Mercein v. Burton

• Decision Date: 01 January 1856
• Citation: 17 Tex. 206
• Parties: DANIEL S. MERCEIN and others v. DAVID L. BURTON.
• Court: Texas Supreme Court

17 Tex. 206

DANIEL S. MERCEIN and others

v.DAVID L. BURTON.

Supreme Court of Texas.

1856.

The legal proposition that a vendee, under a conveyance fraudulent against creditors, in the actual adverse possession of personal property for more than two years from the date of the judgment of the creditor, can claim the protection of limitation, is sound both on principle and authority.

An execution is not a lien on personal property from the date of its issuance, under the act of 1842, now in force

Appeal from Houston. Tried below before the Hon. John H. Reagan.

S. A. Miller, for appellants.

Yoakum & Taylor, for appellee.

HEMPHILL, CH. J.

The appellants had two separate executions against John J. Burton, each of which was levied upon a separate negro boy. Both of the boys were claimed by the appellee, David L. Burton, and he asserted his claim in the mode provided by the statute. The judgments, upon which the executions issued, were recovered in 1849. In the same year the said John J. Burton, by deed duly executed, conveyed a large amount of property, including these slaves, to his sons, Samuel A. and David L. Burton. The deed was recorded shortly after its execution. Samuel A. departed this life in 1850, and his father, the said John J., having administered on his estate, sold, under the order of the county court, the undivided interest of the said Samuel A. in the property included in the conveyance. David L., the appellee, became the purchaser, thus acquiring the whole title. The levy was not made until 1854. The appellee claimed under the deed, and the appellants averred and insisted that the deed was fraudulent and made to hinder and delay creditors. Evidence was introduced by the parties respectively to sustain and rebut the charge of fraud, and the court in a full and lucid charge instructed the jury upon the law as applicable to the facts on that point. But it will not be necessary to refer either to the facts--their preponderance one way or the other--or the law arising upon them, as touching the question of the fraud in the transaction between John J. Burton and sons. For if it be admitted to be true, as charged by the plaintiffs, that the deed was conceived and consummated in fraud of the rights of creditors, yet the statute of limitations has, it is believed, interposed an effectual bar to the assertion of their rights. And in this connection the question of possession or with whom remained the possession of the property, becomes as important as it was in relation to the main point, viz.: whether there was fraud designed against the creditors. The main facts in relation to the possession, control and ownership of the property are, that the father and sons continued to live together after the conveyance for at least the greater portion of the time; that after the death of Samuel A. his father, the said John J., administered on his estate, including in the inventory the property embraced in the conveyance, and selling the same under the sanction of the county court. The appellee, David L., had, as owner, mortgaged or pledged some of the negroes two or three times, and afterwards redeemed them. That the appellee, David L., had the management and control of the farm and negroes since the death of S. A., and that he and S. A. had such management and control from the time of the purchase up to S. A.'s death.

There was evidence, however, that the father sometimes gave orders to the negroes, and that when they all lived together all gave orders about the property, etc. On the question as to the effect of the statute of limitations on the rights of the parties, the jury were in effect instructed that the sale being from father to sons who resided with him, it might be difficult to determine whether the possession of the property was changed from one to the other, and they would be under the greater necessity of looking to all the features and facts of the case, to ascertain whether the possession and control were in the father or sons. This was charged with especial reference to the question of fraud, but it is applicable to the instruction in respect of the limitation. The jury was charged especially on this point, that if the possession and apparent ownership remained in Samuel A. and David L. Burton, or either of them, since the purchase, and more than two years have elapsed between the date of the judgments of appellants and the levy of the executions, they should find...