Linn v. Wright , 18 Tex. 317 ( 1857 )

Wheeler, J.

The principal questions respecting the admissibility of evidence to invalidate the assignment, were determined when the case was before us on a former appeal. The rulings of the Court appear to have been in accordance with the opinion then delivered in the case, and, it is conceived, the well-settled rules of evidence upon the question of fraudulent intent in the making of a deed. Unquestionably the deed is tobe received in the light of surrounding circumstances, in order to arrive at the real intention of the parties. Unquestionably the assignor, remaining in possession of the goods to dispose of them as agent for the trustee, must be deemed, prima fade, at least, to have conducted himself, in his dealing with them, in accordance with the understanding between himself and his principal. The latter was bound to take notice of the manner in which he conducted himself in his employment. What the agent did, the principal must be presumed to have assented to ; and it is not unreasonable to suppose that parties had contemplated in advance a line of conduct, which they are shown to have pursued. Althouglrthe employment of the debtor by the trustee is not forbidden by law, yet “ if he be permitted, as “ their agent, to use and control the assigned effects in a man- “ ner wholly inconsistent with the purposes of the trust, and as “ his own, it will be evidence that the assignment was not made “ in good faith.” (Burrell on Assignments, p. 174; Smith v. Seavitt's, 10 Alabama R. 92, 105.)

The fair and natural inference deducible from the evidence is, that the dealing of the parties with the goods, after the assignment, was consonant with their intention and private understanding at the time af making it; and that it was intended not only to secure the preferred creditors and those who had incurred liability as sureties of the assignor ; but also to secure to the assignor himself certain benefits out of the property assigned, to the hindrance of other creditors in the enforcement of their rights. That such a purpose will render the deed fraudulent and void as to the deferred creditors, does not admit of question. To warrant the jury in so finding, it was not necessary that the circumstances tending to that conclusion should have been incapable of being accounted for upon any other hypothesis. There is no such rule of evidence or principle of law, as that, in order to authorize a jury to deduce, from circumstantial evidence, the conclusion of fraud, the circumstances, must be of so conclusive a nature and tendency, as to exclude every other hypothesis than the one sought to be established. If the evidence is admissible as conducing in any degree to the proof of the fact, the only legal test applicable to it, upon such an issue, is its sufficiency to satisfy the minds and consciences of the jury. The question of fraudulent intent is a question of fact, which it is peculiarly within the province of the jury to decide. They are the exclusive judges of the weight of evidence ; and are to be guided in their decision by their conscientious judgment and belief under all the circumstances of the case. (1 Stark. Ev. 474; 1 Tex. R. 326.) What amount or weight of evidence shall be sufficient proof of such intent can never be matter of legal definition. The law, therefore, refers the weight of evidence, and the degree of probability to the jury ; and the only test which can be applied is its sufficiency to produce a satisfactory conviction or belief in their minds.

