Lewis v. Castleman , 27 Tex. 407 ( 1864 )

Moore, J.

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 dispose of it by a presentation of our views of the law applicable to-the facts exhibited by the record, and by which its determination should be controlled.

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 must have been known to Castleman, who for a number of years had resided from four to eight miles from Hill. It was shown, however, that Hill managed and controlled the property as if it were his own, and enjoyed the use and benefit of it, though he often and repeatedly disclaimed owning any negroes, and admitted his daughter’s title. Yet it is also shown, that sometimes when he wished to purchase property he would claim that the negroes in his possession belonged to him. Mrs. Lewis was, at the date of her marriage, some twenty-eight or thirty years of age, and the appellee contends that if she ever acquired title by the deeds from Hill and Oarradine, she had lost it by limitation; also, that she was estopped by a letter written by her to Mrs. Eliza S. Hill from disputing her father's title. The deed to Oarradine, and that from him to Mrs. Lewis were conclusively shown by the testimony of Oarradine to have been a fraudulent contrivance on the part of Hill to defraud his creditors.

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 by this clause of the statute. Without at present pausing to inquire whether parol testimony is admissible for the purpose of thus varying and contradicting the legal effect of written instruments, or if admissible for this purpose, whether the mere impressions of a witness, as in this instance, can be received and permitted to have this effect, we have no hesitation in saying that the conveyances in question, taken in connection with Carradine’s testimony, present a case clearly within the first clause of this section of the statute of frauds, and within the third. Conveyances in fraud of creditors or purchasers are, as to the parties intended to be defrauded, pronounced void by the first clause, but as between the parties themselves they are valid. The law makes the conveyance void in favor of those who should be protected against it, but it does not permit the vendor at his own option, to avoid the effect of his fraudulent act. That a vendor intends by his conveyance to secure the use and enjoyment of his properly, is the usual incident of such transactions. That this was the object and purpose of its execution, places him in no better position than if it were for any other cause held fraudulent, which would evidently be the case, if the third instead of the first clause of the statute is held applicable to the transaction. Of course we do not mean to be understood as intimating that the title of the fraudulent vendee may not as readily as that of any other owner, be lost by this third clause, if he permits the title and the possesr•sion to become separated as therein prohibited. We simply say that the secret intention of a father in executing a conveyance, in fraud of his creditors, to a minor daughter residing with him, to retain the use and enjoyment of the property, does not present such a case. If, since Mrs. Lewis arrived at an age to affect by her acts her title to the property, she has in contemplation of law parted with the possession for the time indicated in the law, it must be held applicable to her. The law applicable to the question of possession will be adverted to in connection with another branch of the case, and we therefore at present pass it by.

