Bones v. Printup Bros. & Co.

Jackson, Justice. Printup Brothers & Co. levied an attachment on a lot of furniture as the property of J. W. Bones, copartner of J. S. Bones & Co., it was claimed by Mrs. Maria Bones, the mother of defendant in execution, was found subject, the claimant moved for a new trial, it was refused, and she excepted. There are three views in which the claimant insists that a new trial should be awarded her : First, because the court gave the plaintiffs the right to conclude the argument; secondly, because of errors in the charge, and thirdly, because the verdict is against the law and the evidence. 1, The claimant’s counsel was asked by the courr, at the close of. the testimony, whether he claimed that the claimant was in possession at the date of the levy, in reply to a demand he made for the conclusion? to which he replied that he did claim that she was in possession ; thereupon the court gave the plaintiffs the right to open and conclude. Under the facts the court did not err. The plaintiffs took the burden in the outset of the case and carried it all through the trial. They carried the onus of showing possession and title in the defendant in attachment, and after having done so, it was too late for claimant, even if the possession in defendant in execution had not been contested, to insist on the right to conclude. But he did contest the possession. [757] He replied that it was in the claimant, and it would seem clear that putting thus the same onus of showing title in the defendant on the plaintiff in the argument which he had permitted him to carry in the introduction of testimony, he deprived himself of all right to conclude the argument. 2. Construing the portions of the charge excepted to in the light of the entire charge, we see no error which could hurt the claimant. The only exception which struck us as forcible is that which makes the judge say that “an assignment made by an insolvent debtor of all his property for the benefit of part of his creditors is not allowed by the laws of this state;” but in referring to the entire charge, which is 3ent up in the record, we find that the judge adds these words, “ but a party in debt may sell a part of his property to pay one of his creditors.” So that the exception is to part of a sentence, and we append above the balance, and so completing the sentence, as we understand it, it is the law. The judge did not mean that an insolvent could not sell all bona fide to pay one creditor, for in a few sentences following he adds: “ He can make a sale of his property to a creditor; he can divest himself of every article he owns, and no other creditor has a cause of complaint if it was for a valuable consideration and in good faith.” This is the substance of 1952nd and 1953rd sections of the Code, and the court did not err in reading them and so construing them ; and the jury, we think, must have understood him. In this case there was no question of assignment for the benefit of a part of the creditors; but it was a question of sale to one creditor, and was that sale bona fide and for value ? We think that the testimony authorized the charge in respect to the dispute about the date of the transaction between mother and son and mother and sons, and other charges criticized for like reasons; and considering the charge as a whole, and reading each sentence in the light of the context, we see no material error therein. What are badges of fraud, and how they may'be explained, is fully and fairly set out in the charge. [758] 3. The question was one of intent — fraud or no fraud — a question peculiarly the province of the jury to decide; 'and as that tribunal has decided it, and the judge who tried it has approved the finding, we do not feel authorized to set aside the verdict. There is evidence to sustain the verdict, and therefore it is not contrary to law. The judgment is therefore affirmed.