Traylor v. Townsend

• Decision Date: 15 February 1884
• Docket Number: Case No. 1797.
• Citation: 61 Tex. 144
• Parties: CHARLES TRAYLOR v. J. L. TOWNSEND.
• Court: Texas Supreme Court

61 Tex. 144

CHARLES TRAYLOR

v.J. L. TOWNSEND.

Case No. 1797.

Supreme Court of Texas.

Feb. 15, 1884.

APPEAL from Colorado. Tried below before the Hon. Everett Lewis.

Action for damages against J. L. Townsend, J. E. Wallis and Henry Landes, of Galveston county, for the alleged wrongful entry of appellees into appellant's store-houses and warerooms, and forcibly taking therefrom goods, the property of appellant, of the value of $1,685.85; for alleged wrongs and trespasses done and committed by appellees in forcibly taking possession of and carrying away said goods without appellant's consent, whereby they were mixed and injured, and appellant's standing as a merchant damaged. He alleged that appellees combined together and acted with each other with a common purpose and design to take his goods and injure him, and prayed for judgment for the sum of $1,685.85, and the further sum of $1,500 for his damages, etc.

General demurrer and special exception to appellant's claim of $1,500 damages; and appellees J. E. Wallis and Henry Landes interposed a general denial. Appellees further replied, alleging that appellant combined and confederated with one R. E. Farmer to defraud the creditors of R. E. Farmer & Co. That the goods charged to have been taken from appellant were the property of R. E. Farmer & Co., and subject to the debts of that firm, and that appellees Wallis & Landes were creditors of that firm, and the property was taken by virtue of a writ of attachment.

Townsend answered by general demurrer and general denial. Appellant replied to the amended original answer by general demurrer and general denial. There was a verdict in these words: “We, the jury, do agree and decide that the Galveston firm of Wallis, Landes & Co. shall be entitled to the goods and wares seized and sold under their attachment, and that Mr. C. Traylor shall pay the cost of this suit. H. B. Gray, foreman;” upon which verdict, judgment was entered that appellant Charles Traylor take nothing by his suit, and against appellant for costs of suit.

It is not believed that a condensed statement of the evidence relied on to establish the fraud is necessary.

McCormick, Logue & McKennon, for appellant, cited: Shaw v. State, 27 Tex., 750; R. S., art. 2465; Turner v. Lambeth, 2 Tex., 365;Giddings v. Steele, 28 Tex., 732;Paxton v. Boyce, 1 Tex., 317;Tompkins & Co. v. Bennett, 3 Tex., 37. (Note difference between statute of frauds since adoption of Revised Statutes and before.) See R. S., title XLVI.; Pasch. Dig., art. 3876; Bryant v. Kelton, 1 Tex., 415;Howerton v. Holt, 23 Tex., 51.

Foard & Thompson, for appellees, cited: Edrington v. Rogers, 15 Tex., 188;Mosely v. Gainer, 10 Tex., 393;Mills v. Howeth, 19 Tex., 259;Humphries v. Freeman, 22 Tex., 50;Bacon v. O'Connor, 25 Tex., 225;Wright v. Linn, 16 Tex., 43;City of Chicago v. Wett, 75 Ill., 211;Russell v. Rowlan, 76 Ill., 167; Bump on Fraudulent Conveyances, 198, 232.

WILLIE, CHIEF JUSTICE.

The assignments of error found in the record relate to the charges given by the court, the verdict of the jury and the refusal to grant a new trial on the ground of newly discovered evidence. It is not complained that the evidence was not sufficient to warrant the judgment under a legal verdict and proper instructions to the jury.

It is objected to the charge that it instructed the jury that mere badges of fraud were fraud per se, and contradicted the special instructions given upon request of the appellees.

After a thorough examination of all the charges given by the court we do not find them subject to these objections. That portion of the charge cited by appellant under the assignment of error we are considering is certainly not objectionable, but a true statement of the law, as frequently decided by this court. He charged that fraud, like any other fact, might be proved by circumstantial evidence. This has been frequently held by this court and requires no further argument to demonstrate its correctness. Walcott v. Brander, 10 Tex., 419;Thompson v. Shannon, 9 Tex., 536;Briscoe v. Bronaugh, 1 Tex., 335;Graham v. Roder, 5 Tex., 149.

The court also charged (taking all the instructions in connection) that the sale made by Farmer & Co. to Traylor was void if made with intent on the part of the seller to hinder, delay or defraud creditors, if the intent be known to the purchaser, or could have been known by the use of ordinary diligence, although the sale was made for a good and valuable consideration. A general principle so well settled as this hardly needs authority to support it.

But it seems to be claimed by counsel for appellant that under the Revised Statutes it is not sufficient that the vendor's fraudulent intent could have been known to the purchaser by the use of ordinary diligence, but that he must positively know that fact. It is true that the Revised Statutes provide that the title of a purchaser for a valuable consideration shall not be affected unless it appear that he had notice of the fraudulent intent of his grantor (art. 2465); but they do not say what shall be the character of the notice, whether actual or constructive, or what shall be deemed sufficient proof to establish it.

It was intended to give the term “notice” its usual signification, which is knowledge of all that is communicated to the purchaser, or that a proper use of that information would enable him to ascertain. Le Neve v. Le Neve, 2 Smith, L. C., 154; Hines v. Perry, 25 Tex., 444.

Under the law as it existed before the Revised Statutes were adopted, it was held that a knowledge of the fraud on the part of the vendee must be proved in order to avoid the conveyance. Mills v. Walker, Dallam, 416; Humphries v. Freeman, 22 Tex., 45;Weisiger v. Chisholm, 28 Tex., 780;Wright v. Linn, 16 Tex., 34.

Yet it was held to be the duty of the court to charge the jury in a proper case that actual knowledge need not be proved if the purchaser had the means of knowing the fraud by the use of ordinary diligence. Humphries v. Freeman, supra. See, also, Mills v. Howeth, 19 Tex., 257.

As to the contradiction said to exist between the main charge and those given at the request of the defendants below, we are unable to discover them in the statement made by the appellant or in the record itself.

It has been held that it was not error in a district judge to refuse a charge asked which contained a mere repetition of a principle of law already given in charge to the jury under a different form of expression. Powell v. Messer, 18 Tex., 401.

It was also said, in the same connection, that it ought not to be done where such repetition would give undue prominence to the principle as to which the repetition is requested. The complaint in that case was that the charge was not repeated at...