Deeming the evidence, extrinsic of the deed, sufficient to warrant the verdict, it is unnecessary to decide upon the intrinsic validity of the instrument. It is not proposed therefore to notice all the objections taken to it. But there is one which seems deserving of notice, especially as the Court may again be required to pass upon it: that is, that the schedule referred to in the deed as containing a description of the property, and as being annexed to the deed, was not annexed, nor produced in evidence. There certainly should be a description of the property conveyed, either in the body of the instrument or in a schedule annexed to it. Without such a description, or some such reference, as to render the property capable of being ascertained and identified, the deed will not ordinarily operate a transfer of the title. There must in general be some such description or reference to the property, or the deed will be inoperative and invalid. But it is immaterial whether it be given in the body of the instrument, or in a schedule annexed, to which reference is made. The latter is the usual method, where the property is considerable in amount, or consists of a variety of particulars. “ When schedules are intended to be “ prepared, and are referred to in the assignment, they should, “ in strictness be prepared before the assignment is drawn ; or, “ at any rate, be in readiness, so as to be annexed to the instru- “ ment before it is executed. In some cases, however, where “ time has not been allowed for the preparation of schedules, “ particularly those of the property assigned, an assignment ex- “ ecuted without schedules, and only referring to them, as 1 to “ be made out and annexed,’ at a future time, has been adjudged “valid.” (Burrill on Assignments, 247.) “If possible, these “ schedules should be completed and annexed to the assignment “ before execution ; but this is sometimes dispensed with. The “ general rule on this subject appears to be this, that the mere “ omission to annex the usual schedules, is not, in itself, suffici- “ ent to avoid the assignment. * * In some instances, “ and when taken in connexion with other circumstances, this “ fact of omission may be considered a badge of fraud. But the “ inference of fraud may be repelled by various circumstances. “ Thus, in Massachusetts, where the assignment itself contained “ a proviso that schedules were to be made out as soon as “ might be, the presumption of fraud was held to be removed. “ 8o in New York, where full schedules were presented to the “ Court, in answer to a bill filed by a judgment creditor, the “ inference of fraud was hold to be repelled. So if the property “ be described in the assignment with sufficient certainty to ena- “ able the assignee to take possession of it, the omission to an- “ nex a schedule, though provided for in the deed, will not ren- “ der the assignment void. And if possession accompany the “ transfer, and the transaction be, in all other respects, fair, “ the mere want of a schedule will not render it fraudulent. “ Want of a schedule is less suspicious where the whole of the “ assignor’s property is conveyed, for the benefit of all creditors, “ than where part of it is conveyed for particular creditors.” (Id. 254, 255, 256.) A mere imperfection in the description of the property will not have the effect of invalidating the instrument ; and a description in general terms has frequently been held unobjectionable; as where the property was described as the cargoes of certain vessels named, without invoices, bills of lading, or valuations ; and real estate lying in Boston,. Charlestown, and Maine, without a particular description of each parcel; it was held that, as the description could be made certain by the reference given, it was sufficient. (Id. 240, et seq.

The authorities on this subject are reviewed at considerable length in Mr. Burrill’s treatise; and the general rules deduced. The extracts and references we have given may suffice to indicate the law as applicable to the present case. The description of the property given in the deed is contained in the following clause : “ All and singular, my stock in trade, con- “ sisting of goods, wares and merchandise, and named in the “ schedule hereunto annexed, dated'August 24th, 1852, marked “ B ; also, all my notes and accounts due me by debtors, a sche- “ dule of which, with the names of the debtors, and the amounts “ due by them respectively is tobe made and hereunto annexed, “ marked 0.” “ All my stock in trade, consisting of goods, wares and merchandize,” is certainly very indefinite ; but perhaps not so indefinite as to be incapable of being rendered certain by proof. But it seems the schedule of the 24th of August, containing a particular description of the property, had been prepared previously to the making of the deed, which bears date on the 9 th of September following. Why the schedule was not annexed, does not appear. Its absence is certainly a suspicious circumstance ; and unless explained, or unless there was satisfactory proof of what property was included in the general reference “ all my stock in trade,” so that it might certainly appear for what the assignee is responsible ; whether the property was not greatly more than sufficient to satisfy the preferred creditors ; and what particular property was, in fact, embraced in the assignment; the Court, it would seem, might well have sustained the motion of the appellees to exclude the assignment from the consideration of the jury. For undoubtedly it was the right of the deferred creditors, to have all the security against abuse of the trust by the assignee, which it was the apparent purpose of the deed to afford ; and to be fully informed as to the disposition which the assignor-had made of his property. They ought not to be bound by any assignment, which was effected in such a manner, as not to enable them to hold the assignee or trustee responsible for all the property conveyed, or as to needlessly embarrass their remedy against him in case of his delinquency ; or which, in any manner concealed the real transaction, and rendered it, in any of its parts, not readily accessible to their observation, and the eye of the Court, in case of the necessity of a resort to legal process for the protection of their rights.

