Howerton v. Holt

• Decision Date: 01 January 1859
• Citation: 23 Tex. 51
• Parties: JAMES HOWERTON v. J. J. HOLT.
• Court: Texas Supreme Court

23 Tex. 51

JAMES HOWERTON

v.J. J. HOLT.

Supreme Court of Texas.

1859.

An assignment to secure a particular creditor, whereby it is stipulated, that the assignee shall dispose of the property assigned, and after discharging his debt, return the surplus, if any, to the assignor, may be regarded as a trust in the nature of a mortgage, with some of the qualities of an assignment. The absence of proof that the assignor was pressed, except for a single debt, or that he was insolvent, or in failing circumstances, or that the property assigned was the whole, or even the larger part, of his estate, are matters to be noticed in determining the character of the instrument.

Such assignee does not acquire the entire legal and equitable interest in the property conveyed, subject to the trust, but a specific lien upon it; and whether the surplus results to the assignee by express provision in the deed, or by implication, is immaterial. The residuary interest of the assignor may, according to its nature, or that of the property, be reached by an execution, or a bill in equity.

Where A. made an assignment to B., an attorney, to secure the payment of a note which had been transferred to him for collection: Held, that the jury were correctly instructed; that if the motive that induced A. to make the assignment, was to hinder and delay his creditors, the deed would be void as to creditors, although A. may have acted in good faith, and without fraud on his part. Post, 82; 1 Tex. 428;15 Tex. 188;22 Tex. 50;24 Tex. 518;28 Tex. 759, 780.

As the evidence justified the charge, the court should, when requested, have instructed the jury, that if they believed from the evidence, the goods assigned were never delivered to the plaintiff (the assignee), they must find for the defendant. (By the assignment, the goods purport to have been delivered at the time of its execution.)

Possession by the assignor, where the deed is absolute, is generally held to be prima facie evidence of fraud, which, if not explained, makes the deed void as to creditors. And the use of property, not consistent with the objects of the deed, increases the force of the presumption. Post, 77; 14 Tex. 583;28 Tex. 73.

An assignment of a much larger amount of property than is necessary to pay the debt, as also the fact of there being, at the time of the assignment, a judgment creditor, are badges of fraud, and are admissible in evidence, as tending, in connection with other facts, to establish it.

The court may properly decline to instruct the jury, that particular facts are badges of fraud, without reference to their being subject to explanation, if there were circumstances tending, in some degree, to rebut the presumption arising from them. Such charge might mislead the jury, unless sufficiently explained in the same connection.

The court is not permitted to charge upon the weight of evidence; it may explain to the jury the reasons upon which it is admitted, and that particular facts tend to raise, or repel certain presumptions, but the force of their tendency to do so, must be left to be weighed by the jury.

Courts cannot be expected, in all cases, to explain, in detail, to the jury, the purpose for which every piece of testimony has been admitted; but in cases of fraud, where the main issue is, usually, the intent with which the deed is made, something more than giving in substance a copy of the statute of frauds, will often be necessary, to enable a jury to determine a case in accordance with the principles which have governed chancellors, in adjudicating the facts connected with assignments.

Where circumstances are proved, tending strongly to show that an assignment is fraudulent, and they are not explained, a verdict sustaining the assignment should be set aside by the court.

In a suit for damages by the assignee, against a sheriff who had sold the goods assigned, by virtue of an execution against the assignor, it appearing that the money realized from the sale, had been applied by the sheriff in satisfaction of the execution: Held, that the assignor was not a competent witness for the assignee. Such case is not analogous to that of the trial of the right of property between a plaintiff in execution and the vendee of the property, claiming by warranty title from the defendant in the execution.

APPEAL from Calhoun. Tried below before the Hon. Fielding Jones.

This was a suit by the appellee against the appellant for damages sustained by reason of the sale of a negro woman and child, alleged to be his property, which were levied upon and sold by the appellant, a sheriff, in virtue of an execution in favor of Burnside & Co., against John Hudnall, on a judgment recovered by them in the district court of Calhoun county, on the 26th of September, 1855.

