
    John Paxton v. James R. Boyce
    Appeal from Bowie County.
    Where proceedings to try the right of property, levied on under execution, are not instituted in accordance with the provisions of the statute regulating such trials, and the parties are thereby misled from the true issue to he tried, they will, on appeal, be set aside and the judgment reversed.
    Where verdict and judgment are set aside and a new trial granted, such judgment does not operate as alien upon the defendant’s property.
    Where one party to a suit makes a witness of the other, he thereby places his testimony beyond impeachment. He may prove the witness to be mistaken by proving the facts to be otherwise, but he will not be allowed to impeach his credibility.
    Fraud cannot be presumed, unless the circumstances on which such presumption is founded are so strong and pregnant, that no other reasonable conclusion can be drawn from them.
    The following are the material facts of this case, as disclosed by the record.
    Bojme, the appellee, had sued one Shule in the district court, and at the fall term, 1841, obtained a verdict which was set aside by the court on the affidavit of the defendant. At the spring term, 1843, Boyce, on leave given him by the court, amended by filing a new petition, and bad a verdict and judgment on which execution issued, and was levied on a negro woman and her child as the property of Shule, the defendant in execution. The property was claimed by the appellant, Paxton, who gave bond for the trial of the right of property, in conformity with the statute in such cases provided.
    Boyce, the appellee, filed a petition as in an original suit, stating substantially that he had sued Shule, and obtained a verdict' against him in 1841, as before stated; that the verdict had been set aside on the affidavit of Shule, which acted as a sivpersecleas to prevent the issuing of an execution on the judgment, thereby delaying his just rights until the spring term of the court in 1843, during which term, on the 5th day of April, the first judgment was reinstated and confirmed in his favor against Shule, on which an execution was sued out on the 5th day of May following, which was levied on a negro woman and her child, as having been the property of the said Shule when the first judgment was rendered against him and as being still bound and liable for the debt by virtue of the judgment first rendered and by other means, as by law provided in such cases; that the sheriff proceeded to advertise said property for sale, and that after the levy and previous to the day appointed for such sale, Paxton claimed the said property and gave bond as in such cases provided for the trial of the right of property. Petitioner prayed, in conclusion, that Paxton might be cited to appear and answer, etc.
    The answer of Paxton denies the allegations of the petition and states that on the 6th day of January, 1842, Shule sold the said slaves to him for the consideration of $700, and executed to him a bill of sale therefor, which he prayed might be taken as a part of his answer, marked exhibit A; that the said woman and child had been in his possession from the date of the bill of sale until July, 1843, when they were taken from his plantation by means and in a way to him unknown; that he afterwards found them in the hands of the sheriff of Bowie county, levied on to satisfy an execution in favor of Boyce against Shule, on a judgment obtained at the spring term previous; that the judgment at the fall term, 1841, which plaintiff alleged to operate as a lien upon the,said slaves, was not final as contemplated by the statute of the republic, nor was execution sued out on the same within twelve months as required by law, in order to bind the said property, and that the said judgment was not affirmed at thespring term, 1843, but that a new trial was granted by which the first verdict and judgment was annulled, and thereupon a new suit instituted against the said Shule, and judgment rendered against him at the spring term, 1843, which was the only judgment in force, etc. On the.trial the jury returned the following verdict: “We, the jury, find for the plaintiff in the original suit, James B. Boyce, and say that the negro girl was and is the property of Shule, the defendant in the original suit, so far as the same is of interest to his aforesaid creditor; we further say the said negress is legally subjected to 'the levy made.” Judgment was entered accordingly and the plaintiff appealed to this court.
    Allen, for appellant.
    The record shows that the purchase of the slaves by Paxton was bona fide, and upon a valuable and adequate consideration. There is nothing to impugn or throw suspicion upon the motive of Paxton in mating this purchase. If Shule was insolvent at the time of the sale, a knowledge of this fact was not brought home to Paxton, who did not even know of the pendency of Boyce’s suit against Shule, as is shown by testimony introduced by Boyce himself at the trial below. The purchase cannot be said then to have been made with the view or for the purpose of defeating the creditor’s execution, and is brought within the rule laid down in 2 Kent Com. 403.
