Robinson v. Martel

11 Tex. 149 | Tex. | 1853

Lipscomb, J.

The first error is, to the, overruling the motion for continuance, made by the appellant, in the Court below. The affidavit on which the motion was supported, was made by the attorney of the party ; and he does not show any reason why it was not made by the defendant himself. Where a party is absent from the country, and his attorney takes it upon himself, to have witnesses subpoanaed, and is advised of the materiality of their evidence, there could be no objection to an affidavit for a continuance being made by the attorney, or any other person acting for the party. The attorney may know the importance of the evidence of an absent witness ; but unless the party himself is absent from the country, he could not know but the witness may have been absent by the consent or procurement of the party. He swears that a subpoena was placed in the hands of the Sheriff; but shows no further diligence. This showing would not have authorized a continuance, if it had been made by the party himself; and if made by an attorney or agent, it should be more specific, so as to remove all presumption that the party himself was not in a condition to have caused the absence of the witness. If such an affidavit could be considered as sufficient, a party could at all times obtain such continuance, by giving the witness leave to be absent, and leaving it to the attorney to swear for the continuance, who would know nothing of such manoeuvring on the part of the client. We believe the showing for a continuance was insufficient, and that the Court did not err in overruling it.

The next error assigned, is the admission of a power of attorney, from Fred Martel to Henry Martel to act as his attorney in fact during the absence of Fred Martel in Califor: nia. It is not perceived upon what grounds this objection was made. The record shows no evidence that the power of attorney had been filed and notice given to the opposite party of an intention to use it as evidence; nor is it believed to have been necessary, where the original was introduced and proven, and not a certified copy from the office of the County Court Clerk. (Art. 745, Hart. Dig.)

The appellant assigns for error, the refusal of the Court below, to permit him to read in evidence a bill of sale from Glustavus Martel, administrator pro tem, to him, the appellant, for the negro slave sued for.

The Court did not err in rejecting this evidence. It was trifling with the Court, to offer it. An administrator pro tem had no right to sell, and could give no title, unless the sale was made under an order of the Probate Court.

All the other assignments can be considered together. The defendant in the Court below, wished to introduce proof that the bill of sale from Henry Martel to Fred Martel was without any consideration, and fraudulent, and collusive, between the parties. In considering the correctness of the decision of the Court below, refusing to receive the evidence offered to be introduced by the appellant, it is necessary to refer to the answer of the defendant, or as much of it as is material to this inquiry. It is as follows, i. e.: “ He further alleges that the bill of sale, 66 by virtue of which plaintiff claims the said negro, was given “ for no consideration, and therefore wholly null and void, “ and was so considered by Henry and Fred Martel; that the “ negro remained in possession of the said Henry Martel, “ until sold and delivered to defendant.” There seems to be two objections to the reception of the evidence offered. In the first place, there is no allegation in the answer, that there was any fraud or collusion between the parties to the bill of sale; and the evidence, offered, might well have been excluded on that ground, alone. But it seems that there is another more substantial objection to the evidence. We must take it as a naked proposition, for so it is presented in the bill of exceptions—an ofier to introduce evidence to show that the bill of sale from 66 Henry Martel, to Fred Martel, was without consideration, fraudulent and collusive between the parties.” How the consideration, or the intention of the parties as between themselves, as an abstract proposition, showing no injury to the party now urging it, could be received as at all material, is difficult to conceive; and it may have been rejected upon this ground. And that it was, is probable, from the fact that considerable latitude was allowed in the introduction of evidence to show how far an innocent purchaser was deceived by the conduct of the plaintiif’s intestate, Fred Martel, and showing who had the possession of the property sold.

But, admitting the sale to have been without consideration and fraudulent and collusive between the parties themselves, after it has been executed, it is not every one that can set up its nullity, for these vices. The law, for reasons of sound policy, has well defined what persons can set up and show the fraud of a transaction, that, if not impeached for such vices, might interfere with and defeat legal rights. A previous creditor has a right to impeach the consideration; so has a subsequent creditor or purchaser without notice. If one, without notice of the previous sale, purchases from the vendor, for a valuable consideration, he can set up the vices of the former sale; and one who being deceived by the appearance of ownership still remaining in the vendor, after the first sale, such as possession or acts of ownership, credits the original vendor, may impeach the first sale. But the vendor cannot; nor can any person claiming through him, affected with notice, even if he is a purchaser for a valuable consideration. The rule that a fraudulent vendor shall not be permitted to claim any advantage from, or to set up his own fraud to avoid his own acts however fraudulent, is founded in the soundest wisdom. (See Danzey v. Smith, 4 Tex. R. 411.)

The appellant moved, in the Court below, for a new trial, on various grounds; the most material are, forced into trial in the absence of the appellant, himself; in 'the absence of material witnesses; the discovery of other witnesses. There is nothing from which it is a reasonable inference, that the verdiet would have been different, had the absent witnesses and the newly discovered testimony all been before the jury ; because, as appears from the showing for a new trial, the evidence all would have gone to the same point, that the bill of sale from Henry Martel to Fred Martel, the intestate, was without any consideration; which could not have changed the result. The statement of facts most fully sustains the verdict of the jury. It is shown that the bill of sale, made and executed to Fred Martel, the deceased, for the negro boy sued for, was duly recorded in the proper office, more than twelve months before the purchase and bill of sale relied upon by the appellant. It is fully shown, and by one of the defendant’s own witnesses, that, after the sale made by Henry Martel to Fred Martel, the former never did claim the negro as his own. It is in proof, that the only time when the negro in question was under the control of Henry Martel, after the date of the sale to the intestate, Fred, was while the latter was gone to California, and the former was acting as his attorney in fact, under power duly recorded. It was proved that appellant forcibly took the slave from the possession of the administrator of Fred Martel.

The value of the slave, and of his services, all these facts so fully sustain the verdict of the jury, that the Court below would not have been authorized to set aside their verdict. On the whole case, we can perceive no ground for reversing the judgment, and it is affirmed.

Judgment affirmed.