Greenleve, Block & Co. v. Blum

Stayton, Associate Justice.— This cause was before this court at the last- term and an opinion was given reversing and remanding the cause. A motion for rehearing was filed and granted. The motion was based upon the grounds: 1st. That the court was in error in regard to the law of the case. 2d. That the evidence in the court below was sufficient to support the finding. It was contended on the former argument of the cause, as at the present term, that the fact that the appellants were bona fide creditors of Easterwood would not protect them in a purchase of goods to pay their respective debts, unless the facts attending the purchase would have protected a purchaser not a creditor; this proposition was not at the former hearing, and is not now, recognized as the law. The right of a creditor to receive property from an insolvent debtor in payment of a debt due to him, if the same be openly done, and more property is not taken than is reasonably necessary to pay the debt, although the creditor may know at the time he so receives the property that he will thereby prevent other creditors from enforcing their claims, and although the creditor may know that the debtor is prompted to give to him the preference through motives of friendship, is recognized; such reception of property, however, must be bona fide, i. e., for the sole purpose of securing the debt, and not with intent to cover up any part of the property or its proceeds for the benefit of the debtor to the prejudice of other creditors. 15 Tex., 188, 506. [127] A purchase!’ not a creditor who should buy the property of a debtor, however adequate might be the consideration which he paid, with a knowledge that it was the intention of the debtor by the sale to put the property beyond the reach of his creditors, would be a mala fide purchaser and entitled to no protection as against creditors. The rehearing was granted under the belief that perhaps too rigid and literal a construction had been placed upon the facts, and that due weight had not been given to the circumstances; and that this induced the holding that the evidence was not sufficient to sustain the finding of the court below. Neither the finding of a court nor of a, jury will be set aside if there be evidence to support it, although this court may be of the opinion that the preponderance of the evidence tends to a different conclusion. The reasons for this rule have been so often stated that a repetition of them now is unnecessary. The question in this case was as to whether or not the conveyances were made with intent which the law deems fraudulent. The court below held that there was a secret understanding between the agents of tlie appellants and Easterwood, that the excess, over the debts due to the appellants, of the proceeds of the goods, should be held for Easterwood, or that there was a secret trade for his benefit, and this with intent to hinder, delay and defraud his other creditors. If this was true, the conveyances were void as to his other creditors, even though the appellants may not have participated in the intent, for what their agents did in negotiating the transfers must be deemed, in law, their acts. The evidence in this class of cases must come largely from the persons who are concerned in the transaction, and circumstances have to be looked to, and in many cases be given a weight to which they would not be entitled in a different class of cases. In this case the circumstances under which the conveyances were made, coupled with the precedent business relationships of the parties, and the subsequent indication of willingness to restore the goods to Easterwood if he could make an advantageous settlement with his creditors, together with the fact that Easterwood evidently understood that he was to have an interest in the proceeds of the goods in the event there was more than sufficient to pay the debts due to the appellants, which may have been the result of contract between him and the agents of the appellants, or of acts intended and calculated to induce that belief, although this is denied, were evidence of such intent as the law declares will render the sales invalid. [128] It is true that the direct evidence negatives any wrongful intent, and there majr in fact have been none; yet those were matters for the court below to consider in connection with all of the circumstances of the case. One of the agents who negotiated the transfers did not testify upon the trial; what effect his failure so to do, in a case where all the facts should be fully shown, may have had in the determination of the case by the court below, we are unable to tell. Without entering' into a consideration of the testimony in detail, we are of the opinion, upon a review of the case, as we were when the rehearing was granted, that, in the former disposition of the case, due weight was not given to all the circumstances of the case which tended to show that the transaction was not what it professed to be from the direct testimony, and that there was evidence, the weight of which was for the determination of the court that tried the case, tending to show that the transfers were invalid; and in such case the disposition of the case made by the court below will not be disturbed. The judgment is affirmed. Affirmed. [Opinion delivered March 13, 1883.]