Appellants brought suit by attachment, and caused the seizure of goods in the possession of appellee, who claimed under the statute, and thus this controversy arose between them.
Marek So Marek were the defendants in the attachment suit, and, before the commencement of the suit, had sold the property seized to the appellee, in consideration of the satisfaction of a debt claimed to be due by them to appellee and of appellee’s assumption of the payment of several other debts due by Marek & Marek.
Appellee testified, that he had been a dormant partner in the firm of Marek So Marek, and had put into the. business $2,300, and that, afterwards, when he dissolved with them, they paid him for his interest $3,000, in their note, due at six months. Appellants introduced proof tending to show that appellee had not been such partner, and that he had not put money in the business. The appellee was then permitted to show, over objection, that, long before the suit, and at a time when he claimed to have been a dormant partner of the Mareks, he stated, in the absence of plaintiffs, that he was such partner. He was also permitted to prove, over objection, that, when plaintiffs were not present he had stated long before this controversy arose, that Marek & Marek were his debtors in a large amount. The issue formed by the plaintiffs’ evidence was, whether appellee’s debt was not fictitious, and the theory of its origin and consideration an invention patented by the necessity of his case. On this issue, the testimony complained of was material. It showed that appellee had the same conception of the facts before the imputed motive could exist that he had at the trial, and certainly was corroborant of his testimony. His declarations were, therefore, properly admitted. 2 Phil. Ev., p. 974; 1 Greenl., sec. 469; Commonwealth v. Wilson, 1 Gray, 337.
The appellant contends, that the sale of the goods by Marek So Marek to appellee was in fraud of the assignment laws, and, therefore, void. The statute does not compel anybody to make an assignment for the benefit of creditors. The failure of Marek So Marek to make an assignment was not, therefore, a fraud on the law. The prohibition of preferences is operative, only when an assignment is made. If the sale to appellee is an assignment, then the law cuts from it *319the void features, and passes the title, and the appellee’s claim was properly sustained. Blum v. Wellbourne, 58 Tex. 157; Keating v. Vaughan, 61 Tex. 518.
If there was no assignment for the benefit of creditors, there could he no violation of, or fraud upon, the assignment law.
The goods, when levied upon, were in the possession of appellee. This, under the statute, put upon appellants the burden of proving that the property was subject to the levy. The proof of fraud is, independent of the statute, upon him who avers it. The appellants claim that they proved the fraudulent intent of the Mareks by the introduction of the affidavit for attachment and the judgment foreclosing the attachment lien, and that this shifted the burden upon appellee to prove his innocence of the proven fraud. The affidavit and judgment in the attachment suit could not have the effect claimed. A judgment is not an adjudication of an issue that could not have been made in the case. If the Mareks had appeared in the suit against them, they could controvert the truth of the affidavit only as a basis for the recovery of damages, and, as the writ was levied upon property which they certainly had no claim to, they could not possibly have an action for damages. Cloud v. Smith, 1 Tex. 611; Bear v. Mark. 63 Tex. 298.
The judgment foreclosing the lien does not affirm the truth of the affidavit, for if, in reconvention for damages, it is proved and found to be false, the judgment nevertheless forecloses the lien.
Besides, appellee was no party to that suit, and if it was necessarily established as the basis of the judgment that the Mareks did intend 4,0 defraud their creditors in making the sale to appellee, the judgment would be no proof of the fraudulent intent in a suit against the appellee. Pratt v. Jones, Tyler term, 1885.
Several charges were asked by appellants, and refused, to the effect that appellee would have notice of the fraudulent intent of the Mareks, if a prudent person in his situation would have inquired and ascertained the existence of that intent. The refusal to give these instructions is assigned as error. The substance of them was not embraced in the charge of the court, but we think the principle of law contained in the refused charges was not applicable to the case.
In the first place, the main issue relied upon in the court below, as well as in this court, was, that appellee’s claim against the Mareks was fictitious. If it was fictitious, of course the appellee knew it, and the charge of the court, that appellee would be bound by the fraud of the Mareks, if he had notice of it, would be sufficient.
*320Secondly, it is shown by the proof that appellee knew every material circumstance put in evidence by the plaintiffs to prove fraud on the part of the Mareks. If these circumstances were sufficient to convince the jury that the Mareks intended to defraud creditors, the jury would certainly have determined that Fischl, not only had notice, but actually knew of the guilty design.
And lastly, if the debt due Fischl was bona fide, and the Mareks actually owed, as it was admitted they did, the other debts provided for in the bill of sale, the purpose of the Mareks in making the transfer to defraud other creditors, actually known by Fischl when he accepted it, would not vitiate the transaction. The law, as recognized by this court, is stated in the case of Greenleve, Block & Co. v. Blum, 59 Tex. 126, and the distinction between a creditor and purchaser in the acceptance of such transfers is distinctly announced.
A creditor may receive payment of an honest debt in property of his debtor, though he knows that the debtor’s intent in making the payment, and the necessary effect of his act is, to place the property beyond the reach of other creditors. Any other doctrine would deny to the insolvent debtor the right to prefer one creditor over another, and force him and his favored creditor to accomplish the same result through the questionable means of a friendly attachment or other legal process.
Whether appellee’s claim against the Mareks was just or not, was fairly submitted to the jury, and the verdict necessarily affirms that it was. How that and the other debts mentioned in the bill of sale, if just, could be paid by such transfer as was made, the jury was informed in substantial accordance with the principles laid down in the case already cited. Greenleve v Blum, 59 Tex. 126.
The appellants complain of the refusal of the court to charge the jury that the burden of proving the justice of his claim against the Mareks was upon the appellee. Both parties had introduced then-evidence upon that issue, and the jury were instructed to find for appellants, if they believed Fischl’s debt was fictitious. Their belief in this respect could not have been affected by the charge requested. On the other hand, under the charge, the jury had to find that the debt was just in order to find for the appellee. If it was error to refuse the charge, the appellants have suffered no injury from it. Such charge could not properly have influenced the result.
It has already incidentally appeared in this opinion, that, on the main issue, the genuineness of Fischl’s claim against the Mareks, there was a conflict of testimony. The direct evidence on the question was in favor of the appellee: on the other side, were strong and per*321suasive circumstances. That a verdict in this condition of the evidence will not be disturbed by this court, has been many times decided in each of our volumes of reports.
We find no error in the judgment, and it is accordingly affirmed.
Affirmed.
[Opinion delivered January 22, 1886.]