
    John G. W. Pierson v. William Tom
    Appeal from Washington County.
    Where certain slaves were attached as the property of A., which B. claimed under a bill of sale from A. Held, on the trial of the right of property between B. and the plaintiff in attachment, that proof on the part of the latter to show that one of the slaves mentioned in the bill of sale, but not attached, was npt in the possession of A. when he executed the bill of sale to B., was inadmissible.
    Fraud on the part of a vendor cannot affect the right of a purchaser, bona fide and for a valuable consideration, who was no party to the fraud. [10 Tex. 893, 419; 15 id. 188; 16 id. 34; 19 id. 257; 22 id. 45, 470, 670, 708 ; 27 id. 407.]
    Such purchaser is as much favored and protected by the law as a creditor,
    
      This was a trial of the right of property. Tom, the appellee, had sued out an attachment against one Thomas d. Thermond, and had the same levied on certain slaves. Pierson, the appellant, claimed the slaves under a bill of sale therefor, executed to him by the said Ther-mond on the 20th day of May, 1842, and replevied the same. An issue was made up in the distinct court on which the jury found a verdict against the claimant, and he thereupon appealed to this court.
    The record presents the following statement of facts, viz.: “ The claimant, Pierson, introduced the bill of sale, marked exhibit X, and the deposition of the witness, Edley Montgomery, appended to the same and marked B, showing that the sale was for a valuable consideration. Tom proved that an attachment was issued on the 5 th day of April, 1842, and quashed on the-day of -, and a second issued on the 12th day of October, 1843,-and also subsequently quashed. It was farther proven for the claimant, Pierson, that previous to the issuing of the second attachment, Tom had personal notice that Pierson claimed the negroes under the bill of sale above referred to, and that Tom acknowledged that he knew of the existence of the bill of sale. Tom proved also that a certain negro, Simon, mentioned in the bill of sale, was not in possession of Thermond when the bill of sale was executed, and that at the time of the sale of the negroes from Thermond to Pierson, an attachment was pending.”
    Willie, for appellant.
    1st. The verdict of the jury was contrary to law and evidence.
    An effort may perhaps be made to draw the inference of fraud from certain circumstances in the case; as, for instance, the non-delivery of the property at the time of sale.
    A conflict exists in the authorities upon the construction of the statute of 18th Elizabeth, usually called the statute of frauds, and the legislative enactments of the different states copying it, upon the question as to how far the fact of possession, not accompanying or following the sale of personal property, is evidence of fraud, and destroys the conveyance when it interferes with the rights of creditors.
    The view I take of our statutes for the prevention of frauds and fraudulent conveyances leads me to the conclusion that the various constructions placed upon the statute of 13th Elizabeth, and other legislative enactments following that act of parliament are not of .great importance in'the following cause. Upon an examination of the statute of 1,3th Elizabeth, and comparing it with our act, there appears to me one essential and important difference, which, to my mind, points out clearly the proper construction to be given to our statute upon the question as to how far the circumstance of non-delivery of possession at the time of sale constitutes a badge of fraud.
    The second section of the act “ to prevent fraud and fraudulent conveyances” follows substantially the 13th statute of Elizabeth, by declaring “gifts, grants, etc., of lands, slaves, etc., made and contrived of malice, fraud or covin,'to hinder or delay creditors (and our act adds subsequent purchasers) of their just actions, demands, etc., shall be deemed void, any feigned consideration or pretense to the contrary notwithstanding.”
    The language is not fully quoted, but sufficiently so to show that thus far, as to the rights of creditors, our statute follows the statute of 13th Elizabeth. But here follows a further provision of our act, which I will quote to illustrate the position assumed, that the act itself bears upon its face its own construction, and does not require the aid of judicial interpretations heretofore given to the English statute to explain its meaning. It is in these words:
    “ And moreover, if any conveyance be of goods or chattels or slaves, and be not, on consideration, deemed valuable in law, it shall be taken to be fraudulent within this act, unless the same be by will, duly proved and recorded, or by deed in writing or other instrument acknowledged or proved, if the same deed or instrument of writing include lands, also acknowledged or proved in such manner as conveyances of land ar-e by law directed to be acknowledged or proved, or if it be goods and chattels, or slaves, only then acknowledged or proved by two or more witnesses, and recorded in the manner as now established by law, or may hereafter be established for the recording of deeds of conveyances of real estate in this republic, or unless- possession .shall really and bonco fide remain with the donee.” It will be seen that the statute here speaks of conveyances made upon considerations not deemed valuable in law, and uses the word “ donee.” It provides that in conveyances of this description (those which are not upon considerations deemed valuable- in law), the conveyance shall be esteemed fraudulent, in consequence of non-delivery of possession, only if there be a failure to record the instrument. This, as well as the last section of the act, relieves conveyances for valuable consideration, even from the formality of recording, and will not presume them fraudulent, although possession does not accompany the sale, and no record is made of the instrument.