It is not perceived that there is anything in the charge of the Court which is erroneous, or was calculated to mislead the jury. Instructions will not be deemed erroneous, merely because they do not embrace every aspect in which the law applicable to the case might have been presented to the jury. If the charge of the Court was thought to be imperfect or incomplete in its presentation of the law of the case, it was the right of the party to supply any supposed omission or imperfection by asking the proper ^instruction. Where this has not been done, the mere omission of the Court to give instructions which would have been proper, is not error. The word “ delay” was evidently employed in the charge of the Court, and was doubtless understood by the jury, in the sense in which it is used in the Statute ; not merely in reference to a question of time, but to the interposition "of obstacles in the way of creditors with the fraudulent intent to hinder and delay. In that sense, it was properly held to invalidate the assignment. (Burrill, Chap, xxn.)

Without deeming it necessary to examine more particularly at present the errors assigned, in reference to the ingenious and able argument of counsel for the appellant, on the question of the validity of the assignment, we conclude that they disclose no sufficient ground for reversing the judgment.

But in the ruling of the Court refusing to instruct the jury to find the value of the property, we are of opinion there is error. In order to render the judgment contemplated by the Statute, (Hart. Dig. Art. 2818,) it is essential that the value of the property should be ascertained. In taking the bond from the claimant, the Sheriff is required to assess the value of the property. (Id. Art. 2814.) But this, it seems evident, was intended for the purpose of fixing the amount of the bond to be given by the claimant. Where the parties acquiesce in the estimate of value adopted by the officer, it has been held that it might be taken to be the true value, for all the purposes of the rendition and enforcement of the judgment. (Wright v. Henderson, 12 Tex. R. 43.) But it has never been supposed that the Sheriff’s estimate of the value was conclusive upon the parties. The contrary opinion has been entertained. (Id. 46.) The subject will be found to have been sufficiently examined in a case decided at the last Term at Tyler, not yet reported, (17 Tex. R. 57.—Reps.) upon the construction of 7th Section of the Statute. (Hart. Dig. Art. 2820.)

As the case will be remanded, it is proper to notice the objection, that the issue was not properly made, so as to admit evidence to impeach the assignment as fraudulent. Although the Statute provides that the Court shall direct the issue to be made up, (Hart. Dig. Art. 2816,) yet the form and manner of making it are left to the parties. The issue was accordingly made, propounding the question, in the most general terms, of the claimant’s right of property in the goods. The only pleading before the Court, at the time of forming the issue, was what purports to be the claimant’s answer; in which he did not plead his title, or notify the plaintiffs, or the Court, on what title he intended to rely to maintain his claim to the property. Not having pleaded his title, the plaintiffs could not be required to plead, in avoidance of it; nor could other issues be made, than that which was made, upon the bare claim of property. The issue was what the claimant made it; and under such an issue the greatest latitude of proof must necessarily be admitted. The plaintiffs could not be required to anticipate the claimant’s evidence of title, and plead to it; they are not supposed to have known in what it consisted. When produced in evidence, they must be allowed to introduce evidence to impeach its validity.

It does appear that after the issue was made up, the claimant filed an “ amended answer” in which he pleaded specially his title. But it does not appear to have been by leave of the Court; nor does it appear that either the plaintiff or the Court had notice of it. After the formation of the issue under the Statute, the parties were not bound to anticipate further pleadings ; and unless in some manner brought to the attention of the Court, or the notice of the party, in time to reply to or take issue upon them, they cannot properly be considered as changing the issues previously formed, or as affecting the right to introduce evidence applicable to those issues. Had the claimant pleaded Ms title in the first instance, or had his amended answer been filed before the issue was made up, or had it been brought to the notice of the Court and the opposite party when filed, the latter might have been required to plead specially the matter relied on to invalidate it, in order to the formation of the appropriate issues, and the admission of evidence to impeach the title. But the case must be viewed as having gone to trial upon the issue as made up by the parties under the direction of the Court; and upon the state of the record, to admit the deed of assignment in evidence, and then to have excluded the evidence offered to invalidate it, would have operated a surprise, and manifest injustice to the plaintiffs. The objection to evidence, therefore, on the ground of its supposed want of relevancy to the issue, was not well taken.

But because the Court erred in excluding evidence of the value of the property, and refusing to instruct the jury, at the instance of the claimant, to find its value, the judgment must be reversed and the cause remanded.

Reversed and remanded.