On the 28th of September, 1855, Hudnall made an assignment to the appellee, including in the deed his entire stock of merchandise, variously estimated by the witnesses at from $7,000 to $15,000, together with all his book accounts, notes, etc., inventoried at $8,750. There was no schedule of the stock of goods, attached to the assignment, but reference was made to the books, for a description of the various articles composing the stock on hand. The alleged object of the assignment was to secure the payment of Hudnall's indebtedness to Henry Sheldon, amounting at that time to about $7,600, principal and interest, upon a promissory note, which had been transferred by Sheldon to the appellee for collection. By the deed, the appellee was authorized to take possession of the property, make sales and collections, and apply the proceeds to the payment of Sheldon's debt; after the discharge of which, and of the expenses of executing the trust, the surplus of the property was to be returned to the assignor.

Upon the trial, the appellee introduced as a witness the assignor (Hudnall), whose testimony was objected to by the appellant, upon the ground of interest, and because he was a participant in the alleged fraud; these objections were overruled by the court, and the witness was permitted to testify in the cause; to which appellant excepted.

Hudnall then testified that he was appointed by the appellee, his attorney in fact, to retain and sell the goods, and to collect and settle the debts included in the assignment; he also produced a mutilated instrument (the signature of the appellee, and, apparently, a part of the instrument also, being torn off), which, he said, was the power of attorney that had been executed to him by the appellee, who was an attorney, and was forced to leave home to attend the courts a day or two after the execution of the assignment. Among the debts assigned was one against Bateman for $982. 23, in payment of which, after the appellee had left home, the witness said, he took from Bateman a negro man; and afterwards traded the man for the woman and child levied upon and sold by the appellant; these negroes remained in the witness' possession, but the bills of sale were taken to the appellee. At the time the levy was made (which was before the appellee's return home from the circuit), the witness informed the appellant, that the negroes belonged to the appellee. After his return home, the appellee also gave the appellant notice, that the negroes belonged to him, and if they were sold, that he would hold him (the appellant) liable for their value. The witness Hudnall, also testified that he received a letter from ______, residing in Lockhart, requesting him to purchase these negroes for the writer; that he placed this letter in the hands of Parrish, who bid the negroes off on the day of sale; and that he gave Parrish the money (it having been put in his hands by said _______ for the purpose of purchasing the negroes) bid by him; that Parrish paid it to the sheriff (the appellant); and that he, witness, received the negroes, and sent them to Lockhart, to the person for whom they were purchased.

C. C. Howerton, a witness for the appellant, testified that he, as deputy sheriff, levied the execution of Burnside & Co. on the negro woman and child, who, at the time of the levy, were in the possession of Hudnall, the defendant in the execution; that they were purchased by Parrish, and taken away by Hudnall. That subsequently to the levy, and before the sale, Hudnall said he must try and make some arrangement to relieve the negroes. That witness was selling at sheriff's sale, under attachment, a lot of goods in Lavaca, and during the continuance of this sale, Hudnall applied to him to sell a lot of tobacco and other things, the proceeds to be applied to the execution of Burnside & Co. Witness doubted whether he could sell without advertising, and feared that he would subject himself to the payment of auctioneer's license if he did. Hudnall insisted on the sale, and witness asked the appellee, whether he could sell property without first advertising it. The appellee advised him that he could; that the advertisement was for the benefit of the defendant in the execution, and that, if he waived it, it was all right; witness then sold the goods, and kept the money to be applied to the satisfaction of the Burnside execution. That on the sale of the negroes, Hudnall, failing to make arrangements to relieve them, insisted upon having the money from the first sale, it being informal, but witness refused, and after the sale of the negroes, satisfied the balance due on the execution out of the first sale. The tobacco, etc., was taken out of the warehouse of Hudnall. Witness knew the store occupied by Hudnall before and after the time of the levy; the goods and merchandise therein were being sold, as usual, under the management of Hudnall; his sign was over the door, and the store was in his possession.

The appellant also offered in evidence the record and papers of a suit in the district court of Calhoun county, by the appellee, for the use of Sheldon, against Hudnall, upon the note to secure the...