F. M. Kendrick, Guardian, &c., v. Taylor & Hart, 27 Tex. 695

Bell, J. We are of opinion that there is error in the judgment of the court below, for which the said judgment must be reversed. In the statement of facts agreed upon by the parties, it is shown that the negro man Emanuel was the separate property of James T.

Bloomfield, and that his wife, Sarah Jane Bloomfield, owned as her separate property a negro woman and child; that about the year 1850 or 1851, the said James T. and the said Sarah Jane exchanged their said negroes by verbal sale and delivery—the said James T. receiving the -said negro woman and child from the said Sarah Jane, and she, in exchange therefor, receiving said boy Emanuel. It is shown that James T. Bloomfield, after the exchange, sold the woman and child as his own property. It is also shown that the exchange between the said James T.

Bloomfield and his wife took place long before the creation of the debt which the appellees are seeking to collect. In the ease of Bradshaw v. Mayfield, (18 Tex., 21,) it was held by this court that a verbal sale of a negro by the husband to the wife was valid between the parties and their representatives.

It was said in that case that “verbal sales and gifts between husband and wife ought not to be admitted unless on clear and satisfactory proof that the property was divested out of the vendor or donor and vested in the vendee or donee;” but by this it was not meant that the wife could not vest title in the husband without writing an acknowledgment in due form of law; because to require that would be a contradiction of the proposition that a verbal sale by the wife to the husband could be sustained upon any kind of proof.

We are of opinion that such transactions between husband and wife as are admitted to have taken place between James T. and Sarah Jane Bloomfield ought always to be subjected to the most rigid scrutiny by the courts; and we would not be inclined to sustain a verbal sale or exchange or gift between husband and wife, except upon the clearest proof that the parties acted in good laith, with a well defined intention ánd purpose, and that the transaction was free from coercion, importunity or undue influence of any kind.

In the present case it is admitted that there was “ an exchange by verbal sale and delivery,” and that each received from the other the property given in exchange. This must be held to be an admission that the transaction was real—was in good faith —was, in fact, a valid exchange or sale of property.

It is shown by the statement of facts in this case, that the exchange of property between James T. and Sarah Jane Bloomfield took place more than three years before the debt to the appellees was created; and we think it clear, the title of the slave Emanuel having vested in the wife by virtue of the , exchange, that upon the principles laid down by this court in the cases of Parks v. Willard, and Edrington v. Mayfield, the subsequent creditors of the husband can have no pretence for subjecting this property to the payment of their debts.

A bill of sale was not necessary to pass the title to the slave; nor could the silence of the wife (though it is not shown that she was silent,) respecting her title, work any forfeiture of her rights. It is shown that James T. Bloomfield survived his wife' Sarah Jane. He therefore became entitled, upon her death, to a life estate in one-third of the slave Emanuel, and his subsequent bill of sale to his children cannot deprive his creditors of their right to subject that interest to the payment (pro tanto) of their debts.

The appellees do not ask this court, in the event of a reversal of the judgment upon the ground that the slave Emanuel is shown to have been the property of Mrs. Sarah Jane Bloomfield, to make a decree subjecting the interest of James T. Bloomfield in the slave to the payment of them debt; but that this may be done, if it is desired, and as the interest of all parties can perhaps be better promoted by remanding the case to the District Court for that purpose, the judgment of the court below is reversed and the cause remanded. Reversed and remanded.