    One of the grounds upon which the verdict and judgment below is endeavored to be sustained seems to rest upon the application of the doctrine that “ possession must follow and accompany the deed,” or the sale will be void as to creditors, as asserted in the case of Edwards v. Harben, 2 Term, 587, and referred to in 2 Kent Com. 407. It is true, the deed of the slaves to Paxton was executed in January, 1842, and that he did not take possession of them until the following March, so that they remained out of his possession for about two months after the date of his deed. . How it will hardly be contended that this delay on the part of Paxton operated to the prejudice of Boyce, or that any right of the latter accrued or intervened in consequence of this delay. Such being the case, I need only ask this court to apply the above cited rule to the case at bar, in the same spirit that the judge of the court of king’s bench applied it in the case of Bobinson v. Donell, 2 Barn, and Aid. 334 (referred to in 2 Kent. Com. 417), in which it is declared that the doctrine “ in Edwards v. Harben is unquestionably sound, and that it is not inconsistent with it to adjudge that if the vendee or mortgagee did not take possession immediately, it was sufficient if they did it before the right of a third person had intervened.” The sternness of the English rule, then, as applied by the king’s bench would be satisfied with the aspect of this case, and the sale from Shule to Paxton would, upon the facts presented in the record, be pronounced lawful and unassailable. Moreover, the sale of the slaves by Shule to Paxton was not clandestine or secret, but a matter of as much 'publicity and notoriety as such transactions are capable of. The bill of sale was made in the presence of two witnesses in Bowie county, where Boyce and Shule resided, and was executed and delivered in their presence. This circumstance, connected with the fact that the negroes remained in Paxton’s possession on his plantation in Arkansas, for about eighteen months before they were seized on under Boyce’s execution, gives sufficient notoriety and publicity to the transfer to bring the case within the rule laid down in Ohitty on Contracts, 326, that “ where the transfer is founded on a good consideration, and there is no intention in fact to defraud creditors, the legal presumption of fraud created by the non-delivery of possession does not arise if the transaction or transfer were a matter of publicity or notoriety” This doctrine is affirmed in no less than six English decisions referred to in the note. It is also declared upon the authority of two cases referred to in the same book and page, that “ the want of a change of possession shall not be deemed fraudulent when an attempt to defraud is negatived by the facts.” The facts in this case do negative such an intent as strongly as any array of facts can.
    The ground assumed by the plaintiff in the court below, that Boyce’s first judgment, recovered in 1841, although set aside by the court on the day it was rendered, was still sufficient to operate as a lien on the slaves, under the 12th section of the act of 1840 (4 vol. 94), is not tenable. The only kind of judgment which the statute enables to act as a lien is a “final judgment,” or one that puts an end to the litigation. The statute requires it to be such an one as execution may issue on, and of course, such an one as an appeal would lie from. The judgment referred to possessed neither of these requisites. It did not put an end to the litigation, for that was not terminated until the spring term, 1843. It was incapable of being enforced by execution and it could not form the basis of an appeal. Consequently it could not act as a lien. It was a nullity. 1 Pothier Ob. The second j udgment could not act as a lien on slaves, but only on the real estate of the defendant. Laws Texas, vol. 7, p. 68, sec. 12.
    Morrill, for appellee.
    The sale of the negro by Shule to Paxton was made for the purpose of defeating creditors, and is therefore null ánd void so far as they are concerned. The evidence discloses that Shule and Paxton were near neighbors; that Shule had repeatedly declared his determination to defeat Boyce’s claim, and that the same was nearly large enough to cover all the visible property of Boyce. These facts, in connection with the other circumstances attending the purchase of the slaves by Paxton, furnish strong presumptive evidence that he had a knowledge of Shule’s indebtedness to Boyce, and of the snit then pending between them. Is it reasonable to suppose that Paxton, his near neighbor, would fail to know the object which Shule had in view in selling his only slave? The sale then was clearly fraudulent, so far as the rights of Boyce were concerned. Acts 1840, p. 28, sec. 2. Paxton having purchased the negro and left it in possession of the vendor, the legal presumption arises that he acted fraudulently. Ghitty on Contracts (ed. of 1839), 408, 412 and notes; Pierce v. Curtis, 6 Hart. 418; Twyne’s case, 3 Coke, 80.
    If the facts do not strongly preponderate against the verdict of the jury, the judgment .should be affirmed.
    The facts of the case were stated before the delivery of the opinion.
   Lipscomb, J.

