Grigsby Const. Co. v. Colly

On Application for Rehearing.

LAND, J.

Plaintiff has filed a petition for a rehearing on the ground that the court erred in affirming the judgment in favor of the two interveners. We have carefully reviewed the pleadings and the evidence.

*1083Each of the Interveners has a written title to the property claimed by them, respectively, signed by the defendant, the acknowledged owner at the time, and it is also shown by written evidence that at the date of the attachment the defendant held possession of the property as the lessee of the interveners. The only attack by the plaintiff on these titles in its pleadings is that both were more simulations, and that no consideration passed between the parties.

Conceding that the continued possession of the vendor creates a prima facie presumption of simulation, this presumption is rebutted by the testimony of the two interveners and of the defendant that the property was actually sold and paid for as stated in the bills of sale, and was actually leased to the defendant for valuable consideration. The character of these three witnesses was not impeached in the court below, and the trial judge gave credit to their sworn statements. The fact that one intervener is the father-in-law, and the other intervener is a brother-in-law, of the defendant, is, at most, a mere suspicious circumstance.

J. A. Hamilton purchased on December 15, 1906, more than six months before this suit was instituted. He testified that he paid for the property, and the defendant testified to the same effect. We find in the record no direct evidence to the contrary.

A. Hamilton, the father-in-law, a rice planter of means residing in the state of Texas, testified that he loaned the defendant $2,900, which was paid to one Reib on account of the purchase price of the property in dispute, and that after the defendant obtained a bill of sale of the same intervener purchased the property, paying an additional sum of $1,100. The record shows a bill of sale of the same 19 head of mules, etc., from the Grigsby Construction Company by C. E. Reib, to the defendant, of date March 2, 1907, foil the price of $3,250, the receipt of which is acknowledged. On March 21, 1907, the defendant transferred the same property by bill of sale to the intervener. From what source did the defendant derive the money he paid to the plaintiff company on March 2, 1907, if not from his father-in-law?

We are not prepared to say, on the face of the cold record before us, that the three parties to these bills of sale have testified falsely. In the nature of things, the triai judge, who saw and heard the witnesses, is in a far better position than we are to judge Of their credibility.

' Rehearing refused.