27 Tex. 407 | Tex. | 1864
It would be an unprofitable task to attempt a dis cussion of the numerous questions which have been raised by counsel during the progress of this case, by exceptions to the ruling of the court in admitting and excluding evidence, in submitting and withholding special issues, in giving and refusing instructions, in overruling motion for new trial, &c. This motion alone presents forty distinct assignments in its support, some of which include a number of sub-divisions. And all of these points are embodied, and to some extent enlarged by the assignment of errors. To canvass a comparatively small part of the grounds that are, therefore, within the assignment of errors, would eviently prove an unprofitable consumption of time, and tend to the confusion rather than the elucidation of the law of the case. Without, therefore, adverting to the manner or order in which the questions are presented by counsel for the appellants, we will dis
Leonora Lewis, one of the appellants in this court, and a defendant in the District Court, claims the negro now in controversy, under a conveyance for a number of negroes, executed in the-county of Harris, in the early part of the year 1840, by her father, Warren J. Hill, to her cousin, George R. Carradine. This deed was never recorded, but at and previous to the date of its execution, Carradine was. in the possession of the property embraced in it, under a contract of hiring between himself and Hill-On the 28th of March, 1840, Carradine, at the instance of Hill, executed deeds of gift for the negroes conveyed to him, as aforesaid, to Hill’s children. One of these deeds of gift was made to Leonora Lewis, then Leonora Hill, a child about twelve years old, residing with her father. This deed was delivered, together with the negroes embraced in it, by Carradine- to Hill, as he states in his deposition, for Leonora. And the deed was in a short time thereafter duly recorded in said Harris county. Shortly after-wards, and in the year 1840, Hill removed to Fayette county, bringing with him the negroes embraced in said deed, one of whom was the ancestress of the negro here in controversy, who was bom in 1841 or 1842, and has continued in Hull’s possession from that time-until shortly before- the commencement of the present suit, when he was purchased by Castleman, the appellee here and plaintiff below. But whether he was at that time in Hill’s possession is not clearly shown. It is .shown, however, that after his purchase, Castleman had possession of the negro for a part of a day, while one of the witnesses for appellants states positively that the negro was in, their possession on the day that Castleman alleges he purchased. Mrs. Lewis continued to reside with her father from the date of the deed of gift from Carradine until her marriage, the date of which is not definitely fixed, but it could only have been a short time before the commencement of this suit. The conveyance, under which Mrs. Lewis claims, was never recorded in Fayette county, but there is much testimony tending to show the notoriety of her title in the community where the parties lived, and that if
The appellee maintains that Mrs. Lewis’ title is made void as against purchasers from Hill, by the statute of frauds. His counsel insists that each of the three clauses of the second section of the statute applies to it and precludes her from denying his right of recovery. We will consider the application of these different clauses of this section of the statute of frauds in the .reverse order from that in which they are found in the statute. The last clause declares void, loans, limitations, reservations and remainders of personal property as to purchasers from the party in possession for three years, without demand made and pursued by due process of law, unless proved by instruments in writing duly recorded, &c. Oarradine says in his deposition: “ It never was his (Hill’s) design,' I think, to divest himself of the negroes during his lifetime. He intended securing them through his children from his creditors, but to have the enjoyment of their services while he lived, and at his death for them to be vested in his children.” As we understand counsel, they intend upon this branch of the case, to insist that this evidence shows that Hill was entitled to the immediate possession of the property as a life estate, loan or use, with a remainder to Leonora, and the title of record to her not showing this, the reservation or remainder in her favor is cut off
It is also said Mrs. Lewis’ title is fraudulent within the second clause of the statute. This clause, like the one we have just been •considering, applies as well to bona fide, as intentionally fraudu
We conclude, therefore, that the first clause of the second section of the statute of frauds is the only part of this law applicable to this case. The testimony in the record leaves no room for doubt, that the conveyances by which Mrs. Lewis claims her title were made and intended, by the grantors, for the purpose of delaying and defrauding Hill’s creditors; and that they are, therefore, void as to subsequent purchasers from him without actual or constructive notice of Mrs. Lewis’ title. The deed to her was not recorded in Fayette county, and it can not therefore be.said that Castleman was chargeable with record notice. And although, as we have said, the delivery of the negroes, together with the deed of gift by Carradine to Hill, vested the possession in accordance with the title, in legal contemplation, in Mrs. Lewis; yet, as the negroes were in the control and used by Hill in apparent right of ownership, third parties were not chargeable, by reason of the possession which she thus acquired through her father, with notice of her title. Was it, then, brought home to Castleman, by proof of actual knowledge on his part, or by the proof of such facts as must induce the belief that any ordinary prudent man, with his opportunities of information, must have known, before making the purchase of the negro, of her title? From the testimony, it is difficult to realize that Castleman was not fully informed, at the time he purchased the negro, of the situation of the title and the nature of Hill’s possession. The facts seem to have been matter of general notoriety in the community. Hill is a man who, evidently, often resorts to shifts to raise money. From Castleman’s statement he had previously loaned him money, and had taken a lien upon other property to secure it. Dealing with such a man, it is hardly probable that he failed to enquire and inform himself as to the nature of his security, and the character of the title of his vendor. On the day after his purchase, he wished to demand
Under the facts presented in the record, it is not perceived that the statute of limitations could have any application to the case. The possession of the father was in a fiduciary character for his daughter. There must have been proof of distinct and unequivocal repudiation of her title, brought home to her, before the statute of limitation would commence to run. We see nothing in the record tending to show that such was the fact. Certainly there is no ground to infer an adversary possession of the negroes while his daughter was a member of his family, which she continued to be until her marriage. This, from the testimony, could not have been as much as two years before the bringing of the suit; and it is not ascertained by the verdict, in whose possession the negro was subsequent to January 26th, 1854, three years before the commencement of the suit.
The letter signed “Leonora,” upon which Oastleman relies as an estoppel of Mrs. Lewis’ right to claim the negro, is wholly insufficient for this purpose. An estoppel, it is said, must be mutual: there is and can be nothing of this sort here, or between these parties. The act constituting an estoppel in pais must have
The judgment is reversed and the cause remanded.
Reversed and remanded.