Robert McCulloch v. Rufus H. Renn et al., 28 Tex. 793

Smith, J. —W e are of opinion that the sale of the negro, Bettie, on the 11th August, 1839, by the representatives of the estate of George W. Johnson, deceased, and the confirmation thereof, vested the title in the purchaser, Raney Ann Johnson; and that by the common law, which was in force in the State of Alabama at the date of her intermarriage with Charles F. McDade, on the 1st March, 1840, her title to the negro was completely vested in her said husband; and that the deed of gift for the negro, executed by said Charles F.

McDade and wife, 4th May, 1840, to the minors, John H. and George Ann Johnson, now Renn, operated to vest the title fully in them. At that time the said minors were very young, and the subsequent possession of the negro by their said parents was consistent with the deed of gift, and of itself it did not afford evidence of fraud in the deed, whether properly recorded or not. (6 Tex., 49; 1 Ala., 52.) Upon the question of title in the plaintiffs below, we believe the evidence sufficient to warrant the verdict of the jury in this respect.

The defendant below contends, and there is evidence going to prove, that after this deed of gift was made Haney Ann McDade and James H. McCulloch sold the negro, Bettie, to Mrs. Carson, for $800; that she at her death had possession of the said negro, and, under her, the defendant claims title and insists that the deed of gift was fraudulent and void as to her, she being a subsequent purchaser for value, &c. There is some conflict of testimony respecting the consideration paid by Mrs. Carson for the negro, part going to prove she paid $800, and some that she paid nothing for her.

However that may be, the weight of the testimony appears to he that she and those claiming under her. had notice of the deed of gift at the time of her purchase, which will deprive them of all the protection given by law to subsequent innocent purchasers, whether the deed of gift were duly recorded or not. There appears to he another difficulty in the way of those claiming under Mrs. Carson. She purchased from Mrs. McDade, who, on account of her coverture at the time, could make no valid sale of the property, if it had been hers, and the purchaser from her could take no title.

Besides, she had none to transfer, her title having passed to her husband, Charles F. McDade, who refused to concur in the sale to Mrs. Carson. She, having acquired no title, could transfer none to the defendant below. The minority of the plaintiffs below protects them from the operation of the statute of limitation. The charge of the court to the jury may be objectionable, as not presenting the law of the case in as clear a light as it should have done, but the error, if there be any, was in favor of the defendant below, and can furnish him no grounds of reversal.

Upon a full consideration of the merits of the cause, we are satisfied that the verdict of the jury and the judgment are in accordance with the justice of the case, and the judgment is Aeeirmed.