Gibson v. Hill

• Decision Date: 01 January 1858
• Parties: HENRY GIBSON v. S. W. HILL.
• Court: Texas Supreme Court

21 Tex. 225

HENRY GIBSON

v.S. W. HILL.

Supreme Court of Texas.

1858.

Where a vendor remains in possession of property after the sale, it raises a prima facie presumption that the sale was fraudulent; and such presumption, though not conclusive, changes the burden of proof, and requires explanation to remove it. 1 Tex. 415;28 Tex. 73.

And so to charge is not objectionable as being upon the weight of evidence.

Appeal from Calhoun. Tried below before Hon. F. Jones.

Henry Gibson recovered a judgment in the district court of Matagorda county against Claiborne Hill and Wm. Varnell on the 20th day of October, 1856, on which judgment execution was issued October 29th, 1856, and levied November 21st, 1856, on five negroes in the possession of Claiborne Hill, in Calhoun county.

S. W. Hill, son of Claiborne Hill, set up a claim to the negroes, making affidavit and giving bond, as required by the statute.

Date of affidavit and bond, November 25th, 1856.

The claimant relied upon a bill of sale of the negroes from Claiborne Hill to himself, dated October 17th, 1856, and filed for record on the same day.

The plaintiff in execution impeached the fairness of this sale, alleging the same to have been made to hinder, delay and defraud creditors, and especially the plaintiff in the collection of his judgment debt.

The consideration expressed in the bill of sale was $1,931.13, but an instrument executed at the same time by the vendee explains the actual consideration to be the assumption by S. W. Hill of the principal of a debt of some $1,218, of ten years' standing, due from Claiborne Hill to his father's estate in Alabama, also the assumption of another debt of $413.13, due from Claiborne Hill to Gillett, which debt was secured by a mortgage on one of the negroes, and the further sum of $300 in cash--making in all the amount expressed in the bill of sale, $1,931.13.

There was testimony introduced on the trial to show that the negroes were worth $2,500. It was proved that they continued in the possession of Claiborne Hill, after the alleged sale, and were in his possession when the levy was made, and no proof was offered in explanation of the possession so remaining with the vendor.

Verdict and judgment for the claimant, and appeal by the plaintiff in execution.

Sherwood & Goddard, with Stockdale, for appellant. The circumstances of this case raise a strong, if not a conclusive presumption of a fradulent collusion between Claiborne Hill, the father, and S. W. Hill, the son, to defeat the collection of the appellant's demand; and establish such an understanding and privity between the parties to the pretended sale as to have warranted the admission of Claiborne Hill's declarations previous to the sale, for the purpose of showing the nature and probable design of that transaction.

When it appeared in evidence that this sale was made but three days before the rendition of the judgment; that the consideration was much less than the fair value of the negroes, and consisted in great part of the assumption of a stale and contingent liability; that the possession of the negroes remained with the vendor, without explanation, from the time of the alleged sale until the date of the levy; and that the parties to this transaction were father and son-- certainly, a sufficient basis was laid for the introduction of Gillett's testimony as to Claiborne Hill's declarations of his intention to avoid the payment of this demand; and it was for the jury to find, from all the facts of the case, whether or not S. W. Hill was cognizant of his father's intention. The mere fact that the son was not present when the declarations were made, was not a sufficient ground for excluding the testimony from the jury, and the court erred in so ruling.

The bare fact that the negroes remained in the possession of the vendor after the pretended sale was prima facie evidence of a fraudulent...