Mcquinnay v. Hitchcock

• Decision Date: 01 January 1852
• Citation: 8 Tex. 33
• Parties: MCQUINNAY v. HITCHCOCK.
• Court: Texas Supreme Court

8 Tex. 33

MCQUINNAY

v.HITCHCOCK.

Supreme Court of Texas.

1852.

The defendant in execution is a competent witness for the claimant in a suit to try the right to property levied on to prove that a previous sale by him to the plaintiff was bona fide. (Note 5.)

The preference given by a debtor to one or more of his creditors is not of itself unlawful, and will not vitiate his assignment or deed in their favor. (Note 6.)

The fact of remaining in possession by the vendor of personal property is not fraud per se, or a presumption, juris dejure, of fraud; it raises the presumption of fraud but may be explained. (Note 7.)

Error from Galveston. This was a trial of the right to property levied on in the possession of the defendant in execution, Marston, and claimed by Hitchcock and Shaw. McQuinnay, the plaintiff in error, was the plaintiff in the judgment. A jury was waived. The claimants produced a bill of sale of the property dated August 3d, 1849, and recorded the next day. They proved by Marston that the sale was bona fide in consideration of a debt due to the claimants, and that the property, principally cattle, was left in his possession as agent of Shaw, he paying Shaw one dollar per month for each milch cow. McQuinnay excepted to the competency of Marston. The execution was issued on the 14th of August, 1849. There was judgment for the claimants.

J. B. Jones, for plaintiff in error.

The whole statement of facts shows beyond controversy that the conveyances were made to protect the property for the defendant in execution. The particularities of the deed; that they resorted to a deed at all to convey cows; the old account trumped up for the occasion; the date of the deed; the time of its acknowledgement; the fact that they thought it necessary to receive it, all show conclusively that something wrong was intended. The court is referred to the notes to Twyne's case, 1 Smith, L. C., for the whole doctrine on the subject.F. H. Merriman, for defendant in error.

I. Marston was a competent witness. (Prince v. Shepard, 9 Pick. R., 176; Rice v. Austin, 17 Mass. R., 197; Jordaine v. Lashbrook, 7 T. R., 601; Starkweather, v. Mathews, 2 Hill's R., 131; Spencer v. Mitchell, 9 Ala. R., 744.)

II. The possession of the vendor after sale may be explained. (Bryant v. Kelton, 1 Tex. R., 415; Vickery v. Ward, 2 Id., 212; Morgan v. Republic, Id., 279.)

HEMPHILL, CH. J.

The questions presented in argument are as to the competency of Marston as a witness offered in behalf of the claimants and as to fraud in the transfer as against plaintiff in error.

That the objection to the competency cannot be sustained is evident from the fact that the interest of the witness is balanced between the parties. If the claimants recover, the property will remain subject to the satisfaction of their demands, but the debt due the plaintiff in execution will continue undischarged. If the latter prevail his execution will be satisfied and the witness will be responsible to the claimants for the value of the cattle. Let the controversy be decided as it may, he will remain the debtor of the losing party; and in contemplation of law it is indifferent to him which of his creditors shall have his property. If he have a preference of one to the other this goes to his credibility and not to his competency. He is not directly liable for the costs of this suit; nor is he responsible to either of his creditors beyond the value of the cattle; and to this extent he must indemnify the party who is defeated. This view of the question is well expressed in 17 Mass. R., 197; 9 Pick. R., 176; Vid. 7 T. R., 601; 2 Hill's R., 131; 9 Ala., 744; Cowen and Hill's notes to Phillips, p. 1543.

There was no error in the refusal to exclude the testimony of the witness.

It is contended that on all the circumstances of the case the deeds of the witness to Hitchcock and Shaw should have been adjudged fraudulent and void as against the executive creditor. The arguments on this point have been brief, and I shall not attempt in this case any elaborate disquisition of the rules as laid down in Twyne's or succeeding cases as to what circumstances shall constitute signs, or marks, or presumptions of fraud. Marston was the only witness; and if his testimony is to be believed, and the court below was the judge of his credibility, there is no doubt that he justly owed the debts for the satisfaction of which he executed the conveyances under which the claims are set up by the defendants in error. The joint debts were considerable in amount, and there was no evidence as to the value of the property conveyed or the adequacy of the consideration. The conveyances were open and notorious and prior in time to the levy of the execution.

The preference...