James H. Tuttle, Adm'r v. Turner, Wilson & Co., 28 Tex. 759

Coke, J —There was no error in the admission of the testimony of the witness, B. F. Hall. The objection, that he was incompetent by reason of interest, is not well taken. The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be evidence for or against him in some other action. (1 Greenl. on Ev., § 390.) Hor does the rule, that interest disqualifies, apply where a witness testifies against his interest. Hall, the witness, conveyed the lands in controversy to J.

Blodget Britton by deed, containing a clause of general warranty. Britton, by quit-claim deed, conveyed the lands to the appellant’s intestate. Hall’s testimony was introduced by the appellees to prove the invalidity of the appellant’s title, of which Hall was the warrantor. The effect of his testimony was' to render Hall liable on his warranty. Then, so far as his interest is to be affected by the result of this suit, Hall testified against that interest.

The record of the judgment in this case would be admissible for a breach of his covenant of warranty in a suit by Johnson against Hall, as evidence of the fact of its rendition and of its necessary legal consequences, which again would be against Hall’s interest, by showing the fact and extent of appellant’s eviction. (Young v.

Vredenburg, 1 Johns., 159; 2 Serg. & Rawle, 415; 1 Greenl. on Ev., §§ 538, 539.) It is said though, that by his testimony Hall proves that his deed to Britton was made in pursuance of a combination between himself, Martin, Lincoln, and Britton, to defraud the creditors of Martin, and thereby relieve himself from liability on his warranty, on the principle that ex turpi contractu non oritur actio.

This position is not tenable, because the judgment would not be admissible in a suit against Hall for breach of his covenant of warranty for any other purpose than to prove the fact of its rendition, and the legal consequences flowing from it. It would not be evidence of any of the facts mentioned, which it is supposed would discharge Hall’s liability; they would have to be proved by original evidence, and the judgment would not be admissible for that purpose. Brit-ton has no right of action against Hall for a breach of his warranty.

He, by his quit-claim deed, divested himself of his interest, both in the land and in Hall’s covenant of warranty. The appellant’s intestate alone has the right of action. The injustice of admitting the record of this judgment in Hall’s behalf in such an action by the appellant, for the purpose of proving this fraudulent combination, is manifest. Do notice of, or participation in, the fraud is proved on Johnson, and certainly he should not lose his recourse on his warrantor hy reason of the fraud of others, in which he did not participate, and of which he had no notice.

In no event can the record of the judgment in this case be promotive of Hall’s interest; on the contrary, wherever admissible, it will be against his interest The objection to the admission of Lincoln’s statements, as proved by Hall, in reference to the insolvency of Martin at the time Lincoln presented Martin’s power of attorney to Hall, were properly overruled. Lincoln was Martin’s agent, and, from the time he commenced to figure in this business, appears to have been the controlling spirit. The other actors, Hall, Martin, and Britton, seem to have been mere puppets in his hands to do his bidding.

Lincoln’s statements, made at the time he was Martin’s agent, and while he was transacting his business under the power of attorney with Hall, were a part of the res gesta, to he proved as any other fact.

Whenever what an agent did is admissible in evidence, then it is competent to prove what he said about the act while doing it. (1 Greenl. on Ev., § 113; Story on Agency, §§ 134, 137.) In addition, Lincoln and Martin are both parties to the record, shown by the proof to have been acting in concert with Hall and Britton in the perpetration of the fraud charged in this case, all moved by a common design, and identified with each other and with Johnson in interest. Lincoln was at one time agent, under powers of attorney, for Hall and Martin, and seems to have had entire control of Britton, at least of his name.

It is a well settled rule of law, that where 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. (Greenl. on Ev., §§ 111, 112, 174.) The objections to the admission in evidence of the written instrument executed hy Lincoln to Martin were propcrly overruled. Its relevancy is not questioned, nor is it objected that its execution is not proved. We presume that its execution was properly proved, and, if so, it was clearly admissible.

There is a general assignment that the court erred in its instructions to the jury, but no specific error is pointed out, and the appellant’s counsel in a lengthy argument has not questioned the correctness of the propositions of law they assert, or their applicability to the facts of this case. We might well decline, under the circumstances, to notice the assignment, but will consider it in connection with the question of the sufficiency of the testimony to support the verdict, which is the only remaining question raised by the assignments of error deemed worthy of consideration.

That there was a combination between Hall and Martin in the first place to defraud the creditors of Martin is clearly shown by the testimony. It is equally clear that Lincoln and his passive instrument, Britton, became privy to and co-workers in this combination. The testimony shows that Martin was in failing circumstances, and resorted to this method of concealing his property from his creditors. He placed these lands first in Hall’s. hands, afterwards in Lincoln’s, who conveyed them to Britton without consideration. Ho consideration passed to Martin from any of these parties for these lands.

The jury were instructed, that if they believed the lands were conveyed to Britton without consideration, or with intent to hinder, delay, and defraud the creditors of Martin, and accepted by Britton with a knowledge of that intent, the lands were liable, as long as they remained in Britton’s hands, for Martin’s debts. There can be no controversy as to the correctness of this instruction with reference to the facts of ) this ease; that is too plain for serious argument. (Edrington v. Rogers, 15 Tex., 188; Castro v. Illies, 22 Id., 50; Green v.

