Tuttle v. Turner, Wilson & Co.

• Court: Texas Supreme Court
• Writing for the Court: COKE
• Citation: Tuttle v. Turner, Wilson & Co., 28 Tex. 759 (Tex. 1866)
• Decision Date: 31 October 1866
• Parties: JAMES H. TUTTLE, ADM'R, v. TURNER, WILSON & CO.

28 Tex. 759

JAMES H. TUTTLE, ADM'R,

v.TURNER, WILSON & CO.

Supreme Court of Texas.

October, 1866.

The true test of the interest of a witness is that he will either gain or lose by the direct legal effect and operation of the judgment to be rendered in the cause wherein he testifies, or that the record of the judgment will be evidence for or against him in some other action.

When a witness testifies against his interest, the rule that interest disqualifies has no application.

Where a warrantor of a title to land is introduced (in an action which seeks to set aside his deed for fraud) as a witness to prove the invalidity of the title warranted by him, he is a competent witness, inasmuch as the effect of his testimony is to render him liable on his warranty, and he is therefore testifying against his interest.

Such warrantor is competent, notwithstanding that the invalidity in the title, as proved by him, consisted in collusive fraud between him and the grantee, in his deed, on account of which fraud no action on the warranty could be sustained by the grantee against the warrantor, because the record of the judgment in the cause wherein the warrantor testifies would not be admissible in a suit on the warranty, except as evidence of the facts of its rendition and of its necessary legal consequences, in which respects it would be against the interest of the witness. It would not be admissible in his favor as evidence of the fraud, by which he would be exonerated from liability to his grantee upon the warranty.

Whenever an act of an agent is admissible in evidence, his statements relative to the act and made while doing it are also admissible as part of the res gesta.

It is a well settled rule of law that when parties to the record have a joint interest in the matter in suit, or there is a privity in design between them, an admission by one is in general evidence against all. 1 Tex. 428;15 Tex. 188;16 Tex. 43;22 Tex. 50;23 Tex. 60, 82;24 Tex. 518;post, 780; 27 Tex. 471.

An instruction that if the deed were without consideration, and made with intent to defraud creditors, it remains subject to the grantor's antecedent debts, is correct. Pas. Dig. art. 3876, note 906; 1 Tex. 326.

A purchaser of land, pending an attachment upon it, is charged with notice of the attachment lien and of the rights of the attaching creditors in the land from the date of the levy, and can hold against the creditors only such rights in the land as his vendor could have maintained, and the fact that the purchaser had no actual notice, at the time of his purchase, that the land had been attached, is immaterial. Pas. Dig. art. 149, note 262.

A deed takes effect only from the date of its delivery, and the delivery may be either actual or constructive. If a deed be not actually delivered to the grantee or his authorized agent, it is essential to its validity to prove notice to the grantee of its execution, and such additional circumstances as will afford a reasonable presumption of his acceptance of it. The presumption that a grantee will accept a deed because it is beneficial to him will never, it is said, be carried so far as to consider him as having actually accepted it. Pas. Dig. art. 1000, note 422.

Possession of a deed by the grantee raises a presumption of its due delivery to him; but this presumption may be rebutted by proof.

In a case of conflicting testimony, the judgment will not be reversed merely because the proof on which the verdict was based was meager and unsatisfactory. Unless clearly wrong, the verdict in such a case will not be disturbed in this court. Pas. Dig. art. 1470, note 566.

APPEAL from Grayson. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

On the 10th of June, 1856, the appellees, who were a mercantile firm of New Orleans, Louisiana, brought this suit to recover of Warrick Martin, who was a resident of the state of Mississippi, the amount due upon his note dated July 3, 1854, to the plaintiffs, for the sum of $10,467 and interest, and to subject to payment thereof the undivided half interest of said Martin in sundry tracts of land, comprising over twenty thousand acres, which interest they attached upon affidavit of the non-residence of Martin. Thomas B. Lincoln and J. Blodget Britton, both non-residents of the state, were also made defendants.

