Logan Vandever's Administrators v. Freeman , 20 Tex. 333 ( 1857 )

Roberts, J.

This is a suit to set aside and cancel a deed executed by Freeman and wife for certain land to Vandever, alleged to be in trust for a purpose, which was not accomplished; or if the land had been sold to an innocent purchaser, then to reach the purchase money by a direct recovery from the purchaser.

Under the latter alternative Freeman and wife recovered a judgment, which is brought here for revision on appeal.

It is objected to this proceeding, that as a suit for land it is wrongly prosecuted in Burnett county, the land being situated in Gillespie county; and as a suit for money it must fail, because the claim was not presented to the administrators. These objections presuppose a state of case that does not exist. For the suit is not for the recovery of the land, or for the recovery of a claim against the estate of Yandever, but it is to quiet the title by a cancellation of the deed if practicable, or to trace a trust from land to money through the estate; which it is competent for a Court of Equity to do. That the deed was made in trust for some purpose is fully established. All the witnesses, four in number, state that Vandever said he had given no consideration for the deed. The witnesses to the deed state that no consideration passed from Vandever to Freeman and wife. The pleadings of defendants show or take for granted, that Freeman and wife continued in possession of the land, and pray a writ of possession to be awarded to defendants at the termination of the suit; which is a strong corroborative circumstance to establish the trust. In Mead v. Randolph, (8 Tex. R. 191,) which is very analogous to this, it was held that one witness, with strong corroborating circumstances, could establish such a trust, although the trustee was dead. This, as well as Mead v. Randolph, is distinguishable from the ease of Neil v. Keese, (5 Tex. R. 23,) and other like cases, in this, that in those the payment of the purchase money is an affirmative fact, upon which the trust, sought to be set up, is based; and therefore it must be established by other and higher testimony than by proof of the declarations of the deceased trustee. In this case the nonpayment of the purchase money by Vandever, upon which complainants seek to base the trust, is a negative fact, not susceptible of direct proof, if their allegation be true. It can only be proved by establishing circumstances corroborative of, and consistent with, the truth of their allegation; and in this point of view the admissions of the deceased trustee, well established, become appropriate, and frequently the principal testimony, to establish the negative fact. When however the admission is not only well established, but amply sustained by a strong corroborating circumstance, as in this case, the rule of evidence is complied with. (Mead v. Randolph, 8 Tex. R. 191.) The point being settled, that the deed was made upon trust for some purpose, the important question in the case remains yet to be determined; and that is, Was the conveyance made to defraud, hinder or delay creditors ?

A. O. Cooley, who seems to be an intelligent and impartial witness, states that he was called on by Vandever on two occasions, and for the purpose of enlisting his aid if necessary, he was put in possession of all the facts by Vandever, as to the consideration and objects of the conveyance. This witness shows that the object of the deed was to enable Vandever to effect a sale or other disposition of the property for Freeman and wife. He further states that he heard Vandever say that “he was convinced that a party here were making every effort to crush Freeman’s family, by getting up and urging unjust claims against him (Freeman) and attaching Mrs. Freeman’s property for them; that he knew this property was bought by her when she was Mrs. Holden, before her marriage with Freeman; but that it was better for her to sell it, and avoid expense and annoyance in defending it from claims against Freeman.” Several of the other witnesses state that they heard Vandever say “ that the deed was made for the purpose of securing Mr. Freeman from having his property taken for some illegal debt.” These remarks, thus detailed by these other witnesses, were isolated from any connecting circumstances, and are entirely consistent with the version of the matter given by Cooley, when taken in connection with his testimony. That conclusion is strengthened by the fact, that the evidence does not show that there were any debts against Freeman, or that he was ever in any way involved either in debt or in litigation, even up to the time of the trial; and also by the fact that as Freeman and wife were in possession of the land, it was most probably their homestead, and would not have been liable for the debts. And again, whenever debts are spoken of, they are represented as unjust claims, in anticipation to be prefered against Freeman, and no real creditors are shown to have ever existed.

All this testimony considered together is capable of the construction that there really were, and have been, no creditors, or that this property was not liable for Freeman’s debts; and that the deed was made in trust for the sale of the land. Phantom fears may have entered into their motives in wishing a sale to avoid the perplexities, as they imagined, of standing upon their legal rights ; but that it was not done to defraud creditors. In some such light must the Court below have viewed the case. Having been determined in favor of appellees, it is sufficient, so far as the action of this Court is concerned, that the testimony, regarded in its strongest light for appellants, presents conflicting tendencies, of a character which would forbid the reversal of that determination, on' the facts. The judgment is affirmed.

Judgment affirmed.