Gibson v. Hill , 23 Tex. 77 ( 1859 )

Bell, J.

We are of opinion that the court below erred in overruling the motion for a new trial. The sale of the property was made by Claiborne Hill to his son, on the very eve of the rendition of judgment in favor of Gibson. The execution was issued within ten days of the time of the rendition of the judgment. It was levied within thirty days after the rendition of judgment. At the time of the levy, the negroes were found in the possession of Claiborne Hill, the vendor. The only pretence" that there had been any change of possession was, that the son lived with the father, and that the slaves were really in the possession of the son. We think, that in a case like the present, rwhere the vendor of the property and the vendee, live together, there should be the most indisputable evidence of good faith in the contract of sale, for from the very nature of things it is almost impossible to tell with whom the possession of the property does, in point of fact, remain.

In this case, the principal witness was Claiborne Hill, the. vendor. He asserted, of course, that the sale to his son was made in good faith. But he also disclosed the fact, that he made the sale because he was afraid that Gibson would subject the property to the payment of the debt due to him. It is shown that the property was worth nearly three thousand dollars. The consideration of the sale by Claiborne Hill to his son was less than two thousand dollars, and of that amount less than one thousand dollars is shown to have been paid. There is no evidence that Claiborne Hill owed the debt in Alabama, aside from his own testimony. And it is not unworthy of remark, that on the first trial of the cause, he stated that that debt had been contracted with his father before his death, while on the second trial, he stated that the debt had been contracted with the administrator of his father’s estate, after his father’s death. The Alabama debt is shown to be of ten years’ standing, and it is somewhat remarkable, that the means were never provided for its payment, until three days before the rendition of judgment in favor of Gibson. And it is not shown, that the Alabama debt, or any part of it, has been paid, or that any certain security has been given for its payment.

If the Alabama debt was a bond fide one, that fact could easily have been shown more satisfactorily than by the testimony of the vendor of this property; and other evidence that such a debt existed ought to have been produced.

This case has been twice tried by a jury. The judgment of the District Court in favor of the claimant of the property, was reversed by this court at its last term, at this place. The second trial, upon very nearly the same testimony, resulted in favor of the claimant of the property. We are loth a second time to disturb the verdict of a jury. If the case presented a conflict of evidence, we would not touch the verdict. But in our opinion, this ease presents no conflict of testimony, but a deficiency of testimony to support the verdict. For this reason, we think the court below ought to have granted another trial; and for its refusal to do so, the judgment is reversed, and the cause remanded.

Reversed and remanded.