Banks, 24 Tex., 518.) The sale of the lands by Lincoln and Britton to the appellant’s intestate, Johnson, presents the only debatable question in the case, and that is a question of fact as to the date of the consummation of the sale by delivery of the deed. The record does not show that Johnson had any notice of the invalidity of Britton’s title. But if he purchased after the appellees acquired a lien on the lands by levy of the attachments, his rights are subordinate to theirs. The attachment lien being a prior incumbrance, he takes subject to its prior satisfaction.

Being a pendente lite purchaser, he is affected with notice of the rights of the appellees, and takes only what Britton could hold against them. In a word, if Johnson purchased and received his deed after the levy of the attachment in this suit, he stands with reference to the subject-matter of litigation, so far as the appellees are concerned, whatever may be said as to other creditors, precisely in the shoes of Britton. (1 Story Eq. Juris., §§ 405, 406; 11 Vesey, 194; 1 Johns. Ch., 566; Briscoe v. Bronaugh, 1 Tex., 826.) And this is the substantial purport of the charge of the court to the jury on this point.

Whether an instruction more unfavorable to the appellant might not have been given, consistently with the law applicable to the case, it is not necessary to determine. It is sufficient to know, for the purposes of this case, that there is no error in this instruction of which the appellant can complain. The question of the date of this sale to Johnson, and of the execution and delivery of the deed to him by Britton, was fairly submitted to the jury, and they found in favor of the appellees. A deed takes effect only from the date of its delivery, which may be either actual or constructive.

It is essential to the operative force and validity of a deed, if not actually delivered to the grantee or his agent authorized to receive it, to prove notice to him of its execution, and such additional circumstances as will afford a reasonable presumption of his acceptance of it. The presumption that a party will accept a deed because it is beneficial to him, it is said, will never he carried so far as to consider him as having accepted it. (4 Kent Com., § 454; Hulick v. Scovill, 4 Gilm., 159.) But possession of a deed by the grantee raises a presumption of its due delivery. (Chandler v.

Temple, 4 Cush., 285; Trust Co. v. Cole, 4 Fla., 359.) This presumption may be rebutted by proof to the contrary. The testimony in the case, as to the date of the execution and delivery of this deed to Johnson, is meagre and unsatisfactory.

It must be admitted that the evidence of the two witnesses, who depose each to a different conversation between Johnson and one of the appellees, (Wilson,) occurring in August, 1857, in Paducah, Kentucky, both of the same tenor, and almost in the same language, with no person present but one witness to each conversation, in which Johnson admits, at a time when he is litigating with the appellees in this suit, their right to subject this land to their demand, that he did not purchase or receive a deed to this land until the 17th or 18th of November, 1856, some five or six months after the attachments in this case had been levied on it, is not so satisfactory a basis for a verdict and judgment as might be desired.

These conversations may very well have occurred as stated, but there is something of improbability about them. They are out of the ordinary way that men do business. Johnson’s deed not having been placed on record until 1857, may, however, be regarded as a circumstance corroborative of the testimony of these two witnesses. On the other hand is the testimony of Lincoln, which is equally unsatisfactory, bearing internal evidence of its own improbability.

He says he sold these lands to Johnson, through Britton, in 1855, for the consideration of $4,500, which Johnson had paid for him to Steward & Co., in New York, in 1852; that Johnson was notified of the execution of the deed immediately after its date, he retaining it according to his promise, to have it put on record. The evidence shows that these lands were worth four or five times the amount received for them, according to Lincoln’s testimony.

This fact, in connection with the staleness of this inadequate consideration, and the further fact that Johnson’s deed, which Lincoln was to have placed on record, did not make its appearance until 1857, after the institution of this suit and the levy of the attachments, might well have caused the jury, while considering this point, to suspect that this deed to Johnson was made with a view to defeat this suit, aqd that it was but another manifestation of the versatility of talent before displayed by Lincoln in shifting this property about to meet the exigencies of the moment, and that Johnson was acting in this matter the part up to that time performed by Britton, who could not be relied on longer for that purpose, because he was sued, and notice of all the facts could he proved' on him.

In addition to this suspicion resting on Lincoln’s testimony, his testimony and that of the witness, Hall, conflicts, positively and directly, on another point in the case, which, in the estimation of the jury, may have impaired its force. There was no effort made to impeach the veracity or lessen the weight of the testimony of the two witnesses who deposed to Johnson’s admissions in Paducah. Amid this conflict of testimony, we cannot say that the jury have not found correctly.

It is their peculiar and exclusive province to decide on the weight and credibility of such testimony, and it is well settled in the adjudications of this court that a verdict under such circumstances will not be disturbed, unless it appear to be clearly wrong, which cannot he said of the verdict in this case. The court did not, by its charge, submit to the jury any question as to Johnson’s good faith in purchasing from Britton or Lin-coin, but tqpk it for granted, in its instructions, that he bought in good faith and for a valuable consideration. This question has not therefore been discussed.

The motion to quash attachments,.and the various demurrers, exceptions, &c., to pleadings, do not appear by the record to have been brought to the notice of the court below, or to have been acted upon, and will therefore not be considered here. Only the errors assigned by the appellant have been considered. The record has not been inspected with a view to the detection of errors against parties who have not appealed. There is no error in the judgment of which the appellant can complain, and it is Affirmed.