Neale v. Sears

| Tex. | Jan 15, 1868

Morrill, G. J.

—The controversy in this case is respecting the ownership of two billiard tables.

The appellee and one White, as partners, owned a billiard saloon, and on the 24th day of November, 1866, the partnership was dissolved, and notice thereof was published in the public papers, as follows:

“The partnership heretofore existing between David White and Stephen W. Sears is hereby dissolved from this date by mutual consent. Mr. White.will continue the business at the old stand.

“ Stephen W. Sears.

“David White.

“ Brownsville, Texas, November 24,1866.”

In the same paper, and the subsequent issue appeared the following advertisement:

“El Dorado saloon, formerly known as the White House, on Elizabeth street, between 13th and 14th streets. The proprietors of that well-known establishment recommend themselves to the public and their numerous friends by their choice liquors, fine billiard tables, and all the appurtenances of a first-rate establishment. David White.”

At the time of this dissolution it appears that Sears, one of the partners, became the sole owner of the two billiard tables in controversy, but which he permitted White to retain in the El Dorado saloon, and to advertise as if the whole establishment, including the tables, was the property of White; that White continued as the sole proprietor of the saloon, including the tables, contracted debts, and on the 4th December, 1866, one Q-. M. Wells, with said White, executed their note in favor of the plaintiff in error, Neale, for the sum of $600, and White gave a deed of trust on the billiard tables to secure the payment of the note, and that thedfilliard tables were sold agreeably to the stipulations of the trust deed, and purchased by the beneficiary, Neale.

The case was submitted to the judge without a jury, and the judge found the facts substantially as herein stated, but gave a judgment in favor of Sears.

From all we can perceive we consider that Sears was in reality the owner of the property, but placed the same in the possession of White, who publicly proclaimed himself the owner, or what was equivalent.

Neale, seeing White in possession of the tables, and seeing nothing on the records of the county contradicting this presumed and publicly avowed ownership, loaned money to White, secured by the two billiard tables.

The statutes, [Paschal’s Digest, Art. 3876,] being the 2d section of the act to prevent frauds and fraudulent conveyances; also article 4993, respecting registration; the case of Davis v. Loftin, 6 Tex., 499; Twine’s Case and the notes and authorities added thereto in Smith’s Leading Cases, are conclusive on the point at issue in this case.

We do not attribute fraud to Sears; on the contrary, as far as we can judge from the record, his motives were influenced by kindness toward White, and the case might more properly come into the class where one of two innocent persons must suffer; and it is a well-established rule that he who trusts most must suffer most. (Story’s Eq., §§ 105,108, 165, 381, 434.)

Because Sears tacitly assented to the assumed ownership of the property by White, and thereby induced Heale to loan money to White upon the security furnished by this property, he is legally and equitably precluded from asserting his ownership to the detriment of ifeale, who appears an innocent purchaser. The case will be reversed and

Remanded.