne Hill, was his own testimony, to the effect, “that his son, though absent in Lavaca, at the time of the levy, lived with him; that he kept his trunk and personal effects at his house; that his son was in the habit of spending much of his time, at the period of the levy, in Lavaca, for the purpose of ‘endeavoring to get into business;’ that it had always been customary for his children to make their father's house headquarters and home, when not engaged in business.” And the testimony of one Varnell, “that S. W. Hill resided with his father, Claiborne Hill; was backward and forward between Indianola and Lavaca, a good deal, about the time of the levy; but was not engaged in business; that S. W. Hill was in the habit of residing with his father, when not engaged in business.”C. C. Howerton testified that he considered and recognized S. W. Hill as a resident of the town of Lavaca; and James Howerton testified to the same effect.
It appeared from the testimony of Claiborne Hill, that
The valuation of the negroes indorsed on the return of the sheriff was $2,500, “subject to mortgage” of $413 to A. Gillet.
In the opinion of the witness, C. C. Howerton, the negroes were worth $3,000. The claimant had refused an offer from witness of $2,900, and asked him (Howerton) $3,000.
Stockdale, Woodward & Proctor, for the appellant. The rule laid down on the former appeal in this case, that possession must, in a conveyance of chattels, follow and accompany the deed, otherwise the conveyance is prima facie fraudulent as to creditors, is believed to be inflexible. The fact of the vendor remaining in possession, without any other proof, creates at once the presumption of fraud; and the deed is void as to creditors. It is not a badge or sign of fraud, but standing alone and unexplained, even if the deed import an adequate valuable consideration, the law pronounces the transaction fraudulent.
The only distinction between the rule enunciated in the case of Bryant v. Kelton and Uzzell, 1 Tex. 415, and the other cases decided by this court, and the rule in the case of Hamilton v. Russell, 1 Cranch, 310, in the supreme court of the United States, and in the case of Waller v. Cralle, 8 B. Mon. 11, and other cases in the federal and state courts, is as to the conclusive effect of the legal presumption. In all of the cases, the presumption is the same; it is fraud. This court holds it, however, to be a presumption which may be rebutted aliunde; while on the other hand, it is held to be a legal conclusion so absolute, that no testimony will be heard dehors the deed, to affect it.
If there is an absolute sale, the possession must change. If the possession does not change, it must be in case of a conditional sale, a trust, or mortgage, where the possession is explained on the face of the deed.
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...the burden is on the beneficiary to show the transaction is absolutely fair, adequate and equitable. (Street v. Goss, 62 Mo. 226; Gibson v. Hill, 23 Tex. 77; Ray Lawrence, 38 Ky. (7 Dana) 78; Schwartz v. Gerhardt, 44 Ore. 425, 75 P. 700.) When a benefit is obtained without consideration fro......
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