Thompson v. Another
| Decision Date | 01 January 1853 |
| Parties | THOMPSON, ADM'R, v. SHANNON AND ANOTHER. |
| Court | Texas Supreme Court |
A charge either given or refused must be taken in view of the evidence on the facts alleged. A charge might be perfectly harmless and inoperative in the abstract, but when referred to a certain set of facts in the proof might have a most important influence on the jury.
Where an administrator's sale was attacked on the ground of fraud between the administrator and purchaser, and one of the allegations was that no money was paid nor note given, and facts were proved tending to establish the allegations of the petition, it was held that the court improperly charged the jury that absence of proof of payment of the consideration by the purchaser did not raise the presumption of fraud.
The failure or refusal of a party to produce testimony which might reasonably be supposed to be within his power, to explain or rebut circumstances of suspicion, strengthens the presumption arising from those circumstances.
Fraud may be proved by circumstantial evidence.
Appeal from Montgomery. This suit was instituted to set aside a sale of land made by Cochran, the former administrator, at which sale Shannon became the purchaser and received the administrator's title. The ground upon which the sale was sought to be set aside was fraud and collusion between the administrator and the purchaser. There were other grounds alleged in the petition, but they were not sustained by the record.
The allegations of the petition were tried by a jury, and there was a verdict for the defendant; a motion to set aside the verdict, which was overruled by the court, and the plaintiff appealed. There was no evidence of any money being paid by the purchaser, nor that he had given a note and mortgage for the same; he received a deed bearing date the day of the sale, and on the next day conveyed two-thirds of the land conveyed to him by Cochran back to Cochran. The same witnesses appeared to both deeds, and those witnesses, before the the jury, swore that they distinctly recollected the execution of the deed from Shannon to Cochran, but neither of them had any recollection of witnessing the deed from Cochran to Shannon, though they both admitted the genuineness of their signatures as witnesses to that deed. The court was requested to charge the jury “that proof of the payment of the consideration by the purchaser would rebut the presumption of fraud; absence of such proof would raise that presumption.” The court gave the charge that proof of the payment of the consideration by the purchaser would rebut the presumption of fraud, but refused to give the other part, that absence of such proof raised that presumption, and said that it was not law.
Yoakum & Campbell, for appellant. The 4th charge asked, Is it not law? A consideration is the life of all contracts. If there was no consideration between Cochran and Shannon, would it not clearly raise a presumption of fraud?
A. Hemphill and L. L. Bradbury, for appellees. That the court below did not err in...
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...not often that any kind of evidence but circumstantial evidence can be procured.’ ” Castillo, 444 S.W.3d at 622 (quoting Thompson v. Shannon, 9 Tex. 536, 538 (1853) ). In such cases, circumstantial evidence of a “pattern” may be sufficient. See Id.The alternative to a traditional motion for......
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...distinguished from fraud found by a jury from matter of fact.” Law Dic. 518; Twyne's case, 3 Co. 87;Graham v. Roder, 5 Tex. 141;Thompson v. Shannon, 9 Tex. 536;Howerton v. Holt, 23 Tex. 60. In the present case, the duplicity of Neil was never discovered by his clients until judgment was ren......
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