74 F. 698 | 5th Cir. | 1896
This is a statutory action for trial of tbe right to personal property taken under judicial process. Tbe defendant in error, tbe Parlin & Orendorff Company, held a judgment against Acanthus Hinehman and others, on which execution issued and was levied on tbe personal property in question. When tbe marshal bad made tbe seizure, tbe claimant, Martha A. Hinch-man, made her affidavit and bond under tbe statute, tbe property was surrendered to her, due return made of the affidavit and bond, and this cause docketed for trial. Tbe plaintiff in tbe execution (tbe defendant in error here) tendered issues, showing its judgment, the execution issued thereon, tbe levy on tbe property in the possession and control of Acanthus Hinehman, one of tbe defendants in tbe execution, and averring that tbe property was owned by Acanthus Hinehman, was subject to tbe execution, and was of tbe value of $3,000. Before tbe trial, tbe claimant died testate. Acanthus Hinehman, named executor in her will, qualified as such executor, and replied to tbe issues tendered that tbe claimant was not liable for tbe plaintiff’s judgment; that tbe property seized was not of tbe value of more than $2,326; that tbe property was a part of tbe sep
“For and In consideration of sixteen thousand dollars, to me in hand paid by my wife, Mattie A. Hinchman, said sum being the estimated value of the property hereinafter described, and which sum is a credit in my favor upon a balance of twenty-six thousand seven hundred and six dollars, which 1 owe my wife for property and money belonging to her separate estate, which I have heretofore used in my business, and for which, to the extent of The value of Hie property hereby conveyed, I now reimburse and pay her, leaving due her, after deducting payments already made, the sum of fourteen hundred and twenty-six dollars, have granted, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said Mattie A. Hinchman, to be held, owned, possessed, and disposed of by her as her sole and separate property and estate, all that piece or parcel of land situated, lying, and being in the county of McLennan, state of Texas, city of Waco, 'and described as follows.”
On February 28, 3890, by deed duly acknowledged on the following day and recorded in the deed records of McLennan county, Slat-tie A. Hinchman and her husband, A. Hinchman, conveyed the Waco business lot to Sanford Johnson, reciting a cash consideration of $0,750, and the further sum of, SO,025, due in one year front date, and a like sum due in two years from date, with 8 per cent, per annum interest thereon, as shown by two notes made by Johnson, payable to the order oí M. A. Hinchman, and secured by vendor’s lien on the property. There was proof tending to show that some of the personal property seized was purchased for M. A. Hinchman with the proceeds of the sale to Sanford Johnson. It was shown that on the 24th day of November, .1887, for a recited “consideration of $4,000, said sum being a part of her separate estate which I have used in my business, for which I now reimburse; her, have granted, sold, and conveyed to said Mattie A. Hinchman, to he owned, used, and disposed of by her as her sole and separate estate and property, two cer
On the trial, while A. Hinchman was on the stand as a witness for the claimant, he was asked “if he knew whose money paid for the property seized,” and “if he knew from what source the money was received which paid for it.” Plaintiff’s counsel objected to this question, and to the evidence which it was designed to elicit, for the reason that it involved a transaction between the witness and the deceased, M. A. Hinchman, and that the witness had not been called to testify concerning the same by the plaintiff; and the court excluded the testimony on the ground that the witness, through all the transactions, was acting as agent for the claimant, and that the proposed testimony involved transactions between the witness and the claimant, and hence could not be introduced. Claimant attempted to make similar proof in reference specially to the mules seized, which was objected to on the ground that it involved a transaction between the witness and the claimant for which the plaintiff had not called him to testify. “The court was of opinion that the matter involved a transaction with the deceased, which the statute forbids, and the plaintiff’s objection to the evidence Avas sustained.” The claimant offered to prove by Louis A. Hinchman that the money paid for the sheep in controversy was derived from the sale to Johnson of the business homestead lots in Waco. Plaintiff objected to this proof on the ground that claimant had shown no title in herself to that Waco property as a part of her separate estate; that claimant had not shown that her husband owed her any sum whatever; that the different conveyances to her showed that they were made for the purpose of defrauding the creditors of A. Hinchman, and that no gift of exempt property bad been pleaded. The court sustained the plaintiff’s objection to the testimony. The proof was conflicting as to the value of the property surrendered to the claimant. When the
Acanthus Hinchman, having become a party to the suit as executor of the deceased claimant for or against whom judgment would be rendered, could not be allowed to testily against the adverse party as to any transaction had with the testatrix, unless called by the opposite party, or required to testify thereto by the court. Rev. Bt. XI. S. § 858. We do not clearly perceive how the trial judge reached the conclusion that the matters about which it was proposed to examine A. Hinchman were transactions with the deceased testatrix. Is not a witness, alihcugh, as legal representative, a party to the suit, competent to testily about incidents occurring with third parties for the benefit of the deceased? It does not appear that Mrs. Hinch-man, if she had been in life, could have been herself a witness, whose testimony might have conflicted with Hinchman. If he had been offered to testify against her interest in a matter she might, if alive, have contradicted, or to a transaction between her and the plaintiff', the reason of the rule might have excluded him. To apply the statute as the circuit court has done in this case would take us beyond the reason of the law. Besides, the plaintiff had examined this witness as to the execution of bis deed of November 2Ü, 1887, to the lands in Limestone county, and also Ms deed of September 5, 1888, for the Pancake or Neill’s Creek ranch in Hamilton county, and had offered these deeds in evidence, with their recitations as to the consideration; and it is not so clear that, having been called by the plaintiff to testify at all as to the execution of these deeds thus pul; in evidence against him, he should not have been allowed to speak fully as to flu* considera tion. We are of opinion that the court erred in giving the general charge to the jury to And for the plaintiff. The deeds from Acanthus Hinchman to his wife, which were offered in evidence, are not manifestly fraudulent. Each, taken on its face, shows a good, a valuable, and an adequate consideration, and each is effective to convey the estate it purports to convey if its language speaks the truth as to its consideration and purpose. The inference of fact to he drawn from the time when each was made, and from other proof touching the'condition of the grantor’s business, whatever may he its force, is certainly within the province of the jury to determine. While such transactions between husband and