Hines v. Perry, 25 Tex. 443

Hines v. Perry

25 Tex. 443 | Tex. | 1860

Bell, J.

We are of opinion that there is error in the charge of the court to the jury, for which the judgment must be reversed. The main question in the case is, whether or not the appellee, at the time he purchased the negro man in controversy from Sherrod Hines, had notice that Hines held the negro in trust for his children. Our registration act, which was in force at the time of the sale by Hines to Perry, provides that “ all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved, and lodged with the clerk, to be recorded according to the provisions of this act; but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall, nevertheless, be valid and binding.” The deed of trust under which Sherrod Hines held the slave in controversy, had never been recorded or lodged with the clerk for record; but the plaintiff, in the court below, attempted to show that Perry purchased the negro under such circumstances that the law will hold him affected with notice of the trust in favor of the children of his vendor. *452In the brief of the counsel for the appellee, it is contended that there is no evidence tendingrio show that the appellee had any notice whatever of the trus't, or knowledge of any fact which could put him on inquiry; and it is said that the negro himself could not convey any information to the' purchaser of which. the law will take notice. We cannot admit the soundness of this proposition. The law does not treat- a slave as property merely, and incapable of doing any act which will affect others. The law recognizes a slave as competent to act as the agent of his master, and to bind his master by his act done as his agent. The law also recognizes slaves as competent witnesses against each other, and will acquit of crime, or punish upon their testimony. A court of equity, therefore, in inquiring into a question of notice, could not treat as amounting to nothing a clear and unambiguous notice of a fact communicated by a slave. We do not propose to express any opinion upon the sufficiency of the notice which is shown in the case; but we think it was such as was entitled to be considered bjí.the jury under proper instructions from the court.

The subject of notice, in cases like the present, is one which abounds in difficulties in the practical administration of the law. So much must necessarily depend upon the peculiar circumstances of each case, and upon the evidences of good or bad faith on the part of the purchaser, that it is impossible to frame any general rule, or so to prescribe a rule and' its exceptions, as to relieve the subject of its embarrassment. Judge Story has well remarked that the question of notice resolves itself sometimes into matter of fact, and sometimes into matter of law. 1 Story’s Com. on Eq. Jurisp., § 399.) “ It is a well established principle,” says Spence, (2d volume of his Eq. Jurisp., 756,) “that whatever is notice enough to excite attention and put the party on his guard, and call for inquiry, is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of the investigation.” A party will sometimes be-charged with notice because of negligence in not making proper inquiry; and Mr. Spence defines negligence to be, in the legal sense of the term, “ a disregard of some fact known to a purchaser, which at least indicatéd the existence of that fact, notice of which *453the court imputes to a purchaser.” These general rules indicate the principles upon which courts proceed in their inquiries on the subject of notice. They may furnish an easy solution of the question of notice in some cases, but in others they will aid but little, because, as Judge Story has said, “ there will be found almost infinite gradations of presumption between vague and indeterminate rumor or suspicion, and that certainty as to facts, which no mind could hesitate to pronounce enough to call for further inquiry, and to put the party upon his diligence.”

The most that can be done in our practice, is to refer the question of cnotice, where it resolves itself into matter of fact, to the jury, with such general instructions as can be made most applicable to the particular case. In the case before us, the jury seem to have returned into court, after their first retirement, and asked further instructions, and the judge then told them that “ the information necessary to constitute notice, must point out the records or persons from whom the title to the negro could be ascertained, or it will not be sufficient to constitute notice.” We think this rule is more stringent than is warranted by the general course of decision on the subject of notice.

There appears to have been some controversy in the court below about the execution of the trust deed, but the statement of facts says that the execution of-the deed was proved, and a copy of the deed is given. There also appears in the transcript, as a part of the statement of facts, the answers of Hiram Hines to interrogatories propounded to him as a subscribing witness to the trust deed, when in fact he was not a subscribing witness.

The judgment is reversed and the cause remanded.

Reversed and remanded.