William J. Weisiger v. Thornton Chisholm et al., 28 Tex. 780

Coke, J. —The instructions of the court to the jury are substantially correct, and there is no error in the refusal of the court to give the instructions asked by the appellant, because, so far as they were proper, they had been unbodied in the charge already given, and the court very properly refused to repeat them. But there was manifest error in the admission of the testimony of the witness John Hanks, by whom the defendants proved that Thornton Chisholm was only a surety upon the note on which the judgment was rendered, to satisfy which the land in controversy was sold.

We are at a loss to perceive the ground on which it could be supposed that that testimony was admissible, or was relevant to the issue in this case.

In considering the questions presented by the pleadings, it is not possible, in any view of them, that this testimony could aid the jury in arriving at a correct conclusion; for it could not, of course, have been supposed that acts in fraud of the rights of creditors, and void when done by the principal, are legitimate and authorized when done by the surety, or that the rights of a purchaser at an execution sale are affected by the fact that the defendant in execution, whose property is sold, was a surety, and not the principal in the note on which the judgment is founded.

If this testimony were simply irrelevant and immaterial, and such as was not likely to have influenced the jury, the error of its admission would not necessarily require a reversal of the judgment. But is that its character? We think not. The jury were properly instructed by the court to weigh all the facts and circumstances in proof before them in deciding upon the questions submitted. This testimony was admitted over the objections of the appellant, and was doubtless regarded by the jury as relevant to the issue, and proper, under the charge of the court, to be considered.

Its influence, if it had any, and we are not prepared to say that it had none, had necessarily a tendency to mislead the jury to the prejudice of the appellant.

In a case of this character, where the question is one of fraudulent intent, which is scarcely ever susceptible of direct proof, but must be established, if at all, by a consideration of all the facts, circumstances, and surroundings of the case, it frequently «happens, that a circumstance apparently immaterial and unimportant exerts a controlling influence in the formation of the verdict; and we cannot undertake to say that the jury in this case, after this testimony was decided by the court to be admissible, and consequently material and proper to be considered in connection with the other testimony in the case, did not attach to it an undeserved importance, and- draw from it the inference that the surety, in respect to the issue before them, stood in a better position than he would have done had he been the principal obligor.

Independently of the manifest error in the admission of this testimony, the overruling by the court of the motion for a new trial is a ground on which the judgment in this case must be reversed.

The verdict of the jury is unsupported by the evidence,” and should have been set aside and a new trial granted. • It is a familiar principle of law, that participation by the vendee in the fraud of the vendor, or a knowledge by him of an intent on the part of his vendor to hinder, delay, or defraud his creditors, although the consideration paid may be reasonable and adequate, avoids the deed, and leaves the property attempted to be conveyed liable to be sold for the satisfaction of the demands of creditors. (Castro v. Illies, 22 Tex., 503; Edrington v. Rogers, 15 Tex., 188; Hancock v.

Horan, 15 Tex., 510.) The questions for the consideration of the jury were,. whether Thornton Chisholm conveyed the land in controversy with the intent and purpose to hinder, delay, and defraud his creditors, and, if so, whether Bradford Chisholm, the grantee, participated in this fraud, or knew, or might by reasonable diligence have known, of this fraudulent intent. Upon finding from the evidence the affirmative of these propositions, the jury were instructed to bring in a verdict for the plaintiff.

If the witnesses, Totty and Eeeves, can be believed, and they are not impeached by anything apparent in the record, there cannot be a particle of doubt of the fraudulent purpose and intent of Thornton Chisholm, or of the knowledge of and participation in it by his vendee, Bradford Chisholm, in making the conveyance in question; for both these witnesses prove the direct admissions of both Bradford and Thornton Chisholm of the fact, and all the facts and circumstances in proof strongly corroborate their testimony.

The insolvency of Thornton Chisholm; the conveyance of this land (the only property he owned) to his brother for a consideration grossly inadequate, at a time when he was about being pressed by his creditors, and that consideration a small tract of land, on which he immediately moved and made his homestead, thereby protecting it from forced sale; his subsequent offers to sell the land in controversy, speaking of it as his own; the receipt by him of a horse given in part payment for the rent of a portion of this land; the execution and delivery to him by Bradford of a general power of attorney, a short time after this sale, by which the possession, control, and unlimited power of sale over this land reverted to him; the payment of an additional consideration by the conveyance of the two tracts, respectively of five and fifteen acres of land, the apparent effect of which was to strengthen and fortify this transacaction in its weakest point, and this after it had been attacked; the utter absence of any proof to show that any price was agreed on for the land in controversy, or for that taken in payment of it, except the recitals of the deed of conveyance in question, which contradicts all the proof in the case with reference to the character and amount of the consideration and the mode of payment; all these circumstances, strongly indicative of fraud, and unexplained by other proof in the case, support and corroborate with great force and cogency the direct and positive testimony of the witnesses, Totty and Reeves, who, for aught that appears in the record, need no corroboration to entitle them to belief. (Bryant v.

Kelton, 1 Tex., 428; Green v. Banks, 24 Id., 518; Gibson v. Hill, 23 Id., 82; Wright v. Linn, 16 Id., 43; Howerton v. Holt, 23 Id., 60.) Upon consideration of the whole testimony, we see nothing which explains or breaks the force of this formidable array of facts and circumstances, or repels the violent presumption which they raise that the deed in question is fraudulent.

The question of intent is one of fact which lies peculiarly within the cognizance of the jury, to be deduced from all the facts and circumstances in proof before them, and a fraudulent intent will not be presumed, but must be proved, and before it ean be proved, the jury should be satisfied, from the proof, of its existence. The jury are the exclusive judges of the weight and credibility of the testimony.

If there were a conflict of testimony in this case, we should not trench upon the province of the jury by setting aside their verdict, although it might not seem to us to be right, because they and not we are the judges of the degree of credit to be attached to the statements of witnesses.

But fraud is a fact, to be found, like other facts, from the testimony, and while it will not be presumed, should, when the proof establishes it, be recognized by the verdict of the jury, and we know no rule of law which secures inviolability to a verdict in cases of this character, more than in others where there is no conflict of testimony, and the verdict is contrary to and unsupported by the evidence. (Luckett v. Townsend, 3 Tex., 134; Green v. Hill, 4 Id., 468; 19 Id., 259; Gibson v. Hill, 23 Id., 83; Shropshire v.

Doxey, Galveston term, 1860.) [25 Tex., 127.] The judgment is reversed, and the cause remanded for further proceedings. Reversed and remanded.