Mills v. Howeth

• Decision Date: 01 January 1857
• Citation: 19 Tex. 257
• Parties: ROBERT MILLS AND ANOTHER v. FLETCHER C. HOWETH.
• Court: Texas Supreme Court

19 Tex. 257

ROBERT MILLS AND ANOTHER

v.FLETCHER C. HOWETH.

Supreme Court of Texas.

1857.

In a trial of the right of property levied upon by execution from another county, a certified copy of the record of the suit is the best evidence of the particular indebtedness which the plaintiff is seeking to enforce.

On the trial of an issue whether a sale of property by a defendant in execution was made to hinder and delay or defraud creditors, it is error to reject the testimony of a witness offered to prove the indebtedness of the defendant in execution at the time of the sale, if it do not appear that it was proposed to prove indebtedness evidenced by writing.

It is not enough that a transfer of property by an insolvent debtor may have been for a valuable consideration; it must have been bona fide also, and not made with the intent to hinder and delay or defraud creditors. [10 Tex. 393;15 Tex. 188;28 Tex. 759, 792.]

Nor is it necessary to prove an actual participation in the fraud on the part of the vendee. If he knew of the fraudulent intent of his vendor, or had knowledge of facts sufficient to excite the suspicions of a prudent man, and put him upon inquiry, it is sufficient.

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

Execution from Galveston county on a judgment in favor of Robert Mills and John W. Jockusch against John P. Walton and George W. Tuggle, levied upon a storehouse and stock of goods, and the stock of goods claimed by the appellee as his property. The judgment was rendered on the 29th of December, 1854; the execution was levied May 2, 1855.

It appeared by bill of exceptions that the plaintiffs called Sam. Mills as a witness, and asked him if he knew what the judgment filed in this cause was rendered upon. To this the claimant objected, and the objection was sustained. Plaintiffs then offered in evidence a certified copy of a note signed J. P. Walton & Co., dated August 10, 1854, due one day after date, payable to R. & D. G. Mills, for $9,943.72, certified by the clerk of the district court of Galveston county to be “a true copy of the note filed in said court on the 29th day of December, 1854, in the case of R. & D. G. Mills v. J. P. Walton and George W. Tuggle.” To this evidence the claimant objected, cause not stated, and the objection was sustained. The plaintiffs then asked the witness Sam. Mills if he knew of any indebtedness of Walton & Tuggle to the plaintiffs prior to the 10th of June, A. D. 1854. The claimant objected; cause not stated, and the objection was sustained.

The copy of the judgment referred to as on file, and which was given in evidence, was merely a copy of the entry of judgment. The fact was, but it did not appear in the evidence, that the plaintiffs composed the firm of R. & D. G. Mills, and Walton & Tuggle composed the firm of J. P. Walton & Co.

The issue was as to whether the sale from J. P. Walton & Co. to F. C. Howeth & Co., made about the 10th of June, 1854, was in good faith, or to hinder and delay or defraud the creditors of the former.

Verdict and judgment for the claimant.

E. H. Horrell, for appellants.

J. E. Cravens and R. A....