Flanagan v. Oberthier, 50 Tex. 379

Flanagan v. Oberthier

50 Tex. 379 | Tex. | 1878

Bonner, Associate Justice.

This is a suit of trespass to try title, brought by James W. Flanagan, as plaintiff, against Benjamin C. Oberthier, as defendant.

The material facts in the case are, subtautially, these :

On the 1st day of September, 1852, James H. Trammell, as principal, and Mark Stroud, William Moore, and Jesse Walling, as his sureties, executed to Lagrand, as administrator. *381of the estate of John S. Carithers, a promissory note for the sum $18,724.45, due at twelve months. On November 4, 1853, Lagrand, as such administrator, instituted suit on the note, and on February 18,1861, the death of Trammell having been suggested, Samuel G-. Swann, as administrator de bonis non of said estate, and who had succeeded Lagrand, recovered judgment against the other makers of the note for the sum of $12,386.34, and- which on appeal to the Supreme Court was affirmed October 28, 1872. The original judgment in the District Court was recorded March 6,1861.

On June 14, 1873, execution issued on the judgment as affirmed for costs of suit, and on July 28, 1873, was levied upon the land in controversy. The same was sold under a venditioni exponas on the first Tuesday in October, 1873, and purchased by plaintiff, James W. Flanagan. To prove a common source of title, (to wit, the said Jesse Walling,) plaintiff introduced, and which were also relied on by defendant—

1. Deed from Jesse Walling to his wife, Ann Walling; conveying this land, with other property, of date October 10, 1857, and recorded same day.

The testimony shows that the consideration of this deed was the interest of Ann Walling in a league of land on the Brazos River, and to which she at the same time made deed to Jesse Walling.

2. Deed from Jesse and Ann Walling to Frederick, Moses, and Benjamin 0. Oberthier, the defendant, to the land in controversy, of date April 10, 1863.

It is shown by the evidence that Sarah Oberthier, the mother of the three last-named vendees, purchased the land for them for a valuable consideration, they at the time being absent east of the Mississippi River, without notice by her or them of any alleged fraud in the conveyance from Jesse to Ann Walling; that subsequently the defendant, Benjamin. C. Oberthier, purchased the other interest in the land, also without any such notice; that he had made improvements *382on the land to the value of $1,200, and had lived upon the same and paid the taxes thereon; that Jesse Walling died on August 4,1867, leaving property estimated at from six to fifteen thousand dollars in value.

On the trial a jury was waived. Judgment was rendered in favor of the defendant Oberthier. Plaintiff appeals and assigns as error, substantially, that the judgment of the court was contrary to the law and the evidence, and should have been rendered tor plaintiff, because the conveyance from. Jesse to Ann Walling was made to defraud the estate of Oarithers.

Eo question is made by appellant as to the lien of the judgment on the land, for the reason, doubtless, that if under the facts any such lien could have attached, the same, under the law then in force, had been lost by the failure to have the judgment reinscribed. (Paschal’s Dig., art. 3963.)

The question of the intent with which the deed was made was one of fact, presented both by the pleading and the evidence.

Although such conveyance as the one now under consideration between husband and wife should be scrutinized more closely than those in the ordinary course of business, yet, in view of the facts that the transaction was not a secret one, that the land received from Mrs. Walling, so far as shown by the record, was subject to the judgment, and that the estate of Jesse Walling seems to have been solvent, we cannot say that the testimony developed such fraudulent circumstances as would override the general presumption in favor of fair dealing.

The same presumptions are indulged in favor of the judgment of the court on questions of fact, which obtain in support of the verdict of a jury; and as the determination of the question of fraud is one peculiarly within the province of a jury, we would not, irrespective of the question of want of notice of said alleged fraud on the part of the defendant, under repeated decisions of this court, feel author*383ized to disturb the verdict. (Jordan v. Brophy, 41 Tex., 284; Briscoe v. Bronaugh, 1 Tex., 340.)

The testimony, however, is positive that the defendant neither at the date of his first nor second purchase had notice of the alleged fraud, if any in fact existed; and the testimony, in our opinion, does not disclose such facts and circumstances as would put an ordinarily prudent man upon such inquiry as would amount to notice.

The principle is well settled that a bona-fide purchaser of a legal title is not affected by any latent equity founded on trust, fraud, or otherwise, of which he had not notice, actual or constructive.

There being no error in the judgment apparent of record, the same is accordingly affirmed.

Affirmed.