Bennett v. Cooks

15 Tex. 67 | Tex. | 1855

Hemphill, Ch. J.

This was a trial of the right of property. The negro Stephen had been levied upon, as the property of John H. Cocks, the husband ; and the claim is set up by Sarah H. Cocks, the wife. To establish this claim, she set up a bill of sale, dated April 18th, 1843, of the said slave, from the said John H. Cocks to John D. Pitts, her trustee. In answer, the defendant (who is plaintiff in execution) contended that the said instrument of sale was not recorded in the county where the property was found, and in fact not recorded any where until after the levy of the execution. There was proof that from and after the bill of sale, the plaintiff Sarah H. Cocks had always claimed the property as her own; that the negroes included in the bill of sale (the said Stephen, with others) were delivered to the trustee, at the time of the execution of the bill of sale; that the parties lived in Austin county ¿ that subsequently, in 1849, the husband and wife removed to Travis county, and have since lived together, using and controlling the said slaves; that Mrs. Cocks had sold one of them, and that it was generally known among the acquaintances of the family, that she claimed the slaves as her separate property that the boy Stephen, when levied upon, was in the possession of A. N. Hopkins, who, at the time of having the boy, was informed by John H. Cocks, that the slave was the property of his wife, and that he, Hopkins, sometimes paid the hire to the husband and sometimes to the wife. The deposition of John D. Pitts, the trustee, was offered by the plaintiff, at the trial, but was rejected, and an antenuptial agreement between John D. Cocks, the husband, and the said trustee, was offered by the plaintiff, but ruled out as impertinent and immaterial to the issue.

The jury found for the claimant, Sarah H. Cocks, and the defendant appealed.

It is manifest that throughout the proceedings of the Court below, the defendant John H. Bennett was regarded as a creditor in the sense of the Statute. (Hart. Dig. Art. 2777.) This Section of the Act of Limitations of 1841 provides for the registering of deeds, &c., and, among other matters, declares, in substance, that deeds, &c., after being presented for registration, shall be effectual against subsequent purchasers and creditors, and shall also, without registration, be effectual against such purchasers and creditors with actual notice or reasonable information of the grant, deed or instrument. If the defendant be a creditor, within the meaning and scope of this provision, (and as such he was considered and the rights of the parties were adjudicated on this hypothesis,) the only question, upon such issue, would be, whether he had actual, constructive or reasonable notice or information of the title of the plaintiff. The Court, in its charge to the jury, defined each of these characters of notice, viz: constructive notice, to be such as would be given by the record of the bill of sale in the county of the residence of Cocks’s wife, at the time of registration; actual notice, to be given by any means bringing actual lcnowledgeto the plaintiff in execution, of the existence of the bill of sale ; and reasonable information, to fix knowledge of the claimant’s rights upon the plaintiff in execution, would be a knowledge, brought home to him, of such facts and circumstances in connection with the negro, as would admonish a reasonably prudent man, that John H. Cocks was not the owner of the negro ; and if either of these characters of notice were established by proof, the jury were directed to find for the plaintiff.

This charge was substantially correct. The question, on the facts before the jury, was, whether the defendant had reasonable information of the title of the claimant. There was no constructive notice by record, nor was there any actual notice, as contradistinguished from reasonable information. This latter consists of a knowledge inferior to that which constitutes actual notice, and was well defined to be such facts and circumstances as would admonish a reasonably prudent man, that the title of the negro was not in the husband, (and to this might have been added,) but was in the wife. Reasonable information, not being actual notice, can only be such facts and circumstances, in relation to the claim, as would put a reasonably prudent man upon enquiry. In Parks v. Willard, it was held, that under our law concerning marital rights, which recognize in the wife exclusive and separate ownership of property, while at the same time it gives the husband the sole-management of such property, far less and inferior evidence should be deemed sufficient to put a purchaser (in this case a creditor) upon enquiry, and to affect him with notice of the right and title of the wife. (1 Tex. R. 354.)

The question of notice was fairly submitted to the jury. The facts were before them, and they proved abundantly, that the property had for ten years been claimed by the wife; that this was known to the acquaintances of the family ; and, upon the whole, we are of opinion that the jury were justified in finding for the claimant, and the judgment consequently must be affirmed.

■ Judgment affirmed.