Appellee brought suit in the District Court of Nacogdoches County against W.T. Skeeters, and sued out a writ of attachment, which was levied on eleven bales of cotton, the subject of this controversy. Appellant made claim to the cotton by making the affidavit and bond as required by the statute; and from the judgment against him in the trial of the right of the property that followed, he prosecuted this appeal.
Appellee, the plaintiff in attachment, in the issues tendered, claimed both that at the date of the levy the property was its own, and also that it belonged to W.T. Skeeters, the defendant in attachment, and was subject to the levy.
Appellant alleged title in himself.
The question was raised in the court below and is presented in this appeal, whether or not the plaintiff in the attachment in this proceeding could claim that the title to the property was in itself, having attached it as the property of W.T. Skeeters, and alleging at the same time that it belonged to him. Inasmuch as, in our opinion, the evidence did not show a title in the plaintiff, we deem it unnecessary to decide this point.
After carefully considering the evidence, we are constrained to hold, that there was no sale of the cotton to the appellee prior to that to appellant and his daughter by W.T. Skeeters under which appellant claims, and that the court erred in holding that there had been such a sale. As we construe the transaction between W.T. Skeeters and Doughtie, it does not appear that there was an intention on the one part to sell to the other at that time, nor on the other to buy. This is evidenced by the facts that *Page 667 Doughtie was only permitted to realize upon the cotton by a future sale, and could not appropriate it in any other way; that he was empowered to sell only for the highest market price that could be obtained in Nacogdoches, and could not sell at any time nor for any price until he had consulted Skeeters. These facts are certainly inconsistent with the idea that the title passed to the plaintiff through the act of Doughtie as its agent; for they clearly evince the intent of the parties that absolute title and control should not pass out of Skeeters until a sale, consented to by him, had been made upon the market. A further circumstance in support of this view is, that when Skeeters proposed to sell to him Doughtie declined to buy, and then the arrangement was made upon which appellee relied as a sale.
The court below held that the facts shown constituted a sale, whether the parties intended it as such or not. In order to constitute a complete sale, the minds of the parties must have met in agreement on the one part to sell and on the other to buy. The intent that the title should pass must be gathered from the express agreement of the parties or from their acts. If there was no such meeting of the minds, there was no sale.
A subsequent statement by one of the parties, that he did not intend to sell, when the acts of both at the time of the alleged sale were such as to meet the tests applied by the law to determine whether or not the title had passed, would not control. But unless at the time the sale is claimed to have taken place the minds of the parties assented to it, there could be no sale; and if the court meant to hold otherwise, its judgment was based upon an erroneous conception of the law. But the court found that the alleged sale by W.T. Skeeters to his father and sister, under which appellant claims, was fraudulent as to creditors; and if this is true, appellee's attachment lien is of course superior to the claim of appellant.
We are not satisfied with the evidence adduced to prove the fraud. There are some suspicious circumstances, but they are not inconsistent with the account of the transactions given by the otherwise uncontradicted statements of appellant and of W.T. Skeeters. Without commenting upon them, the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded. *Page 668