Danzey v. Smith

4 Tex. 206 | Tex. | 1849

LipscoMB, J.

Two questions are presented for our consideration :

1st. Does the petition show no cause of action or grounds of relief?

2d. Was tiie petition so utterly had as to preclude all possibility of its being so amended as to give a right of action ?

The petition sets out a conveyance made with an intent to defeat and defraud creditors. It can hear no other construction, as it alleges that the pretended vendor was greatly embarrassed by his debts, and that lie made tiie conveyance to prevent a sacrifice of his property, without receiving- any consideration therefor. Now, if this be true, there can be. no doubt that it was alike repugnant to law and to common honesty. And if the suit was by a creditor of the vendor, there, can he no sort of doubt that such pretended and fraudulent sale would lie held null and void, and the property so fraudulently conveyed be subjected to the, payment of all prior indebtedness and to all accruing whilst the ■.•eiidor remained in possession. In such case, had the administrator of the fraudulent vendor neglected or failed to use the neecssary and appropriate means of subjecting property so fraudulently conveyed by his intestate to the payment of (lie debts of his intestate, it would have, laid the foundation for a suil against him on the part of the creditors, and more especially if the administrator had fraudulently combined with the vendees to defraud the creditors. In fine, if this suit had been in the name of a creditor or creditors, I could not have hesitated a moment in saying the demurrer ought to have been •overruled. But unfortunately the complainants in the suit can only occupy the ground that the fraudulent vendor could have taken himself if he, was living-. And he would not be permitted to avoid his own bill of sale on the ground that he had fraudulently made it. Against him, in the absence of tlie claims of creditors, it would have been valid. This is an undoubted rule of the common law, and it is much more stringent than the civil law is believed to be. In Louisiana, under the influence of, as I presume, the principles of the civil law, although such fraudulent sale would not shield (he property from (he creditor nor from an innocent purchaser under the fraudulent vendee, yet between the parties themselves tlie vendor could reclaim the property. And it is said to he founded on this principle, that tlie vendor and vendee are equal in guilt; hut if the vendee were permitted to take an advantage of this fraudulent transact ion, ■and appropriated the property to his own use, he would therein commit a double fraud and outweigh his partner in crime. This weighing, balancing, and offsetting- guilt between the parties for the purpose of settling degrees of turpitude, though very refilled, would seem to be, as far as tlie parties are concerned, more just than the rule of the common law.

Note 87.—Epperson v. Young, 8 T., 135; MoCIannv v. Floyd, 10 T., 159; Wilson v Trawick. 10 T., 428; Robinson v. Martel, 11 T., 149; Fowler v. Stonum, 11 T., 478; Hoeser v. Kroeka, 20 T., 460. Note 88.—But see Cobb v. Norwood, 11 T., 556; Avery v. Avery, 12 T., 54; Connell v. Chandler, 13 T., 5; Seawell v. Lowery, 16 T., 47. When the fraudulent deed lias not been consummated by delivery, it is assets in the hands of the administrator. (Hunt v. Butterworth, 21 T., 133.)

But when the consequences to innocent persons arising- from the two rules is considered, advantage is perhaps found to be with the sterner common-law doctrine. In the one case tlie little danger and risk would be an inducement to the more frequent efforts to commit tire fraud, whilst that want of confidence that to a greater or less degree must always prevail between the vicious would restrain them from confiding in each other to perpetrate the fraud.

The ground taken by tlie appellants’ counsel and pressed with great earnestness upon tlie court is not believed to be well founded: that is, that as the vendor had never surrendered the possession of the slaves, the contemplated fraud was not consummated. If this distinction could be sustained, it would greatly aid in the accomplishment of the fraudulent intent, and behind it the pai-ty could safely intrench himself by making- the conveyance and continuing to hold omto the possession. If he should succeed in hindering his creditors and avoiding the payment of his debts, he would have done so without incurring- any risk with the fraudulent vendee. If, however, he should fail, and the property be taken in execution, lie then could assume the position of one who had been tempted to commit a fraud, but had yielded to the influence of better principles. In fact, so far from allowing- a favorable presumption to arise from his continuing in possession after the conveyance, it is in law the reverse, because that fact of itself constitutes a badge of fraud.

The next question is as to the petition being amendable. The court refused leave to amend. What was the amendment proposed the record does not inform us, and in the absence of such information it would be difficult to say that there was error in sncli refusal. The structure of a petition might be such as to point of itself to an amendable defect; and in sncli case perhaps it would not be going too far, in a revising court, to reverso the decision of the ■court below, should it; have refused leave to amend. Such, however, is not the character of the petition in this ease, and it is difficult to conceive of an amendment that would give a right o£ action to these complainants.

Judgment affirmed.