Cain v. Thomas , 26 Tex. 581 ( 1863 )

Bell, J.

The lot of land in controversy, was conveyed hy William Wood to Abbey Jane Townsend in the month of July, 1846. The note upon which judgment was recovered in the justice’s court by John Kennedy against Wood, was dated November 23d, 1853, and there was no evidence that the note was given for a pre-existing debt. There is no evidence that Wood owed any other debt, except for medical services to one Smalley, which services seem to have been rendered by Smalley in 1854. Under these circumstances, we think it was error for ■ the judge below to submit to the jury whether or not the conveyance from Wood to Abbey J. 'Townsend, made in 1846, was made in secret trust for himself, or for the purpose of defrauding his creditors. There was no evidence of.secret trust, unless the execution of the deed in blank by Abbey Jane Townsend in 1850, was such evidence; and that circumstance alone and unexplained, was not sufficient to warrant the jury in finding that the deed executed by Wood in July, 1846, was made in secret trust for himself. There is not a particle of evidence in the record, that Wood owed any debt prior to November, 1853. The jury ought not therefore to have been required to find a verdict upon issues concerning which there was no evidence to warrant a verdict.

It is certain that the record now before us does not present the whole case as it was presented in the court below; because complaint is made in the assignment of errors, that the court refused to hear the testimony of a witness, after the argument of counsel commenced, and reference is made to an affidavit of the witness to. show the materiality of the testimony. No such affidavit as that referred to is contained in the record.

It is also said in the statement of facts, that the deed executed in blank by Abbey Jane Townsend in 1850, and afterwards filled up by Wood’s executor, was read in evidence, but the deed is not to be found in the record. How far the record falls short in other respects, of presenting the real case, we are unable to determine. Under the circumstances, we will content ourselves with a reversal of the judgment, because of the error heretofore pointed out, without discussing other questions, which are not likely to present any embarrassment upon another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.