Cuney v. Dupree

Roberts, J. Defendant in error, as administrator of the estate of Lewis G. Dupree, deceased, brought suit against plaintiff in error to recover back some slaves which had been conveyed by Lewis G. Dupree, in his life time, and his wife, by regular bill of sale to Cuney, upon the ground that the bill of sale was, though absolute in form, only made in trust to secure certain amounts paid by Cuney for Dupree, and that the reasonable hire of the slaves had more than discharged said amounts. Plaintiff in error asked the Court to charge the jury, that if they believe from the testimony that Dupree and wife conveyed said negroes to Cuney to the intent and purpose to delay, hinder or defraud their creditors, they will find for the defendant.” Which the Court refused to give, for the reason, as it is presumed", that there was no such issue made by the pleadings. To the allegations of the petition, averring that the bill of sale was made in trust to secure money, Cuney, the [218] defendant below, answered as follows: “ For answer, he wholly denies the matters and things mentioned in plaintiff’s petition, •except that which is hereafter admitted.” “ The defendant further says, that he did in good faith and for valuable consideration, to-wit: the sum of four thousand five hundred dollars, purchase absolutely the slaves mentioned in plaintiff’s petition and paid the same,” &c. From this mode of pleading Cuney proposed to show that it was not a trust, by showing that it was, as it purported to be, an absolute sale made in good faith and on valuable consideration paid. He does not deny all the.facts in the petition, but only such as are inconsistent with the sale being absolute, in good faith, and upon valuable consideration. Can he then be allowed to show that the bill of sale was absolute and binding for exactly the opposite reason, that it was not made in good faith ? That would pervert the very •object of pleading, which is to give notice of what the party Telies on in the maintenance of his rights. Had there been an unqualified denial of the facts in the petition, this point would present more difficulty. In the case of Griffin v. Chubb, (7 Tex. R. 613,) it is said that “ when it is proposed to disprove the plaintiff’s case, by proving independent facts from which the conclusion adverse to the plaintiff is to be deduced inferentially, it may in general be necessary for the defendant to plead specially such independent facts.” Here the fact to be disproved is, that the sale was on trust to secure money. The mode of disproving that, or of defeating its validity, as contemplated in the charge- asked, is by showing an additional fact—the fraudulent intent, as to creditors, with which the sale was made—by which additional and independent fact the sale, though intended as a trust, became ¡absolute in legal effect. We think the Court properly refused the charge. Another important question arises upon the evidence, which [219] is whether or not the trust, being verbal, was established with sufficient clearness and certainty. For the greater security of property, our law requires contracts for the sale of lands and slaves to be made in writing. (Hart. Dig., Art. 1451.) It has been held that, although reduced to writing, a verbal trust may be shown to have been annexed to the contract. To be enforced, however, a rule of equity requires that it shall be established with clearness and certainty. Otherwise men would have no security that contracts would stand after they had been reduced to writing with the greatest consideration and solemnity. So guarded have the rules been on this subject, that such verbal trust will not be held to have been clearly and certainly established by the direct testimony of one witness, swearing to the admissions of- the alleged trustee, unless his testimony be confirmed by corroborating circumstances. (Miller v. Thatcher, 9 Tex. R. 482 ; Mead v. Randolph, 8 Tex. R. 191; McClenny v. Floyd, 10 Tex. R. 159.) One witness, John N. Dupree, brother of the deceased, swore that a few weeks after his brother’s death, Ouney admitted to him that he had not paid for the negroes, that he had them on hire, and that alter they worked out what he had advanced and was bound for, he would obligate himself to return the negroes to the children of L. G. Dupree. In corroboration of this, it was shown by the depositions of Bradbury that Ouney did not pay the consideration as alleged in the bill of sale, but that after calculating certain debts that Ouney agreed to pay or had paid, he gave to Dupree his draft for the balance. It is very certain, however, that though this seemed at the time of the sale to this witness, who drew up the papers, to be the true nature of the transaction, it was not; for Ouney in making out his account in his amended answer, showing the items of payment by which the sum of four thousand five hundred dollars was made up, does not insert or refer to this draft. The same witness says that he [220] made out a list of the debts to be paid by Cuney before drawing the draft for the balance of the price It is also clear that that list of debts was not the consideration, for Cuney shows that in order to make out the debts amounting to the price of the negroes he includes the burial expenses of Dupree and his wife, and the expenses of their son John at school a year or two afterwards. Of course these could not have been placed in the list by the witness Bradbury. The fact then that we find Cuney paying amounts for Dupree and his family, that could not have been anticipated at the time of the trade, and claiming those amounts to have been paid as part of the purchase money of the negroes, is a strong corroboration of his admission that the sale was a trust, and was not what it purports to be, an absolute sale with a consideration already paid. There are other minor matters tending in the same direction. This conclusion too is much favored by its reasonableness. That a man having this much property, easily convertable into cash, should mortgage it to relieve himself from debts not near equal in amount to the value of the property, is very reasonable. That he should sell it upon an indefinite credit, for an amount not more than equal to its fair value, and allow the purchaser to have his own time in lifting debts contracted and to be contracted, and thereby waste it all away, is a transaction out of the usual course of things entirely, and so much counter to common experience as not readily to be credited. Tne true criterion in this case is not alone, has the trust been established by a particular amount of testimony, to-wit: admissions proved by one witness and corroborating circumstances ; but also does this amount of evidence, after being-adduced, make it reasonably clear and certain that the verbal trust was made as alleged. We think that it does. Judgment affirmed.