Weisiger v. Chisholm

• Decision Date: 01 January 1859
• Parties: WILLIAM J. WEISIGER v. BRADFORD CHISHOLM AND OTHERS.
• Court: Texas Supreme Court

22 Tex. 670

WILLIAM J. WEISIGER

v.BRADFORD CHISHOLM AND OTHERS.

Supreme Court of Texas.

1859.

Undoubtedly, the presumption must generally be indulged, that the charge of the court embraced a correct exposition of the whole law of the case, where the contrary is not shown by the record; but this is not a rule of invariable application.

Where the charge of the court cannot be found, but instructions, which were quite unexceptionable, and peculiarly proper to have been given, were refused, and it does not clearly appear that the right of the case has been attained by the verdict, it is better to reverse the judgment; for otherwise, if the error in refusing the instructions asked, were not corrected by the charge of the court, irreparable injury might be done to the appellant.

Where a debtor conveys property, with intent to delay, hinder, or defraud his creditors, if the purchaser, although he may have paid a valuable and adequate consideration therefor, knew or was apprised of the intent, purpose, or design of the debtor, the conveyance is void as to existing creditors and subsequent purchasers at a judgment sale in favor of such a creditor, though the conveyance was duly recorded before suit was brought by the creditor.

ERROR from De Witt. Tried below before the Hon. Fielding Jones.

Suit brought on the 30th of January, 1858, by plaintiff in error, against Bradford and Thornton Chisholm, defendants in error, for possession of a tract of land described in the petition; and to set aside, as fraudulent and void, a deed for the said land made by the defendant, Thornton Chisholm, to his brother Bradford Chisholm, on the 29th day of January, 1857.

The plaintiff alleged, that on the 12th day of October, 1856, the defendant, Thornton Chisholm, executed his promissory note for the sum of $814, to Hanks, payable January 1st, 1857, which was transferred by Hanks to Walker; who, on the 16th of February, 1857, commenced suit, and recovered a judgment thereon, on the 27th of March, 1857; that an execution was issued on this judgment, by virtue of which the land in controversy was sold on the 1st day of December, 1857, and the plaintiff became the purchaser. The plaintiff also alleged, that at the time the said deed was executed by Thornton, to Bradford Chisholm, Thornton was wholly insolvent; and that the conveyance was made by him, with the intent to delay, hinder, and defraud his creditors, all which was at the time well known by his brother, Bradford Chisholm.

The defendant, Thornton Chisholm, pleaded a general denial; and that he had sold the land to his co-defendant, in good faith, and without any fraudulent intent or design, for an adequate and valuable consideration, before the commencement of the suit.

The defendant, Bradford Chisholm, also pleaded a general denial; and that he purchased the land in good faith, for a full, fair, and valuable consideration, which had been paid; and he denied that he intended to aid his co-defendant in delaying, hindering, or defrauding his creditors, or that he had any knowledge of said intent on the part of Thornton, if any such was entertained by him. He also alleged, that he had purchased the land from Thornton Chisholm, and that his deed was duly recorded, long before the purchase thereof by the plaintiff, as was well known to him at the time of his purchase.

Upon the trial, the plaintiff proved the allegations of his petition as to the note, suit, judgment, execution, sale and purchase of the land by him; and introduced in evidence the deed from Thornton to Bradford Chisholm, as described in the petition. He also introduced a great deal of testimony tending to prove the insolvency of Thornton Chisholm, at the date of the conveyance of the land by him to his co-d...