<p>Error from Colorado. Tried below before the Hon. James H. Bell.</p> <p>The plaintiffs brought this suit as the heirs-at-law of Delilah Strahan, deceased, the wife of the defendant, who died in the year 184-4, for a partition of a certain tract of four hundred acres of land, which was conveyed by deed, during the coverture, by Patrick and Polly Reels to said .Delilah, on the 24th day of February, 1844. The original petition filed by one of the plaintiffs, Watkins‘L. Smith, on the 12th day of September, 1858, alleged his marriage with Sarah Francis Strahan, the daughter of the defendant and said Delilah, in the year 1846, who died in the year 1849, leaving a son, who also died in the year 1852, and said Smith claimed in right of his said child, and prayed that the three other children of said Delilah be made defendants, two of whom being minors, appeared by guardian, and answered, joining in the prayer of plaintiff. The adult heir and defendant, Catherine Bailey, afterwards dying, her surviving son, William J. Bailey, by guardian, answered, and joined in plaintiffs’ prayer for partition of the land.</p> <p>The defendant by his answer, and various amended answers, pleaded that the land was purchased by him, and paid for with a negro girl and a horse, his own separate property; that the conveyance to his wife was procured by himself for his own benefit, to be held by her in trust for his use and benefit. Further, that after the death of his wife Delilah, the plaintiff Smith and his wife set up a claim to a portion of the land as their inheritance from said Delilah, and threatened to institute legal proceedings for its re-, dovery, which produced difficulties and ill feelings in his family; to settle which, he gave, on the 20th day of March, 1849, to said Smith and his wife $150, for all their interest in the land as an adjustment of the matter, and they executed to him, in writing, fheir release in accordance with said contract, which was set forth as a part of the answer. The plaintiff replied, denying the alleged trust, and charged that the conveyance was a gift by the defendant to his wife, and denying that he had any other object in view in causing the conveyance to be taken in the name of his wife, than of making a donation; alleging that the same was made to cheat, wrong and defraud his creditors, and to hinder and delay them in the collection of their debts. He also denied, under oath, the execution of the- alleged release, and charged that it was a forgery. The defendant, by further amendment, renewed the allegations as to the trust created as aforesaid, and stated his object to be his bad health at the time, and, in the event of his death, to enable his wife readily to control .the title to the land, without being subject to the jurisdiction of the probate court, and thus enable her to remove, in that event, to her native State, and in case he recovered, still to hold the property in trust. He suggested' occupation in good faith, and valuable improvements.</p> <p>In rebuttal of the plaintiff’s testimony, the defendant, W. H, Strahan, introduced as a witness Thomas Brown, who testified that Strahan and his wife moved from Georgia to Eastern Texas in the year 1840, and two years thereafter moved to Colorado county. That W. H. Strahan had been in bad health in Eastern Texas; that shortly before the purchase was made of the land, he told witness that when he bought a place, he intended to have the deed made to his wife, because he did not expect to live long, (his health still being bad) and he wished to arrange it so that his wife could sell it after his death, and move back to Georgia; and desired him, in that event, to take her and the family back; that he did not want the probate court to have anything to do with his property. The plaintiff and" co-defendant of W. H. Strahan objected to the testimony as to the declarations of the defendant prior to the execution of the deed to Delilah, because the witness stated, on cross-examination, that he did not know anything about the execution of the deed to Delilah Strahan from Patrick and Polly Reels, and was not present at the time, and did not know when it was executed; and also because Strahan’s declarations, as recited, was not evidence to rebut the presumption of a gift to his wife, which objection was overruled.</p> <p>John Wright, a witness in behalf of the defendant, W. H. Strahan, testified that in the year 1844, when the defendant was sick, (his wife being present,) he spoke of the purchase, and taking the deed in the name of his wife. Witness asked the reason therefor, and whether he was in debt. To which his wife replied, “ no; but Mr. Strahan could not be convinced but that he was going to die before long; and that the deed was taken in that way, that she should have no trouble in settling up the estate.” The witness recited the remarks then made 'by Strahan corroborative of the foregoing by his wife; animadverting upon the management of estates by probate courts, and also stating that he had engaged Brown to take his wife and family back to Georgia, in case of his death. The plaintiff and the said co-defendants objected to the declarations of W. H. Strahan, because they were made long after the execution of the deed to his wife; and to the declarations of the wife, because she was not prejudiced by them, having been made in the presence of her ■ husband, and corroborative of his statements—to do so was consistent with her duty as a wife; and because the declarations of both constituted no rebuttal of the presumption of law that the land was a gift to the wife. The objections were overruled.</p> <p>The defendant, W. H. Strahan, read in evidence an instrument of sale or release from Watkins L. Smith and Sarah F. Smith, dated 20th day of March, 1849, to W. H. Strahan, of their interest in the tract of land, for the sum of f 150.</p> <p>■The plaintiff introduced in rebuttal a lease of an hundred acres of the tract for eight years, and parol evidence to show that the release from himself and his wife referred to his interest under the lease, and not to that derived under the said Delilah Strahan by descent; which fact he had also pleaded. It was proved that the defendant was in debt in Georgia at the time of his departure, and testimony was introduced tending to prove that they have not been settled; and also his declaration to a witness, previous to the purchase, that, “ he was going to fix things so that they could not touch his property; that he had enough of security debts to pay, and did not intend to pay any more.”