Proceedings similar to those had in this suit, on a claim of property levied on by execution, came before this court at the present term, in the case of Bennett and wife against Gamble, administrator of Bicherson; and we then ruled that they were irregular, and not in conformity with the statute regulating the mode of trying the right of property in such cases. We did not say that if the proper issue was substantially formed in this way that the departure from the practice contemplated by the statute would, of itself, be a sufficient ground for setting aside the proceedings and reversing the judgment; but it was denounced as irregular and calculated “to jproduce delay and unnecessary ecepense,” and, in this case, it may be added, to mislead and draw the parties from the true issue. The only substantial averment, as appears to me in the petition, is not calculated to exert any influence in deciding the legal rights of •the parties. The plaintiff in the execution avers that his lien on the property attached from his first verdict, which was set aside by the court; and he calls the judgment on a verdict obtained three terms thereafter, an affirmance of the first. That this was the legal conclusion he wished to establish appears evident throughout the whole of his petition; and he makes this the gist of his right to satisfaction of his execution by the sale of the property levied; and it is equally clear to me that if there was anything more claimed or presented by the petition, the claimant of the property was misled by the distinct presentation of that averment. Bor that seems to be the only fact on which he takes issue, by averring “ that the lien did not commenee until after the rendition of the last mentioned judgment.” The law of lien, set up by the plaintiff’s averment, is certainly not correct; and it is equally certain that the averment did not present the issue, as it ought to have been from the circumstances of the case; audit is strange that it could have been entertained by the enlightened and respectable counsel, who made up the pleadings in the court below. It cannot be doubted, from the evidence contained in the statement of facts, that the attention of the court was never directed to the issue. But, however that may have been, if we believe that the issue was not such as the law required ¡in such cases, and more especially if we believe that it was calculated to mislead, the practice should not be sustained.' That such was its tendency, and that it really did have that effect, I can entertain no doubt when I compare the petition with the answer. It will be seen that the plaintiff mainly, if not exclusively, relies on his supposed lien from the first verdict, and that this conclusion is the one negatived by the answer. Under the issues the claimant could not have been expected to prepare for anything more than an inquiry into the simple and isolated question; whether that verdict, so set aside, imposed and continued a lien on the property, at that time owned by the defendant in the execution, no matter how free from fraud may have been its alienation. It presented a question of law, and not of fact or fraud. The court below, on the discharge of the duty imposed by the statute, should have prevented all grounds of misconception by either party. This might have been done by directing the true issue to be made up; and it could have been done in very few words, such as “ The plai/ntiff in the execution avers that the property levied on was liable to his execution,” or in words of the like import. The liability of the property in that case was the only issue. A simple negation of the averment by the defendant would have been all that was necessary on his part. There is another point presented by the record that the court is called on to notice. By a reference to the evidence contained in the statement of facts, it is very obvious that the plaintiff made an effort to prove that the purchase of the slaves was made by the claimant with an intent to defeat and defraud him of his just debt. And with this view, circumstantial evidence was given of a fraudulent intent on the part of the vendor; his declarations were proven conducing to that end, but not in the presence of the vendee. And in attempting to bring home notice to the vendee of that intent by the vendor, to make him a participator in the fraud, the only circumstance proven was that he lived a neighbor to the vendor. There was.no proof of actual notice or participation in the supposed fraud; and if there was proof at all, it was only by presumption, and that not drawn from pregnant facts, but from a far-fetelied probability. How far we ought to go in setting aside a judgment on the ground that the evidence was not sufficient to sustain the verdict of the jury, it is not now necessary to declare; we will only observe that when evidence, unexceptionable on the ground of competency, goes to the jury conducing to prove the facts in issue before them, we should hesitate much and require the presentation of a strong case before we should say that the evidence was not sufficiently strong to support their verdict. In a case of ordinary features in doing so we should be treading on forbidden ground, and encroaching on the prerogative of the jury, whose peculiar province it is to weigh the testimony.

It is, however, the province of the court to determine on and enforce the legal rules of evidence. It is an acknowledged rule of evidence that presumptions merely are not to stand against unim-peached positive testimony. "We find in the statement of facts that the plaintiff made a witness of the claimant of the property on the trial, and propounded the interrogatory: “Did you know of the pendency of the suit?” Its object was, no doubt, to prove a fact from which a reasonable conclusion could be drawn by the jury of his participation in the fraud of his vendor. Ilis answer was an unequivocal denial. It is a rule of evidence that when one party makes a witness of the other, he does it under the responsibility and condition that he thereby places him, on the score of credibility, beyond impeachment. lie may prove the witness mistaken, by proving the party to be otherwise, but he will not be allowed to impeach liis credibility. The answer of the complainant destroyed the presumption arising from such circumstances as were proven. Fraud cannot be presumed. If it is proven" by circumstantial evidence, the circumstances should be strong and pregnant, from, which no other reasonable conclusion could be drawn. When the above rules are applied to the evidence presented by the statement of facts, it will be seen that the verdict, in the case under consideration, was not only not supported by the weight of evidence, but it is contrary to some of the best established rules governing testimony. We do not wish it to be understood that we sanction the admissibility of all of the testimony given in this case. We give no opinion as to the competency of receiving the declaration of the vendor. The circumstances under which the testimony was received are not known, but it does not appear to have been objected to, and is therefore not before us, and we express no opinion as to its admissibility.

The judgment must be reversed and the cause remanded on the petition and answer; the trial of the right of property set aside; and an issue is directed to be made up under the direction of the court, in conformity with this opinion, which is to be certified to the court below for its direction.  