Panhandle National Bank v. J. S. Foster, 74 Tex. 514

Stayton, Chief Justice. This is a proceeding under the statute regulating the trial of right to property. The property in controversy consists of a stock of horses, numbering four hundred head more or less, levied upon on the range as .the property of Wm. Perrin, under an execution against him in favor of appellant.

The sheriff’s return showed that no actual seizure was made, but that notice was given to James Burgess, “in charge and controlling said horses.” Before the trial began the claimant asked that the sheriff be permitted to amend his return so as to show that Burgess was in charge of the horses as his agent, which, without any evidence that the fact was so other than the declaration of Burgess made at the time notice of the levy was served upon him, the court permitted to be made, and then ruled that the burden of proof rested upon appellant, and refused to hear other evidence. This ruling is assigned as error.

If property be taken from the possession of a claimant the statute places the burden of proof on the party seeking to subject it to the payment of his debt, but if it be taken from the possession of any other person, then the burden rests on the claimant. Rev. Stats., arts. 4838, 4839. This statutory rule was evidently intended to give effect in so far to-the presumptions arising from possession of chattels, and it may be that such possession as is evidenced by an exclusive control of horses running on the range, as they often do in this country, would be within the meaning of the statute.

That Burgess had control and management of the horses is not questioned, and this would place the burden of proof on the claimant unless it was shown in some lawful manner that he was the agent of that person. That fact could not be shown by the declarations of Burgess made to the sheriff, in the absence of some fact other than those shown. The court should have heard any proper evidence offered to show who had possession, actual or constructive, of the horses at the time the levy was made, and should not have fixed the burden of proof on appellant upon the mere declaration of Burgess as to his agency.

Appellee claimed to have bought the horses from Perrin, and the issue was whether the sale was fraudulent as tp creditors of the latter. The fourth paragraph pf the charge given presented the law applicable to the invalidity of voluntary conveyances by a debtor, without making notice or want of notice of the indebtedness a material inquiry, but in the fifth paragraph the court instructed the jury as follows: “If the jury believe from the evidence that Wm. Perrin transferred the property in controversy to J. S. Foster without a valuable consideration, and that Wm.

Perrin was then in debt and did not then have property, besides that transferred to J. S.

Foster, within this State sufficient to pay his debts then outstanding, and that Foster had knowledge of such debts at the time said purchase was made, and said purchase was without consideration valuable in law, you will find for the plaintiff.” This charge was misleading in that it left the jury to infer that the conveyance, even though without valuable consideration, might be considered valid if Foster was ignorant that Perrin was indebted at the time the conveyance was made, while knowledge or want of knowledge of his indebtedness tvas an unimportant inquiry if the conveyance was purely voluntary.

It is urged that the evidence required a finding that the conveyance to Foster was fraudulent, and we are requested to pass upon that question, but in view of the fact that the judgment will be reversed on account of rulings referred to it is neither necessary nor proper that we should pass upon the question of fact presented. The judgment of the court below will be reversed and cause remanded. Reversed and remanded. Delivered October 15, 1889.