    We may deduce from this language of the act:
    1st. That a plain and important distinction is made between conveyances for valuable consideration, and those upon considerations not deemed valuable in law. The latter are presumed (if they be of personal property) to be fraudulent, unless possession remains with the donee, or the instrument is duly recorded. The former are expressly excepted even from this requirement. The law, therefore, so far from recognizing this presumption against conveyances for valuable consideration, declares, in so many words, that a failure to record the instrument, or a failure to take possession, shall constitute no presumption of fraud against the title of a purchaser for valuable consideration.
    2d. That the act of recording the instrument, under our law, is equivalent to taking possession of the property, and is regarded as constructive possession.
    This manifest difference between our statute and that of the 13th Elizabeth, and the clear language of the act, would seem sufficient to set at rest the question, and show the inapplicability of any reference to decisions based upon the English statute. See 3 Bac, Abr. tit. Fraud, where the act of 13th Elizabeth may be found, and Laws of Texas, vol. 4, p. 28.
    But it may be said that a presumption of fraud arises from the fact that previous to the execution of the bill-of sale, an attachment had issued against the estate of Thermond. Let us refer to the facts of the case. It is stated that the first attachment was dissolved at some subsequent time, probably at the next session of the court in 1842, and we may conjecture that it was because no property was taken under the attachment, for nothing is said of its having been levied. We hear then nothing more of the attachment until October, 1843, and nothing is said of this second attachment being levied. It was also dissolved, and perhaps for the same reason. Now, where was the property during this time? It may have been in the possession of Pierson; at least no lien could be acquired upon the property until a levy was made, and there is nothing in the facts to allow a presumption of fraud against Pierson, on account of a pendency of a suit which was twice suspended. But suppose Pierson purchased the negroes during the pendency of the suit, what are the rights of the parties under this state of the case? It is a principle of law which I will not undertake to controvert, that a purchase made of property actually in litigation, pendente lite, for valuable consideration and without any express notice in point of fact, affects the purchaser in the same manner as if he had such notice, and he will be bound by the judgment or decree in the suit. 1 Story Eq. p. 393. But this doctrine has no application to the present case. An attachment is but an extraordinary process allowed by law to bring the debtor into court, by means of a levy upon and seizure of his property where he evades the necessary process of the law or is beyond its reach. Can it be said that property seized by virtue of this writ is in litigation between the parties to the suit? Most certainly not. And how much less can the doctrine be made to apply to a case like this, where the property now in controversy does not appear even to have been levied upon. The doctrine of Us pendens cannot be invoked to create a presumption of fraud against Pierson, because:
    1st. The suit between Tom and Thermond was not a suit where the title of property was in litigation.
    2d. The suit abated, and therefore Pierson’s title could not be affected without proof o£ actual notice, which he did not have. 2 Fonb. Eq. ch. 6, sec. 3, note (a); 3 Atk. 243; 1 Tern. 286.
    In support of the honesty and good faith of Pierson’s title there are many and strong circumstances, for,
    1st. The sale took place publicly, and the conveyance was executed in the presence of two witnesses.
    2d. It was immediately and duly recorded in the county of Montgomery. It was informally recorded in the county of "Washington in September, 1842, and duly recorded in April, 1845.
    3d. Pierson by every legal means prosecuted his rights to the property and gave to Tom personal notice of his claim.
    See Twyne’s case, 1 Smith’s Leading Cases, p. 1.
    Another reason why Tom cannot claim a judgment subjecting this property to his attachment is that he does not show himself to be a creditor. He asks us to presume in his favor that he is defrauded, simply because he had at the time of this trial a pending attachment from which this trial of the right of property originated. The record nowhere shows that he ever prosecuted his attachment suit to judgment, and if he had not done so at the time of the trial of the present suit in the court below, it was surely necessary that he should make' some proof of the indebtedness of Thermond stronger than that afforded by the mere fact of the pending attachment.
    2d. The court erred in allowing the introduction of testimony as to the possession of a negro included in the bill of sale, but not in controversy between the parties. The object of this testimony was to raise a presumption of fraud, on account of the non-delivery of the property at the time of sale. I have already referred to our statute of frauds to show that the rights of purchasers for valuable consideration are protected against every presumption arising from this circumstance. Besides, the testimony was wholly irrelevant — relating to property which was not in dispute.
