Plaintiff, as executrix,, brought suit against defendant in the District Court at the March term, 1873, to enforce the vendor’s lien on a tract of land claimed by defendant.
The petition alleged that Stilwell Box had conveyed in 1859 a tract of land in Houston county to John Cook; that plaintiff’s testator, Thomas P. Collins, received the-note for the unpaid purchase money from Box, for a valuable consideration; that John Cook, the vendee, had transferred his interest in the land in June, 1869, to defendant ; that the sale was fraudulent, intended to delay, hinder and defraud creditors ; that it was made without consideration, and that defendant, at the time of and before his purchase, had notice of the vendor’s lien then existing for the unpaid balance of the purchase money.
Defendant answered, and, with other matters, denied all collusion or fraud ; asserted that he was a bona fide purchaser for a valuable consideration ; that he purchased the land under the belief that there was no lien or encumbrance on it, and that the statements of the assignee and the holder of the note, Thomas P. Collins, that he held *247no lien on the land, had influenced defendant in the belief that the la'ud was not encumbered by any claim.
There was a verdict and judgment in favor of defend* ant, a motion for a new trial, and in arrest of judgment, which were overruled, and an appeal taken.
. Of the twelve grounds of error assigned by appellant, it is only necessary to notice seven, as they embrace or cover the remaining five.
The first ground of error is, “ The court erred in overruling plaintiff’s exceptions to defendant’s pleas and defense.” We are unable to find any such exceptions in the transcript.
The second assignment of error, “The court erred in admitting testimony of James Wootters, as shown by plaintiff’s bill of exceptions,” is not, as seen by an examination of the bill of exceptions referred to, a ca.use of complaint. The question there presented is as follows: “Defendant’s counsel offered to prove the declarations of plaintiff’s testator, Thomas P. Collins, that he held no vendor’s lien upon the land in controversy; to which declarations counsel for plaintiff objected, on the ground that such declarations were only the opinion of said Collins upon a question of law, and, further, that there were no pleadings to let in proof of an estoppel.” There was no error in overruling this objection. It was admissible as ‘evidence to show that defendant (from the declarations of Collins that he held no vendor’s lien) had been induced to believe, or strengthened in the belief, that the land was free from the vendor’s lien, as there was nothing on record to contradict it. The pleadings to let in proof, etc., were sufficient.
. The other objection raised to the evidence of Wootters, presented in the supplemental motion for a new trial, “ that Wootters was a party in interest, he having a deed to more than one-half of the land sought to be made liable, and was not competent to testify to the declara*248tions of a deceased party, in a suit with the legal representatives,” etc., should have been raised on the trial. Wootters disclosed the fact, that he held in 1867 a deed of trust on two hundred acres of the land, and was at the time of trial the owner of the same by an absolute deed from defendant. These facts could, it is presumed, have been known by an examination of the county records; or, when discovered on the trial, a motion could have been made to exclude his evidence from the consideration of the jury. This was not done, and the objection after trial came too late.
The third error complained of, that “the court erred in its charges to the jury,” is not sustained by an examination of the pleadings, the evidence, or the charge. The charge of the court briefly stated all the material points relied on by plaintiff and defendant in their pleadings, ¡and in general terms gave the law of the case clearly and -properly to the jury. An objection is made to that portion of the charge which states, “or was the conveyance made, by John- Cook to the defendant fraudulently and made without consideration;” on the ground that the court required the jury, before they could find in favor of plaintiff, to be first satisfied that the conveyance was not only fraudulently made, but likewise made without a valid consideration to support the conveyance or deed. To test the propriety of this portion of the charge, it is' necessary to look to the pleadings and the statement of facts. The plaintiff charged, and at great length repeated in her amended pleadings, that John Cook was greatly indebted — in fact, insolvent; that defendant not only knew these facts, but was also aware of the existence of the vendor’s lien; that, knowing these facts, he obtained .a conveyance from ■ his father, with a view to defeat the vendor’s lien and creditors generally,, and that he paid ¿10 consideration for the land so conveyed.
