
    Henry Gibson v. S. W. Hill.
    Where a vendor remains in possession of property after the sale, it raises a prima facie presumption that the sale was fraudulent; and such presumption, though not conclusive, changes the burden of proof, and requires explanation to remove it.
    And so to charge is not objectionable as being upon the weight of evidence.
    Appeal from Calhoun. Tried below before Hon. P. Jones.
    Henry Gibson recovered a judgment in the District Court of Matagorda county against Claiborne Hill and Wm. Varnell on the 20th day of October, 1856, on which judgment execution was issued October 29th, 1856, and levied November 21st, 1856, on five negroes in the possession of Claiborne Hill, in Calhoun county.
    S. W. Hill, son of Claiborne Hill, set up a claim to the negroes, making affidavit and giving bond, as required by the' Statute.
    Date of affidavit and bond, November 25th, 1856.
    The claimant relied upon a bill of sale of the negroes from Claiborne Hill to himself, dated October 17th, 1856, and filed for record on the same day.
    The plaintiff in execution impeached the fairness of this sale, alleging the same to have been made to hinder, delay and defraud creditors, and especially the plaintiff in the collection of his judgment debt.
    The consideration expressed in the bill of sale was $1931 13, but an instrument executed at the same time by the vendee explains the actual consideration to be the assumption by S. W. Hill of the principal of a debt of some $1218, of ten years’ standing, due from Claiborne Hill to his father’s estate in Alabama, also the assumption of another debt of $413 13, due from Claiborne Hill to Gillett, which debt was secured by a mortgage on one of the negroes, and the further sum of $300 in cash—making in all the amount expressed in the bill of sale, $1931 13.
    There was testimony introduced on the trial to show that the negroes were worth $2500. It was proved that they continued in the possession of Claibore Hill, after the alleged sale, and were in his possession when the levy was made, and no proof was offered in explanation of the possession so remaining with the vendor.
    Verdict and judgment for the claimant, and appeal by the plaintiff in execution.
    
      Shertvord & Goddard, with Stocledale, for appellant.
    The circumstances of this case raise a strong, if not a conclusive presumption of a fraudulent collusion between Claiborne Hill, the father, and S. W. Hill, the son, to defeat the collection of the appellant’s demand ; and establish such an understanding and privity between the parties to the pretended sale as to have warranted the admission of Claiborne Hill’s declarations previous to the sale, for the purpose of showing the nature and probable design of that transaction.
    When it appeared in evidence that this sale was made but three days before the rendition of the judgment; that the consideration was much less than the fair value of the negroes, and consisted in great part of the assumption of a stale and contingent liability; that the possession of the negroes remained with the vendor, without explanation, from the time of the alleged sale until the date of the levy ; and that the parties to this transaction were father and son—certainly, a sufficient basis was laid for the introduction of Gillett’s testimony as to Claiborne Hill’s declarations of his intention to avoid the payment of this demand; and it was for the jury to find, from all the facts of the case, whether or not S. W. Hill was cognizant of Ms father’s intention. The mere fact that the son was not present when the declarations were made, was not a sufficient ground for excluding the testimony from the jury, and the Court erred in so ruling.
    The bare fact that the negroes remained in the possession of the vendor after the pretended sale was prima facie evidence of a fraudulent collusion between the parties ; and in the absence of all attempt to explain that possession, the presumption of fraud became conclusive: and the jury should have been so instructed by the Court in accordance with the second charge asked by the plaintiff in execution. (Bryant v. Kelton, 1 Tex. R. 416 ; Morgan v. Republic, 2 Tex. R. 279 ; 2 Kent. 513 et seq., and other authorities too numerous to cite.)
    The charge given by the Court did not instruct the jury as to the presumptions arising in the case, and was therefore incomplete and calculated to leave the jury under an erroneous impression as to the kind and amount of proof required on the part of the plaintiff to impeach the bill of sale produced by the claimant.
    Had the jury been properly instructed as to the presumptions of fraud arising from such facts as those established by the proof in the present case, and of the necessity of rebutting these presumptions in order to vindicate the fairness of the alleged sale, there can be no doubt that the verdict would have been for the appellant, as there is no testimony in the record tending to'explain (on any other hypothesis than that of fraudulent collusion) why the sale was made at that particular time, for an inadequate and uncertain consideration, and the negroes allowed to remain in the possession of the pretended vendor.
    
      Cunningham dr Molt, for appellee.
   Roberts, J.

The material question in this case arises on the charge of the Court given to the jury, and on the charge asked by the plaintiff in execution, Gibson, which was refused by the Court.

The Court instructed the jury that they should consider the fact that the vendor remained in possession of the slaves after the sale (among other things) in determining whether the sale was made in fraud of creditors; without indicating to the jury whether such possession was regarded by the law as conducing to show the fraudulent character of the sale, or its fairness.

The charge asked by the appellant was “ that if the jury believe from the evidence that the negroes in controversy remained in the possession of Claiborne Hill, the vendor, after the conveyance to defendent, it is prima fade evidence of fraud, and unless that possession is explained satisfactorily and consistently with good faith they will find for the plaintiff Gibson.”

We have a Statute which provides that “ the Judge shall not in any case, civil or criminal, charge or (comment) on the weight of evidence or testimony, and he shall so frame his charge as to submit questions of fact solely to the decision of the jury, and he shall decide on and instruct them as to the law arising on the facts, distinctly separating all questions of law from questions of fact.” (Hart. Dig., Art. 758.)

The law arising upon the fact that the vendor remained in possession of the property after the sale, was the prima fade presumption that the sale was fraudulent. Such presumption, though not conclusive, changes the burden of proof, and requires explanation to remove it. Such Was the doctrine maintained by this Court in the case of Bryant v. Kelton and Uzzell, adm’r; in which the subject is reviewed from Twyne's case down to the present time. (1 Tex. R. 415.) In that case Justice Lipscomb lays down the rule by saying “ the legal effect, then of the possession remaining with the vendor, would be a presumptive or prima fade conclusion that it was fraudulent and therefore void. Such is the law, in a case standing-on the naked facts of a claim by the vendee of property, remaining in possession of the vendor, unaccompanied by any other circumstances to rebut such presumption.” (Id. 429.)

Such charge would not be objectionable as being upon the weight of evidence. For the law has attached to such evidence a particular weight, of which the jury should be informed by the Court.

We think that the facts of this case, no explanation of the vendor’s possession after sale being given, required that the charge asked should have been given, and that its refusal was error.

Judgment is reversed and cause remanded.

Reversed and remanded.  