D. G. & E. Mills v. Edwin Waller, 1 Dallam 416

HEMPHILL, Chief Justice.—The appellants commenced their suit in the District Court for the County of Brazoria on the 28th day of February, 1837, against one John Thomas, to recover a debt of $958.22, with interest at 10 per cent from the first day of October, 1836, being the balance due on a note of hand drawn by the said Thomas in favor of the appellants, and dated the 17th day of May, 1835. The petition prayed for a writ of attachment, alleging that the said Thomas was an absentee, and that he owned a tract of about 800 acres of land in the county of Brazoria.

The attachment was issued and executed on the day above nJmed on the land described in the petition. On the 4th of March following, a supplementary petition was filed, alleging it had been discovered that the said Thomas had property of a movable nature within the county, and that unless the same were attached they feared the loss of their debt—the land being incumbered with a mortgage belonging to McKinney and Williams.

On the second writ of attachment issued, the sheriff made the following return: “Not being able to find the specific property described in that instrument, I thereupon seized and sequestered all the property in this county in the defendant’s brand.” At the succeeding term of the court, the curator appointed to represent the interests of the absent defendant put in his answer, disclaiming for the defendant all right, title and interest in the land attached, and that long prior to the levying of said attachment the land had been sold by the said Thomas to one Moses L. Patton.

At the said term of the court, Edwin Waller, the appellee, filed his plea of intervention, alleging his ownership of the land attached, and that it was in nowise responsible for the liabilities of Thomas.

The appellants put in a general denial of the allegations of the intervener, and at the spring term of the court of 1838, the jury found a verdict in the following terms: “We, the jury, find judgment for Mills against Thomas for $950.22, with interest at 10 per cent from the 1st of October, 1830, as specified in the note, and that the property attached is not liable for the debt.” Judgment was in accordance with the verdict, and we are asked to reverse the same on various grounds. 1.

It is alleged to be manifestly erroneous in not condemning the personal property attached as liable to the demand of the appellants. The return of the sheriff to the second writ of attachment is exceedingly indefinite. He does not enumerate the articles of property levied on, nor does he affirm that they are property of the defendant; but that being unable to find the specific property described in the instrument, he had seized on everything in the defendant’s brand.

With this vague return of the sheriff, and in the absence of all proof that the articles attached belonged to the defendant, we are of opinion that the jury was justified in finding that the said property was not liable to the debt of the appellants. But the decision of this question is unnecessary. The appeal bond has been executed in favor of the intervener alone.; and our revision of the decision of the court below will not extend beyond the matters in controversy between the said intervener and the appellants. 2. That the sale from Thomas to Patton was void, on several grounds.

First, the disparity between the price paid by Patton and the value of the land raises a violent presumption of fraud, which amounts to conviction when it is observed that Patton in his subsequent sale to Waller refuses to warrant against any existing lien. Patton purchased the land from Thomas in the town of Liberty on the 3d of April, 1836, for $1000, and on the 24th day of February, 1837, sold to Edwin Waller, the appellee, for $5500. It appears that the sale from Thomas to Patton took place at a time when the county of Brazoria was invaded by the Mexicans and generally abandoned by its inhabitants.

It is stated that the land was proven to be worth $7000. It is to be regretted that facts are not more fully and clearly set forth in statements furnished from the courts below. We are not informed whether this was the value of the land at the period of its sale to Patton, or at the time of the trial— whether it was worth $7000 when the country was occupied by an overwhelming invading army and subjected to all the horrors of war, or in a period of comparative peace and prosperity.

To raise the presumption of fraud the disparity must be shown to exist between the consideration paid and the actual value of the thing at the period of sale. We are not informed that this was attempted in this case, and the verdict of the jury repelling the presumption of fraud, we are forced to the conclusion that the value proved referred to the time of the trial and not of the sale.

From such evidence, the jury were not authorized to infer that the price paid for the land two years previously was so grossly inadequate as to be fraudulent against third parties, and especially when it is recollected that the sale was effected when the county was deserted by its inhabitants, desolated by a powerful invading force, and by many of the best patriots believed to be irretrievably lost. There is no evidence that Patton had any knowledge at the time of his purchase of the existence of the demand of appellants against Thomas.

This must be proven before the alienation to Patton could be set aside as fraudulent. It is not sufficient to establish fraud on the part of the vendor and actual injury to creditors; but a knowledge of the fraud on the part of 'the vendee must also be proven. In Curia, Phillip, Lib. 2, chap. 13, the law on this subject is expressed in the following terms: “Y asi en la enagenacion por titulo oneroso, se requie-ran tres cosas; fraude de parte del enagenante, y sciencia de el de parte del recibiente, y el evento o suceso del fraude en daño de los acseedores.” See also Kenney v. Dow, 10 Martin, 577.

Nor is there proof that the insolvency of Thomas was known to or suspected by Patton, or that the creditors of Thomas would be injured or affected by the purchase of the land. The fact that Patton in his sale to Waller refused to warrant against any other claim to the land than his own, does not in our opinion raise the presumption of fraud in the first transaction. Nearly eleven months elapsed between the first and the latter sale.

Ample time was afforded Patton to become acquainted with the fact of incum-brances and claims against the premises; and his refusal to give more than a quitclaim title can not be regarded as other than an evidence of a desire on his part to avoid litigation. But it is said that the sale from Thomas to Patton was

an act under private signature; that the law of Louisiana in relation to attachments was then in force in this Bepublic, and that under that law it has always been decided that an attaching creditor had a preference over a purchaser under private act not recorded; and that therefore the sale to Patton has no force and validity as against the appellants.

The decisions referred to were not founded on any provisions of the act regulating attachments; but on various other articles of the code prescribing the effect and operation of sales under private signature as between the parties to the same, and also in relation to third persons. This portion of the laws of Louisiana has never been in force in this Republic; and the decisions thereon, can not be regarded as authority.

It can not be denied, however, that the provisions of the laws of Spain in relation to private acts are similar to those of Louisiana, and that under both systems it is an established principle of law (though not without several modifications and exceptions) that acts under private signature have no dates as against third parties. The subject is not without its perplexities; but it will be sufficient to discuss and resolve them when they fairly arise in a case before the court. In the present instance it is unnecessary.

The objections made to the act of sale is, that it was under private signature, and therefore inoperative against the appellants. Without touching on the subject of conveyances generally, we are of opinion that this was not a private, but an authentic act. It was executed before a notary public, with instrumental and assisting witnesses, and is free from all the objections which could be urged against it as

an act under private signature. If it were agreed that this conveyance was effected by the registration law of 1836, vet it was not required to be recorded until long after the commencement of the action. It is, however, clear that the rights of the parties arose under the laws in force at the time of the execution of this instrument; that they are controlled and established by these laws, and not by subsequent acts of legislation.

Upon the consideration of the whole matter, the jury having found in favor of the appellee, and there being no sufficient proof to rebut the presumption always arising that a verdict is correct, we are of opinion that the appeal should be dismissed; and it is hereby ordered and decreed that the same be dismissed, and the judgment of the court below be affirmed. Dismissed.