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 fraudulent conveyances. No matter what may be the object or purpose' of their execution, if not upon consideration deemed valuable in law, unless evidenced by writing proved and recorded, or the possession ' really and bona fide remain with the title, such conveyances will not be upheld or sustained. But if the donee remain in possession, or the instrument is duly recorded, it will be enforced, if in other respects valid, without questioning the purpose-of its execution. It would seem to follow that when, tested by the character and purpose of the conveyance, the situation and nature-of the property and parties, the possession as between the grantor and grantee has passed and become vested in the grantee, the instrument must be regarded as complete and perfect. Aside, then, from the fact that the law holds fraudulent conveyances effectual and valid between' parties and privies, Oarradine being in possession of the negroes when he accepted the deed from Hill, it can not be said that it is inoperative for the omission to record it, or the failure to deliver the property to him. The deed from Oarradine to Mrs. Lewis was not only recorded, but was also accompanied by a proper delivery of possession of the property, and certainly as between the donor and donee in this last instrument, was fully sufficient to divest him of title. It has never been questioned that the delivery to the father for his minor child residing with him, is sufficient to support a parol gift from a stranger-.. And in Alabama, in a case between a son, who resided with the father at and subsequent to the alleged gift, and a subsequent purchaser from the father for full consideration without notice, the court says: “ But assuming the delivery to have been made to the plaintiff, or some one else for him, we are of the opinion that the possession of the donor, under the circumstances, could not invalidate the gift.” (Sewell v. Gidden, 2 Ala., 60.) And in Kentucky, it is said, “ that where a gift is made to an infant,, and the father takes possession, he holds as the natural guardian, of the child, and the possession must he considered the possession, of the child; and consequently the property is not liable to the father’s debts.” (Blair v. Dade, 9 B. Mon., 63.) It may be insisted, however, that as the conveyance to Oarradine was fraudulent, it can not be said, that his possession was such as is required by the statute. We do not understand the statute, in requiring that possession must really and bona fide remain with the donee, to have any reference to the good or bad faith of the title with which it must really and bona fide remain. If the conveyance is fraudulent, the proper parties are protected against it by the first clause of the same section of the law. But this clause was intended to protect the owners of property, as well as persons claiming under them, against pretended and imperfect gifts and conveyances not on valuable consideration, by declaring fraudulent all such as are not evidenced either by an instrument in writing, properly recorded, or by the actual delivery and continuance of possession. The record of the instrument is tantamount to the retention of possession; the retention of possession is tantamount to the record. The force and effect of neither is impaired or controlled by the purpose of the instrument in testing its sufficiency in this particular. That the party must bona fide remain in possession, was to guard against pretended deliveries. If it were conceded that the conveyances from Hill to Carradine, and from the latter to Mrs. Lewis, were executed at the same time, and are to be viewed as part and parcel of the same transaction, it must be admitted under the authority of the cases from Alabama and Kentucky, to which we have referred, that the delivery of the property and subsequent retention of possession by Hill, vests the property and possession in Mrs. Lewis, unless the fraudulent purpose of the conveyances will change the principle otherwise applicable to the case. Were it true, however, that the court will look beyond the legal purport of the conveyances as expressed in the deed, and seeing that they are for a fraudulent purpose, will say that the rule which would otherwise apply, is not applicable here, it surely would not hear such a suggestion from the fraudulent vendor. To do so, would be to permit him to avoid his deed by proof of his own fraudulent intent. Neither could his vendees, with notice, occupy a better position, for in this State it is settled that they acquire no title. (Fowler v. Stoneum, 11 Tex., 478; Robinson v. Martel, 11 Tex., 149.) And if it is insisted that appellee is a purchaser without notice, and therefore the presumption should be indulged in his favor, that the possession was not bona fide, we answer, if such is his status, the contest as to the applicability of this clause of the statute to his case, is a barren one, for he is fully protected by the preceding clause, and to bring this one to his aid would wrest it from the purpose for which, it was enacted, and tend to unnecessary confusion in its construction.

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 the negro of Mrs Lewis, after her husband had refused to deliver him. He must have then known of her claim. When the negro ran away from him, he knew immediately where he had gone. And if he saw the letter to Mrs. Eliza S. Hill previous to his purchase, which, however, is hardly probable, this, of itself, informed him that the title of the negro, if one of those referred to in the letter, was not in Hill; for, it is evident, if the negroes were so situated that they could not be taken from him, it must have been for the reason that the title was not in him. It was necessary, however, for Oastleman to have shown that he was a purchaser for value: but we find no testimony in the record to sustain the verdict of the jury in this particular; and if it can be upheld on the question of notice, a new trial should, for this reason, have been granted. Before leaving this branch of the case, we will say that the instructions given to the jury, upon the subject of notice, and in respect to the payment of the consideration for the purchase, is believed to be correct. It presents the law applicable to the questions in a clear and perspicuous manner.

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 been acted upon—there was not the slightest evidence to show that such was the fact; on the contrary, the presumption arising from the contents of the letter, in connection with some of the testimony, is, that it was not written until after the commencement of" the present suit. Nor will the contents of this letter, if it is admitted that it has reference to the negroes conveyed to Mrs. Lewis by the deed from Carradine, and had been seen by Castle-man before his purchase, authorize the conclusion that she was thereby estopped from asserting her title, or had relinquished her claim to the negroes. What does the whole letter import when scanned most stringently against Mrs. Lewis ? Simply that she had the legal right to the negroes referred to, though the moral right to them was in her father, and that she did not intend to assert her legal title to them against him. The asseverations that she will not rob him; that as the property stands, no one can take the negroes from him, and that she will not, clearly imply that she could do so if she were willing to violate her sense of moral propriety, and filial duty. If she has reference to these negroes, the evident meaning of the letter is, that she knows the secret and fraudulent purpose for the accomplishment of which the negroes were conveyed to her, and that she recognizes it as morally-binding upon her; but this imports no legal obligation that can be enforced by her father, or any one purchasing from him with knowledge of the facts. Nor is it a fair inference from the letter, that she contemplated a surrender of the title which she holds to the property. It seems rather that she intends to hold it, to enable him to enjoy the use of it; and in her view, as an affectionate daughter, it may have been as necessary to preserve the property against future debts or sales, as against pre-existing liabilities. At least, a purchaser, if informed, as he must have been if he saw the letter, that the legal title of the negro was in her, can claim to stand in no better attitude than his vendor. Nor can the letter be relied upon as a relinquishment of her title, for want of a consideration to support it as such, if in other respects it was unobjectionable.

The judgment is reversed and the cause remanded.

Reversed and remanded.