Tillman v. Heller

• Citation: 14 S.W. 700
• Parties: TILLMAN v. HELLER.
• Decision Date: 21 November 1890
• Court: Texas Supreme Court

14 S.W. 700

TILLMAN v. HELLER.

Supreme Court of Texas.

November 21, 1890.

Appeal from district court, Johnson county; J. M. HALL, Judge.

Poindexter & Padelford, for appellant. Smith & Davis and W. H. Skelton, for appellee.

GAINES, J.

We are of the opinion that the motion for a rehearing in this case should be granted. We still concur in all the rulings of the former opinion, except as to the question whether or not the trial judge was correct in his conclusion that the appellee is to be deemed a bona fide purchaser for value. Under the facts of this case, the correctness of that conclusion depends upon the determination of two questions: First. It being determined that the sale to appellee was fraudulent, as to the creditors of the sellers, W. C. McDavid & Co., and that appellee had no notice of that intent, was it necessary that he should have paid or given his negotiable promissory notes for the consideration in order to protect him against a recovery? Second. If that proposition be answered in the affirmative, upon whom did the burden rest, to show whether or not the consideration was so paid or so promised?

The appellee testified that he gave two notes each for $550, and paid $400, before he had any notice of the sellers' intent to defraud their creditors. He did not testify whether the note was negotiable or not. The rule we think universal, that a grantee under a junior deed, in order to hold land as a bona fide purchaser for value, must show that the consideration has been actually paid, or that he has given a negotiable note therefor, which, in this court at least, is deemed equivalent to the same thing. We have had some difficulty in determining whether or not a different rule should not prevail as to one setting up the defense of an innocent purchaser, as against a creditor, seeking to set aside a fraudulent conveyance; but, after a careful examination of the authorities, we have found none that recognize the distinction. On the contrary, there are quite a number of cases in which it has been pointedly held that, in order for the purchaser to make the defense, it must appear that the consideration has actually passed. Dougherty v. Cooper, 77 Mo. 532; Arnholt v. Hartwig, 73 Mo. 485; Dixon v. Hill, 5 Mich. 404; Bush v. Collins, 35 Kan. 535, 11 Pac. Rep. 425. Such is the doctrine recognized by this court in Belt v. Raguet, 27 Tex. 471, and in King v. Russell, 40 Tex. 125, although neither case called for a decision of the point. We, therefore, conclude that the appellee can only be protected to the extent of the money actually paid at the time he received notice of the fraudulent intent of his vendors in making the sale, unless the notes given by him were negotiable by the law-merchant.

This brings us to the second question. Did appellee have the burden...