The statement of facts shows that John Cook was large*249ly indebted at the time, and owned but little property; there was also evidence which showed that defendant had paid a valuable and sufficient consideration. In view of these facts, we are of opinion that there was no error in the portion of the charge complained of. To entitle the plaintiff to a verdict under the pleadings and evidence, it was necessary for the jury to be satisfied, not only that the transfer was a fraud on the rights of creditors, but that no sufficient consideration had passed from Thomas F. to John Cook, the vendor. A transfer without consideration to defendant could not be set aside by plaintiff, save on the ground that the vendor being largely indebted — in fact, having no property worth noticing to pay his creditors at the time of the conveyance but the land in question — such conveyance by John Cook was in law a fraud upon his creditors.
If, however, John Cook had designed to perpetrate a fraud on his creditors by disposing of this land, and the defendant was not a party to his contemplated fraud, and paid a sufficient consideration, the conveyance would stand.
The fourth assignment, that “ the court erred in submitting special issues to the jury,” is not apparent from an examination of the special issues presented in connection with the pleadings and evidence. Whatever objections exist, or may be raised, against the abuses committed under this mode of instructing or charging a jury, a sufficient answer to the objection that special issues were presented is found in Paschal’s Digest, Article 1469, and cases referred to in Note 565. In this cause the judge presented the main questions in a clear and proper form, and no exception was taken to the presenting of special issues by the court.
The sixth ground, that “ the court erred in refusing special instructions asked by plaintiff,” was not error, as the special charges asked, so far as they had any *250application to the case, liad been given in the general charge.
The ninth and tenth grounds of error, ‘ ‘ that the verdict is contrary to law, and is contrary to the evidence,”are best answered by a brief statement of the facts in the case. The evidence shows that nearly ten years liad passed between the date of John Cook’s purchase from Stilwell Box to the date of defendant’s purchase; that the deed from Box to Cook in 1859 was a warrantee deed, reciting the payment in full of the purchase money by Cook; that in all that interval of time (nearly ten years) no claim of a vendor’s lien had been set up, either by Box, while he held the note, or by his assignee, Thomas P. Collins. The reverse of this was shown by the declarations of Collins to Wootters (previous to his furnishing John Cook supplies, for which he obtained, in 1867, a deed of trust on two hundred acres of the land), that he (Collins) held no lien on the land. Again, the defendant did not arrive in Texas until seven years after this debt had been contracted; and when the deed was executed in June, 1869, to show the absence of any apparent fraud or secrecy, Stilwell Box, the original vendor and payee of the note,, appears as one of the witnesses to the deed.
The defendant testified that he paid four hundred dollars for the land, he taking it with the encumbrance of the trust deed in favor of Wootters, and embracing more than the half of the tract.
This evidence was certainly sufficient to support the verdict, it being uncontradicted, or impaired in any degree, save by the fact that John Cook, when he sold the land, was owing several persons more than he was able to pay. The absence of any fraudulent intent on his part, if it were necessary for the defendant to prove a negative, is shown (by a witness for plaintiff), in a transaction in which his (Cook’s) honesty shines out in the' latter part of his life, by the voluntary placing his cotton crop in the hands *251of a merchant, with directions to sell and apply the proceeds to the pro rata payment of all his creditors. The fact seems to have been lost sight of, that the plaintiff having nothing more than a tacit equity against the-legal title of defendant, the burden of proof lay on her' to bring notice home to defendant of fraud, actual or constructive, the knowledge of his secret lien, or that John Cook being largely indebted at the time of the1 transfer, defendant had not paid a sufficient consideration. (See McAlpine v. Burnett, 23 Texas, 649.) That the jury might, under a different view of the facts, have-found for appellant, furnishes no reason for this court to1 disregard or set aside the verdict. There was evidence sufficient to sustain it; they had the witnesses before them, and all the circumstances connected with the transactions inquired into, in a clearer light and more complete in all the details than a statement of facts can ever show to an appellate court. The judgment of the District Court is therefore affirmed.
Affirmed.
Motion for rehearing overruled.