Bailey v. Mills

Bell, J. It is not important to consider whether or not the [437] court below erred in overruling the motion for a continuance of the cause made by the garnishee, Nathaniel Bailey. We are of opinion that there is error in the judgment, for which it must be reversed, on other ground, and if there be any deficiency in the record of the District Court for Galveston county, that deficiency can, doubtless, be supplied before another trial. We think the court below erred in the instruction to the jury. The court told the jury that “a debtor can make no assignment of any part of his property in trust for himself. If there be a secret trust, or any express understanding, as in this case, for the" benefit of the assignor, it is a fraud upon his creditors and void.” This was equivalent to a declaration by the court that the deed of assignment, on its face, was fraudulent and void. While we think the evidence in this case was sufficient to warrant the jury in finding that the assignment was made for the purpose of hindering, delaying and defrauding creditors, it cannot, we think, be said that the deed of assignment itself disclosed the fraudulent intent in such manner as to warrant the court in pronouncing it void on its face. The court, undoubtedly, has the power to declare a deed of assignment fraudulent and void, but this is a power which ought to be exercised with great caution, and never except in a very clear case. This subject was very carefully considered by Judge Roberts in the case of Baldwin v. Peet, Sims & Co., 22 Tex., and to his opinion in that case we refer for the law governing almost every description of assignments. It will be seen by reference to that opinion, and to the cases there cited, that it is not sufficient to invalidate an assignment that it prefers one or more creditors to the others, because this the debtor has the right to do. Nor is it a sound objection to an assignment that it operates to hinder and delay creditors, for this is the usual and almost invariable consequence of an assignment. There must be a fraudulent intent, that is, an intent which the law will not permit to be carried into effect—an intent to secure some benefit to himself, or to withhold some right from his creditors beyond what the law permits, in order to invalidate the assignment. If this intent be expressed in the deed, the court may declare it to be void; but if the fraudulent intent be not expressed in the deed itself, then it can only be [438] invalidated by proof, to the satisfaction of a jury, that the fraudulent intent existed at the time of the execution of the deed. It is the practice of this court to reverse a judgment whenever there is an erroneous instruction upon a material point which may have influenced the jury in finding the verdict, although the evidence may appear to us to be sufficient to sustain the verdict; and the reason of the rule is, that it is impossible to know what effect the instruction had upon the minds of the jury; how much the verdict is due to the instruction, and how much to the evidence; and in a case of conflicting evidence, it is impossible to know that it would lead the minds of the jury to the same conclusion as the minds of this court. The judgment of the court below is reversed and the cause remanded. Reversed and remanded.