After charging the indebtedness of Martin, and describing the various tracts of land, the original petition alleges that the lands were located by one B. F. Hall in his own name, but that an undivided half interest was owned by the said Martin, and that Hall had transferred and conveyed his half interest to one Huffman, who thus became the joint owner with Martin of the whole of the lands; that on the 27th of May, 1854, Martin, for the purpose of defrauding petitioners, and to prevent them from making their said debt out of the lands, combined and confederated with Lincoln to induce Hall to execute to Lincoln a power of attorney, empowering Lincoln to sell and dispose of the entire interest in the said land inclusive of said Martin's interest as well as Hall's, in whom the legal title had remained up to that time; that on the 11th of August, 1854, Lincoln, by virtue of his power of attorney from Hall, conveyed Martin's half interest in the land to J. Blodget Britton; and subsequently, on the 19th of August, 1854, conveyed Hall's interest to said Huffman for the consideration of $1.25 per acre. And petitioners charge, that although Lincoln's deed, as agent, to Britton purports on its face to be in consideration of $5,000, yet in fact it was made without any consideration whatever from Britton to Lincoln, Hall, or Martin, and that it and the whole transaction was a fraud upon petitioners, as creditors of Martin, to prevent them from making their debt out of the land. They, therefore, charge that the power of attorney from Hall to Lincoln, and the deed from Lincoln, as agent of Hall, to Britton, were fraudulent and void, and that the equitable title to lands conveyed to Britton remains in Martin. They pray that the power of attorney to Lincoln, in so far as it affected Martin's interest, might be canceled; that Huffman's right as to Hall's own portion be protected; that the deed to Britton from Hall by Lincoln, as his agent, be set aside as fraudulent and void; and that Martin's half interest be decreed subject to petitioners' demands and be sold for payment thereof.

The writ of attachment issued on the 11th of June, 1856, and was levied the same day on one undivided half of the land in controversy, as the property of the defendant, Martin.

At the spring term, 1857, judgment by default was taken against the defendant, Martin.

At the fall term, 1857, Isaac Johnson, the intestate of the appellant, filed his petition of intervention, claiming to be owner of the entire interest attached as the property of Martin. He disclaimed any knowledge of the indebtedness of Martin to the plaintiffs, and also of the fraud and collusion charged by the plaintiff against Martin, Lincoln, and Britton. But he represented that plaintiffs ought not to have judgment annulling the power of attorney from Hall to Lincoln, nor setting aside the deed from Lincoln to Britton, nor declaring the land subject to the claim of the plaintiffs against Martin, because, he alleges, neither said Martin, Lincoln, nor Britton, has now, nor at the commencement of this suit did have, any right, title, or interest, legal or equitable, in or to the said lands, or any part of the same; that this intervenor, on the 15th of January, 1855, purchased all the right, title, and interest, of every kind, in the said lands, which either said Martin, Lincoln, or Britton had in or to the same; and that since the date last mentioned he, this intervenor, has been and still is the legal and equitable owner of the same, as will appear by reference to the following papers and muniments of title, viz.: power of attorney from Hall to Lincoln, dated March 27, 1854; deed from Martin to Lincoln, dated July 3, 1853; deed from Hall, by his agent, Lincoln, to J. Blodget Britton, dated August 11, 1854, and deed from Britton to this intervenor, dated January 15, 1855.

The intervenor further avers and charges, that, if there were any fraud or collusion between the defendants, or any of them, to the wrong, injury, or detriment of the plaintiffs, or any other creditors of Martin, this intervenor had no notice thereof, nor did he ever hear charges of that character brought against the defendants until long after the institution of this suit. He further avers, that he is a purchaser in good faith, for a valuable consideration paid to said Lincoln, that this suit is a cloud on his title to the lands in controversy, and he therefore prays that it be removed, and for general relief.

At the spring term, 1858, the plaintiffs amended, and charged that, at the time of the execution of Hall's power of attorney to Lincoln, Martin was indebted to them by open account for acceptances, etc., in the sum for which his note of date July 3, 1854, was subsequently given; and they reiterate their charge, that the said power of attorney was made for the purpose of covering up Martin's interest in the lands, so as to prevent plaintiffs from making their said debt. They repeat their charge, that the deed from Lincoln, as agent of Hall, to Britton, was without consideration, and was fraudulent; and they further charge, that the deed from Britton to Johnson, set up by the latter in his petition of intervention, was likewise executed without consideration, and for the same fraudulent purpose; that Britton and Johnson had full notice at the time of the making of said deeds of the said fraudulent purpose of the same; that at the time the deed from Martin to Lincoln, also relied upon by the intervenor, was executed, the said Martin was indebted as aforesaid to the plaintiffs, as was well known to Lincoln at that time, and...