19 Tex. 58 | Tex. | 1857
This is a suit for the trial of the right oi property under the Statute, to ten bales of cotton levied on by the Sheriff of Cass county as the property of James D. <, Willison, to satisfy an execution in favor of Thomas Gamage ; the cotton being claimed by Trawick & Hendrick.
The facts show that defendants claim under a purchase from Willison of the crop of' cotton, he selling it as his children’s crop, to be delivered at Jackson’s gin, and that in pursuance of said purchase the cotton was delivered and purchase money paid previous to the levy of the execution.
On the part of plaintiffs it is contended that the cotton was liable to the execution, because,
1st. The cotton belonged to Willison, at the time of the levy, it not having been delivered so as to pass the title.
2nd. If the cotton belonged to Willison’s children it was incumbent on claimants to show that fact, and also the right of Willison to sell it as their guardian under an order of the County CourJ, in both of which they had failed.
3rd. That as to this debt the transfer of the land and negroes which produced this crop by Willison and his wife to his children was fraudulent, the debt being contracted previous to the execution of the deed.
There were a verdict and judgment for the claimants, and a motion for a new trial which was overruled.
The plaintiffs assign as error :
1st. Overruling the motion for new trial.
2nd. Overruling their exceptions to the admission of the testimony of Rogers & Willison.
4th. Refusing to charge the jury.as requested by plaintiffs below.
Considering the facts established in evidence all the matters involved in these assignments except the last, it will be seen, converge to the single question—In whose possession was the cotton when levied on by the Sheriff—in Willison’s or in Trawick & Hendrick’s ?
That fact is contested in the pleadings, and hence neither party assumes the burthen of proof. The evidence shows that the cotton at the time of the levy was at Jackson’s, gin. It was shown by the testimony of Thomas Rpgers, that a contract was entered into three or four months before the levy between Willison and claimants, for the crop of cotton, to be delivered at Jackson’s (or Wilson’s) gin. It was áhown by the testimony of Willison, that pursuant to the contract of sale this cotton was delivered by him at Jackson’s gin for claimants, and the purchase money received by him previous to the levy. All the evidence proceeds on the idea, undisputed, that before the contract of sale, Willison had possession and control of the cotton. This state of the case fully meets the charge of the Court which was, that, “ If the jury believe “ from the evidence, that the cotton was sold to (Trawick, and1 “ delivered before the execution was levied on it, they will “ find for the claimant; a delivery to the warehouse-keeper “ for the claimant would be a delivery to claimant.” This fixes the possession of the cotton in claimants at the time of the levy, if it belonged' to Willison originally, as contended for by the plaintiffs. It rested on plaintiffs then to show, not that the claimants held possession by a defective title from Willison’s children or any other third person, but that they held possession derived from Willison under such circumstances as to render it Willison’s property, so far as this exe
It is only necessary to review the proceedings on the trial to perceive that it was on this basis mainly, that the plaintiffs litigated this cause.
Both of the witnesses, Rogers and Willison, stated that in making the sale, Willison professed to be acting for his children. The plaintiffs objected to the whole of their evidence, because “ no order of guardian’s Court authorizing said sale “ or confirmation thereof was produced in proof to the jury.” The Court did not err in overruling this objection, for if the jury should believe from the evidence, that claimants had possession at the time of the levy, which they well might do, then whether or not they had got it from Willison’s children by a legal transfer, was as to this trial an immaterial question.
. Plaintiffs asked the Court to charge the jury “ that the i burden of proof is on the claimant Trawick, and if Trawick ‘‘ has failed to prove by legal and competent evidence to the “ satisfaction of the jury, that he was therowner of the cotton “ levied on, the plaintiff in execution is entitled as against “ Trawick to a verdict. And further that if the title to the “ cotton is or was in Willison’s children, the jury cannot in i‘ this trial consider of that fact to find a verdict for Trawick, ‘‘ unless they further find that Trawick became the owner of ‘‘ said cotton by purchase from the guardian, in the manner “ prescribed by Statute.” The Court did not err in refusing this charge ; because it presupposes a fact which the Court
The plaintiffs offered in evidence the recorded copy of the deed from Willison and his wife to his children, as filed in the office of the County Clerk of Cass County. The deed itself, after being proved, would have been proper evidence for plaintiffs to establish in connection with other testimony that for this debt, being older than the deed, the cotton was liable. The evidence offered was secondary. It reasonably appears from the record, though not by express statement, that it was objected to on that ground. The record states “ that it was overruled for the reason that no transcript “ thereof had been filed among the papers of the case for three “ days previous to the trial.” A similar reference to an exception in the record has been held sufficient to authorize this Court to entertain it. (Cheatham v. Riddle, 8 Tex. R. 166.) Such exception being taken the Court was bound to sustain it. (Hart. Dig. Art. 745.)
The motion for a new trial embraced one other ground not yet considered : that the verdict is contrary to the law and evidence.
The leading facts in evidence have already been stated ; the contract of sale of the crop of cotton was made, it was to be delivered at Jackson’s gin when picked, it was so delivered and Willison received the price of it before the levy. In all this Willison professed to act for his children, and, as he stated, applied the proceeds thereof to their use. There is no evidence that anything remained to be done with the cotton ; the terms of the contract, so far as they have been developed, had been fulfilled, and the possession and title had passed to claimants, if the cotton originally belonged to Willison. (Story on Sales, Sec. 298.) If the cotton belonged to his children he had converted it by the sale ; of which no one but the children could complain, so as to defeat claimants’
The verdict must clearly appear to be wrong, to induce this Court to set it aside. • (Long. v. Steiger, 8 Tex. R. 462.)
Judgment affirmed.