
    Thompson, Adm’r, v. Shannon and another.
    A charge either given or refused must be taken in view of the evidence on the facts alleged. A charge might be perfectly harmless and inoperative in the abstract, but when referred to a certain set of facts in the proof might have a most important influence on the jury.
    Where an administrator’s sale was attacked on the ground of fraud between the administrator and purchaser, and one of the allegations was that no money was paid nor note given, and facts were proved tending to establish the allegations of the petition, it was held that the court improperly charged the jury that absence of proof of payment of the consideration by the purchaser did notraise the presumption offraud.
    The failure or refusal of a party to produce testimony which might reasonably be supposed to bo within his power, to explain or rebut circumstances of suspicion, strengthens the presumption arising from those circumstances.
    Fraud may be proved by circumstantial evidence.
    Appeal from Montgomery. This suit was instituted to set aside a sale of laud made by Cochran, the former administrator, at which sale Shannon became the purchaser and received the administrator’s title. The ground upon which tlie sale was sought to he set aside was frand and collusion between the administrator and the purchaser. There were other grounds alleged In the petition, but they were not sustained by the record.
    The allegations of the petition wore tried by a jury, and there was a verdict for the defendant; a motion to set aside the verdict, which was overruled by the, court, and the plaintiff appealed. There was no evidence of any money being paid by the purchaser, nor that he had given a note and mortgage for the same; ho received a deed hearing date the. day of the sale, and on ihc next day conveyed two-thirds of the land conveyed to him by Cochran bade to Cochran. The same witnesses appeared to both deeds, and those witnesses, before the the jury, swore that they distinctly recollected the execution of the deed from Shannon to Cochran, but neither of them had any recollection of witnessing the deed from Cochran to Shannon, though they both admitted the genuineness of their signatures as witnesses to that deed. The court was requested to charge the Jury “ that proof of the payment of the ‘‘consideration by the purchaser would rebut the presumption of fraud; “absence of such proof would raise, that presumption.” The court gave the charge that proof of the payment of the consideration b}r the purchaser would rebut the presumption of fraud, but refused to give the other part, that absence of such proof raised that presumption, and said that it was not law.
    
      Toaban Sf Campbell, for appellant.
    The 4th charge asked, Is it not law? A consideration is the life of all contracts. If there was no consideration between Cochran and Shannon, would it not clearly raise a presumption of fraud?
    
      A. llempláll and L. L. Bradbvry, for appellees.
    That the court below did not err in refusing the portion of'the 4th charge, will appear by reference to 1 st G-reenleaf, secs. 34, 35, and SO; and see Roberts on Frauds, &c., p. 520; "3 Tex. It., 3:i; 8 Pet. It., 244.
   LIPSCOMB, J.

If law he a rule of right and sound reason, it would seem dilliouit to separate the o.ne part of the charge asked from the other. If the first part is right in law, the other would seem to he only a logical conclusion that would ioilow from the first. But the fair test of the propriety of a charge cannot be whether in the abstract it is right. It must he taken in view of the evidence, of the facts charged on which the jury is required to respond. A charge in the abstract, as a mere legal proposition, might be perfectly inoperative and harmless; when, however, referred to a certain set of facts and circumstances in the proof, it might have a most important and conclusive iulluence on the jury in forming their verdict. Now, if there had been no evidence of circumstances calculated to impeach the fairness of the transaction, tlie charge of the court as given could not have had any potency in it, and would have been regarded as abstract and irrelevant to the casé; but, when taken in view of the facts proven, its influence on the jury is too clear and direct, to be concealed or deified. The charge made in the petition was that the. sale was a fraudulent and collusive transaction between the administrator and (lie protended purchaser; and it was in evidence that the deeds, if not passed at; the same time, were so nearly one transaction in point of time as to raise the presumption that Shannon, the purchaser,-was only the instrument, and the willing instrument, of completing the fraudulent design, and that the administrator was the real beneficiary in the transaction. The witnesses to the deed saw no money paid and no note given. These were but circumstance's; they were, however, of a character to create an unfavorable impression as to the fairness of the transaction. Had the defendants proved payment of the consideration, it would have had an influence in rebutting the unfavorable presumption that had been raised ; and if that consideration was not grossly inadequate, would have removed the. cloud that had been attempted lo be thrown upon the fairness oE the transaction.

Again : if the parly to a transaction refuses or fails to use. means that might reasonably be supposed to be. within his power, his failure to produce such evidence strengthens the unfavorable presumption. It is in general the only means to reach fraud and drag it to the, light of the day; to prove circumstances from which the reasonable presumption is inconsistent with the honesty of tin* transaction. It is not often that any kind of evidence but circumstantial evidence, can he, procured. The most abandoned and profligate man is not willing to acknowledge, in the face of the world, his guilt; and plausible, pretences, clothed in the vestments of innocence, are resorted to by those who contemplate the commission of fraud, and if positive proof can be obtained of ilie fraud, it is the merest accident, and only furnishes an exception to the rule that it can only be reached by circumstantial evidence. The rule of law, that fraud must, be proven and not presumed, does not exclude the proof of facts from which fraud may be inferred. It only means that, in the absence of proof of such circumstances, fraud cannot be presumed.

The, charge of the court as given was calculated to make the jury believe that in law no inference unfavorable to the fairness of the transaction could be drawn legitimately from a failure to prove payment of the consideration. If it had been paid, It is reasonable to suppose that some evidence of such payment could be proven. The deed was not evidence of that fact, because the record shows that by the terms of the sale payment could not have been demanded until twelve mouths after it purported to be dated.

Because, then, we believe the court erred in refusing the charge as asked, the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.  