    ■ 3d. The charge of the court that fraudulent intention on the part of Thermond vitiated Pierson’s title, though the latter was an innocent purchaser for a valuable consideration and no party to the fraud, was erroneous.
    The rights of purchasers for valuable consideration, and 7>ona fide are peculiarly favored by our statute of frauds before referred to. It regards not the intention of the vendor if the purchaser does not participate in the fraud. All laws esteem the rights of such a purchaser equal to those of a creditor. The doctrine is distinctly asserted in all the authorities to which I have had access, that the purchaser must have knowledge of the fraudulent intention of the vendor, in order to affect his title.' 1 Story Eq. 343, 364.
    This principle is consonant with reason and equity, and any other doctrine is a violation of both. Purchasers for valuable consideration, without notice of the fraud, are highly regarded in equity, and their rights protected alike against fraud, accident and mistake — the three great grounds of equity jurisdiction. 1 Story Eq. pp. 119, 154, 179. '
    
      Rivers and Fiseher, for appellee,
    contended that the sale of the negroes by Thermond to Pierson having been made pendente lite, there was notice to the latter, and that the sale was consequently void.
    They cited 2 Bouv. Law Diet, title Lis Pendens; 1 Story Eq. secs. 405-8; 2 Blackf. 258; 1 Johns. Ch. 395; 3 id. 109; 7 "Wend. 367; 2 Cond. 331; 2 Kent, 61.
    The facts of the case were stated by the court.
   LipscoMb, J.

This case is submitted on the briefs of the appellant and appellee. The errors relied on for reversing the judgment of the court below arise on two bills of exception to opinions of the court. On the trial, Tom, the plaintiff in the attachment, offered to prove that the negro man, Simon (named in the bill of sale from Thermond to Pierson, but not attached), was not in the possession of Thermond when the bill of sale was executed. The claimant’s counsel objected to the introduction of the testimony, as he was not levied on under the attachment, but the court overruled the objection, to which the counsel for the claimant excepted. We cannot perceive why such testimony should be admitted. It certainly, when presented in the abstract, was not proper testimony and was irrelevant. It would not give a right to or strengthen the claim of a creditor to those that had been attached, if-Pierson’s title to the other was free from any vice. Even if he had purchased one not in controversy, under circumstances calculated to excite suspicion as to that one, and that one not sought to be charged with the debt of the vendors, it would not have been proper evidence, because the fairness of the claimant’s purchase as to that slave had not been put in issue, and he could not have been called upon to-sustain his title to him, until it had been impeached. It is possible that the evidence may have been unobjectionable from the connection of other facts; but neither the statement of facts nor the exception furnishes any grounds for its sanction; and we believe, that as presented, it was improper testimony and ought to have been rejected. There was another exception taken to the refusal of the judge to give the charge requested by the claimant’s couusel, and to the charge given. The claimant’s counsel asked the court to instruct the jury that if Pierson was a purchaser for a valuable consideration and bona fide, although Thermond, the vendor, might have intended to defraud his creditors by the sale, yet Pierson, if no party to the fraud, could not be prejudiced nor his right affected by the fraudulent intent of Thermond. The court refused to give the instructions but charged that fraud on the part of Thermond, though Pierson was no party to it, vitiated the transaction and rendered the conveyance void, which was excepted to. "We consider the principle as well settled that the law protects and favors innocent purchasers fully as much as creditors. The reason is founded in good sense and the convenience of mankind; were it otherwise, the most innocent transaction would often be visited with the penalties of fraud. A man paying a full and valuable consideration for property might justly suppose that in the purchase, so far from diminishing the means of the vendor for paying his debts, that it would afford him a facility in doing so. It would be as repugnant to sound morality as it is to good policy to visit the innocent purcharer under such circumstances, with the secret fraudulent intention of his vendor. Such is neither the rule of law nor of morals. This plain principle of law could be well sustained by numerous adjudicated cases, but it is too well established to render it profitable to go into an enumeration of them. There are some interesting principles involved in other points presented by the appellant’s brief, and certainly merit due consideration; but we are too much pressed with other paramount duties to permit our going into an investigation of points not absolutely necessary to a disposition of the case.

Because, therefore, the court erred in the admission of the testimony objected to by the counsel for the appellant in the court below, and because the court also erred in refusing to give the charge prayed by the said counsel, and afterwards in the charge given — the judgment is reversed and the cause remanded for a new trial, in conformity with the opinion now given.  