Mosely v. Gainer

• Decision Date: 01 January 1853
• Citation: 10 Tex. 393
• Parties: M. MOSELY v. GAINER.
• Court: Texas Supreme Court

10 Tex. 393

M. MOSELY

v.GAINER.

Supreme Court of Texas.

1853.

Where there is a writ of error without a supersedeas, a sale in the meantime under execution is valid, although the judgment be reversed; but if a sale has not been effected when the reversal takes place the lien of the execution expires. (Note 75.)

A purchase of property with knowledge that the vendor is selling to delay, hinder, or defraud creditors, is void, notwithstanding that value be paid by the purchaser. (Note 76.)

A debtor has a right to prefer one creditor before another, but if the preference is made by the transfer of property, and another creditor contests its validity, and alleges that the transfer was made to hinder and delay creditors, the preferred creditor must disprove the charge of fraud by evidence of the existence in fact of the prior indebtedness to him; proof of the note, mortgage, or, &c., is not sufficient.

Where there was a trial of the right of property which resulted in favor of the creditor, but in the meantime his judgment was reversed, whereupon, having obtained another judgment, he levied upon the same property, the first execution having remained, with the property, all the while in the hands of the sheriff, but the claimant, who in the first instance claimed by mortgage, now claimed by bill of sale made after the reversal of the first judgment, and before the issuance of the execution upon the last, and the court charged the jury that the lien of the first execution continued until the last was placed in the hands of the sheriff, and that they should therefore find for the plaintiff, (the execution creditor:) Held, that the instruction was erroneous. But the judgment was affirmed on the ground that it had also been submitted to the jury whether the sale to the claimant had not been collusive to hinder and delay creditors, and that the statement of facts warranted the verdict on the issue of fraud.

Appeal from Upshur.

S. F. Moseley, for appellee.

HEMPHILL, CH. J.

This was a trial of the right of property. The appellee, Gainer, had an execution against Littleberry Camp, issued on the 18th June, 1852, which was levied on two negroes, Ambrose and Charlotte, as his property, on the 18th August, 1852. This claim was interposed by the appellant, Mosely, on the 23d of the same month. It appeared by the pleadings and the evidence that these negroes had been previously levied on in the year 1851 by a former execution in the same case between Gainer and Camp; that the appellant, Mosely, had also, on that levy, interposed his claim; that the issue then made had been tried and determined in favor of the appellee Gainer, and that the property was subject to his execution. But in the meantime, and before further proceedings were had on that execution, the judgment on which the execution issued had been revised and reversed by the Supreme Court. The facts in relation to said appeal and reversal are deducible inferentially and not from direct proof in the record. In the interval between the reversal of the judgment and the levy of the execution which was issued on the judgment as pronounced in the Supreme Court, the appellant, Mosely, having previously had a mortgage on said slaves, procured from Camp an absolute bill of sale. The appellee, Gainer, in the issue made up on this second trial of right in the property, alleged the facts in relation to the former trial, and insisted that, by virtue of his previous execution and levy, he had, at the time of the sale to Mosely, a subsisting lien on said property; that the purchase by Mosely was a fraud upon his, Gainer's, rights, both legal and equitable, and was made through collusion between the said Mosely and Camp for the purpose of injuring plaintiff and embarrassing and delaying him in his just and legal remedies secured to him by law.

The defendant, Mosely, denied the allegations of the plaintiff, averred that he was, by mortgage, the owner of the slaves before the issue of the original execution, and that at the issuance of the last he had full title by a bona fide purchase, on a good and valuable consideration, &c.

At the trial the mortgage, bill of sale, and proceedings on the former trial were in evidence. The sheriff testified that the negroes were in his possession, he permitting Camp to take them to his farm, under guarantees, at the time the execution of June 18th, 1852, was placed in his hands and levied on said negroes; that Mosely knew of the judgment, and must have known of the last, as he did of the previous executions; that the previous execution, under which the property was to have been sold, was returned to the attorney of the plaintiff on the day that the property was to be sold; and that the latter execution was placed in his hands as sheriff and levied on the same day.

The court charged--

1st. That, if the negroes now claimed were the same that were claimed on the former trial, and if they came into the possession of the sheriff by a legal execution and levy, the possession was vested in the sheriff, and though the original judgment was revised and corrected by the Supreme Court, and execution issued thereon and placed in the...