</p> <p>The court charged the jury as follows:</p> <p>“ The general rule of law is, that where one pays for property and has the deed made to another, the person to whom the conveyance is made holds the property in trust for that one who paid for it.</p> <p>“There are some exceptions to this general rule; and one of thorn is, where a man purchases property and pays for it with his own means, and has the deed made to his wife; in such ease, the presumption is, that he intends the property to be his wife’s, and to be held by her as her own property, and not in trust for him.</p> <p>“ 3h this case, therefore, it being admitted by the pleadings, and in the evidence, that W. H. Strahan purchased the- land in controversy, and paid for it with his own means, and that the deed was taken in the name of Delilah Strahan, the wife, the law raises the presumption that W. H. Strahan intended that the land should be a gift to his wife, to be held by her as her own property, and not in trust for him.</p> <p>il This presumption of the law, however, may be rebutted by proof, which shows that although the deed was taken in the name of Delilah Strahan, the wife, it was not intended by the husband as a gift to her; but that it was his intention that she should hold the land in trust for him.</p> <p>“ In deciding this question you must remember that the legal presumption exists, that it was Mr. Strahan’s intention to make a gift of the land to his wife. You cannot, therefore, from the mere fact that Strahan paid his own means for the land, indulge any presumption as to what his intention'was, other than the presumption which the law raises. To find out what his intention was, you must look for evidence beyond the mere facts of the payment of his own means for the land, and the execution of the deed in his wife’s name. To ascertain the intention of the parties at the time of the execution of the deed to Mrs. Strahan, it is proper to look to the acts and declarations of the parties at the time of the execution of the deed, and before that time, while the negotiation for the purchase of the land was depending.</p> <p>“ The declarations of W: H. Strahan at the time of the execution of the deed, and during the negotiation for the purchase of the land, are competent testimony both for him and against him, to show what his intention was. His declarations made subsequent to the execution of the deed, are competent evidence against, but not for him.</p> <p>“The declarations of Mrs. Strahan, made at anytime, are competent as evidence showing that she held the land in trust for her husband; but her declarations that the conveyance was not made to defraud creditors, are not competent evidonc.e to disprove the legal presumption that the land was intended by her husband as a gift to her.</p> <p>“ The possession of the land by Strahan, claiming it, and using it as his own, his wife being dead, and his children being minors; and the execution of a lease or mortgage of the land, in which he describes it as his own, are not competent evidence, unsupported by other testimony, to rebut the presumption arising from the execution of the deed in his wife’s name—though these circumstances may be considered by you along with other evidence.</p> <p>“These rules as to the competency of evidence to disprove the legal presumption that the conveyance was intended as a gift to the wife, will be observed by you in your deliberations, and observing these rules, it is for you to say, upon a consideration of the whole evidence, whether or not W. H. Strahan intended, when the deed was made in his wife’s name, that she should hold the land in trust for him.</p> <p>“ If you find from the evidence, that it was his intention that his wife should hold the land in trust for him, you will then have to determine whether or not, this trust was intended or created in good faith.</p> <p>“ If you believe, therefore, from the evidence, that .the intention of Strahan, at the time of the execution of the deed to his wife, was that she should hold the land in trust for him in good faith, and not for the purpose of putting his property beyond the reach of his then creditors, you will so find by your verdict; and if you so find, you need find nothing further, because that will dispose of the whole case.</p> <p>“ If you believe, however, that the conveyance was made to Mrs. Strahan with the intention, on the part of W. H. Strahan, to put his property beyond the reach of his then creditors, you will so find by your verdict; and in that case, the law does not permit the trust in favor of W. H. Strahan to arise, but as against him, vests the estate in the land absolutely in the wife.</p> <p>“ If you find that it was W. H. Strahan’s intention that the land should be a gift to his wife, or if you find that the conveyance was made to the wife for the purpose of defrauding his then creditors, then the minors, William T. Strahan and Cincinnatti Strahan and the child of Bailey, are entitled to recover against William H. Strahan. But it may not be so with Watkins L. Smith; as far as he is concerned, if you. find that the land was intended as a gift to Mrs. Strahan, or that the conveyance was made to her to defraud Strahan’s creditors, then you will have to decide whether or not, Watkins L. Smith executed the conveyance to W. H. Strahan, which has been shown to you in evidence. If he did execute it, he is bound by it, and cannot recover. If he did not execute it, then he is entitled to recover, if the minors are so entitled. That is to say, if you believe from the evidence, that Watkins L. Smith did not execute the paper signed by himself and his wife, and if you believe from the evidence that the land was a gift to the wife, or that the conveyance was made to her to defraud creditors, then Watkins L. Smith and the three minors are entitled to recover against W. H. Strahan.</p> <p>“ If the intention of Strahan at the time of the execution of the deed to his wife, was that the wife should hold the land in trust for him in good faith, and not to defraud creditors, then none of the parties can recover against W. H. Strahan; and if you believe these facts, you may find a verdict in favor of W. H, Strahan against all the other parties.”</p> <p>Verdict for 'the defendant, W. H. Strahan, on which the court decreed the title to the land in controversy to be in said Strahan. Motion for a new trial by the plaintiff and the minors, overruled.</p>
