Badgett v. Johnston-Fife Hat Co. , 1 Indian Terr. 133 ( 1897 )

Lewis, J.

(after stating the facts). 1. This case is, in all respects, similar to the case of Fowler vs Blosser Ind. Ter. 36; 35 S. W. 247. The court, in the first paragraph of its charge, gave a statement of the law which was approved as correct and applicable to the evidence in that case. The assignment of error based upon the giving of this instruction will not, therefore, be further considered. It is true, the court, in the conclusion of this paragraph, limited the consideration of the jury to the question whether there was an understanding of the assignor with the assignee for possession by the latter of the assigned property before filing inventory and bond; but, as the fact of possession by the assignee before the filing of his inventory and bond is undisputed, there was no error in the action of the court in this respect.

2; The sole issue raised by the proof is whether or not there was an agreement between the assignor and the assignee, contemporaneous with the execution and delivery of the deed of assignment, by which the assignee was to have possession of the assigned property prior to filing his bond and inventory. If there was such an agreement, followed by such possession, the assignment is void, whether the intention of the parties to such an agreement or understanding was fraudulent in fact or not. Such agreement and possession vitiate the assignment, because prohibited by law. If they exist, it is enough to produce this result, without more. It is true, these facts are sometimes said to constitute fraud upon the law, and sometimes fraud in law. This, however, is a matter of expression. The material inquiry in cases like the present is, do these facts concur? If so, they avoid the assignment, whether they be termed-‘imputed fraud,” “constructive fraud, ” “fraudin law,” or ‘ ‘fraud upon the law. ” The charge requested by the appellant, while correct in general terms, was abstract, and calculated to mislead the jury by the use of the word ‘ ‘fraud,’ ’ which, alone and unexplained, implies to the popular mind the idea of acts done with intent to cheat or overreach. For this reason the court properly refused the charge as asked. The instruction, as modified and given, is open to the criticism that its phraseology is not apt; but, taken in connec-;ion with the other parts of the charge, we think it presented ;o the jury the idea of fraud resulting in law from an agree-nent expressly proven, or implied from circumstances! vhich, when followed by possession, is adequate to overturn he deed. Believing that the jury were not misled as to the ssue they were to pass upon, the defects in this instruction rising from the inexact use of technical language will be lisregarded.

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3. The testimony Objected to was admissible to stablish possession by the assignee of the assigned pro-erty before the filing of his inventory and bond, and ertinent to the issue whether such possession was the re-ult of an implied agreement or understanding had at the me of the execution of the instrument. In the light of the ecisions of the state from which we get our assignment bw, we are unable to say that the evidence was insufficient ) support the action of the jury in finding such an agree-ent. Smith vs Patterson, 57 Ark. 537; 22 S. W. 342. The idgment is affirmed.

Kilgore, J., concurs.