King v. Russell

• Decision Date: 01 January 1874
• Citation: 40 Tex. 124
• Court: Texas Supreme Court
• Parties: JOHN C. KING v. ROBERT E. RUSSELL.

40 Tex. 124

JOHN C. KING

v.ROBERT E. RUSSELL.

Supreme Court of Texas.

1874.

1. It is not improper for the district judge to correct the statement of facts before his approval, when satisfied that any of the evidence has been omitted.

2. The testimony of a notary touching the acknowledgment of a deed before him, to which he had omitted to affix his notarial seal, is competent to prove the execution of the deed, but not to affect the validity of its record as notice from such record to other parties.

3. A sheriff may be called to prove that a recital in his return was made by mistake or inadvertence, but not to vary the return, in absence of fraud or mistake.

4. Either party can use depositions when the interrogatories have been crossed; and it seems that the declarations of a party can be introduced by himself when brought out by the other party in answer to his own interrogatories, and the party bringing them out declines reading them.

5. When a party in failing circumstances conveys property to his son, such conveyance is not fraudulent, nor does it require explanation.

6. The circumstances which the law considers as badges of fraud only, and not fraud per se, should be submitted to the jury, so that they may draw their own conclusion as to the character of the transaction.

7. It is only after a fraudulent purpose is shown that the burden of proof is changed, and the purchaser is required to prove that he paid value for his purchase.

8. Until such fraudulent purpose is shown, it is error in the court to instruct the jury that a conveyance by a father in failing circumstances to a son is a badge of fraud.

APPEAL from Orange. Tried below before the Hon. Wm. Chambers.

In 1868, Thomas King owned lots Nos. 4, 5, 6, 8 and 9, in block No. 6, in the town of Orange, and on August 15, he sold and conveyed them to his son, John C. King, the appellant--the deed reciting a consideration of $1,000. Upon such sale, the tenant in possession acknowledged John C. King as landlord, who received the rents and profits.

On October 6, 1868, one Gilmer recovered judgment against Thomas King, the citation in the suit having been served on him July 26, 1868. Execution issued October 12, and was returned “not satisfied, because I (the sheriff) can find no property.”

January 1, 1869, alias execution issued, and a levy was made on the said lots, “the same being pointed out by the plaintiff in this execution as the property of Thomas King,” as recited in the return of the sheriff. Under this levy, the lots were sold by the sheriff on February 2, 1869, Robert B. Russell being the purchaser at $100. On February 11, 1869, R. B. Russell sold the lots to Robert E. Russell, the appellee--the deed reciting $250 as consideration.

In December, 1869, Robert E. Russell obtained possession of the lots under proceedings in a justice's court.

On April 22, 1872, John C. King, the appellant, brought this action of trespass to try title against Robert E. Russell, the appellee, for the lots.

Russell in answer charged, that the sale by Thomas King to John C. King was fraudulent; that the plaintiff had full knowledge of and participated in the fraud; that the lots were at the time of the levy and sale by the sheriff, in fact, the property of Thomas King, and as such was liable to sale under the execution under which the defendant claimed.

The plaintiff below read the depositions of Hartzell, proving that he wrote the deed from Thomas King to John C. King, in Navarro county, on August 15, 1868; that on that day Thomas King signed and acknowledged the deed before witness, who at the time was a notary public. (The certificate of the notary to the acknowledgment had no seal affixed.)

Jesse S. Holmes, for plaintiff, by depositions testified, that he was sheriff, and made the sale; the levy was pointed out by R. B. Russell, who had control of the judgment against Thomas King; Gilmer, plaintiff in execution, bid off the property at $100, as agent for R. B. Russell, to whom the deed was made; witness received the money for costs; the remainder of the bid was credited on the judgment.

The depositions of R. D. Wood, taken by the defendant, Russell, but which had been crossed by King, were read over objection; he testified, in answer to third interrogatory by defendant, that he had leased the premises of Dr. Anderson, agent for one of the Kings; soon after, witness was informed that the property had been sold to John C. King, and “I supposed I was, and acknowledged myself to be, his tenant; * * * was dispossessed by Russell. John C. King told me that he had bought the place of his father for a valuable consideration; that it was an absolute and bona fide sale, and he had paid part and owed the balance by note. He said that he had bought it on account of his par ents being broken down, and in order to help them along as much as possible.”

The defendant, after proving the judgment, and purchase, and sheriff's deed, and deed to defendant, proved in substance, by Hugh Ochiltree, that he did not know whether Thomas King was solvent or not; owed witness $100, which witness would like very much to have; knew of the debt upon which the judgment in favor of Gilmer was rendered, it was about $150; did not know of any other debts; before and during the war Thomas King owned several slaves and tracts of land, and these lots; saw the deed on record; heard of it about the time of the Gilmer judgment; the deed from Thomas King to his son was much talked of in the community about the time of the sheriff's sale; witness spoke of the deed to a number of persons; remembers talking to R. B. Russell about it before the sheriff's sale at which he purchased; that witness understood R. B. Russell to have been interested in the Gilmer judgment; witness knew of no property of Thomas King subject to execution.

(After the statement of facts had been signed by the attorneys of the parties, the witness Ochiltree corrected his testimony, and stated that he did not know whether it was before or after the sheriff's sale he had spoken to R. B. Russell about the deed from Thomas King to his son, John C. King.)

Gilmer, the judgment creditor, proved that he had pointed out the lots to Holmes, the sheriff, and had the lots sold; Russell paid witness the purchase money, and witness bid off the lots at Russell's request.

R. B. Russell proved that he owned no interest in the Gilmer judgment; that he had not pointed out the property to sheriff Holmes, nor caused him to make the levy on the land; that he was absent from the county at the time of the levy and sale; had never heard of John C. King's claim until after the sheriff's sale; that R. E. Russell had paid witness for the land.

Julia Ann, a colored woman, testified to some conversations of Thomas King about his lots after the sale to John C. King; that the Kings lived together at the time of the sale, and until separated by family disturbances.

The statement of facts was signed by the attorneys for both parties, but subsequently Russell's attorney withdrew his approval, and to this exceptions were taken--the judge permitting the correction of testimony of the witness Ochiltree, as above stated.

Russell also excepted to the admission of Hartzell's testimony touching the acknowledgment of the deed from Thomas King to John C. King, the notarial seal not having been affixed to the certificate of acknowledgment.

Russell saved exceptions to the answer of Wood to the third interrogatory as hearsay. The substance of the answer is given above, and the witness referred to this answer in answer to other interrogatories.

The instructions complained of are set out in the opinion.

Judgment was rendered for the defendant, Russell, and King appealed.

Hancock, West & North, for appellant, insisted upon, as legal propositions governing this branch of the law:

1. The law never presumes fraud; and when a deed is attempted to be set aside for fraud, the burden of proof rests upon the creditor and those holding under him. Bump, Fraudulent Conveyances, and cases cited, p. 559.

2. The recital of a consideration in a conveyance is prima facie evidence of the face. Id. 554, and cases cited.

3. The mere fact that a conveyance is to a son, or other relation, is not alone sufficient to shift the burden of proof from the creditor to the claimant, and especially so when the conveyance recites a valuable consideration. Id. 419, and cases cited; see also Shearon v. Henderson, 38 Tex. 245; and Thornton v. Tandy, 39 Tex. 544.

4. In order to invalidate a transfer for a valuable consideration, the fraudulent intent of the grantor, and notice of and participation in it by the grantee, must be shown. Bump, Fraudulent...