to show, that the debtor possessed other property: Hodge v. Morgan, 2 Mart. (N. S.) 61; Meeker v. Williamson, 4 Mart. (O. S.) 625. In Saul v. His Creditors, 5 Mart. (N. S.) 620, 621 [16 Am. Dec. 212], the court say: "Repeated decisions of this court, founded on the laws of Spain, have settled that a preference can not be given by a debtor to one of his creditors in what is called tiempo inhabil. That, where there exists an inability to pay debts, and a cession of property follows soon after, the debtor can not make any change in the rights of his creditors; that actual is the same as declared insolvency." "By the Roman law (says Mr. Justice Story), the vendor of property sold, had a privilege, or right of priority of payment, in the nature of a lien on the property, for the price of which it was sold, not only against the vendee and his representatives, but against his creditors:" 2 Story's Eq., sec. 122. Under the application of these authorities, it would seem that the case of the appellant would not be very materially aided, even did it appear that he was the creditor of his vendor: and we have seen that the laws on which they are based were of force here when the respective rights of the parties accrued. Mr. Sugden in his treatise on vendors, 2 Sug. Vend., 9th ed., 74, 75, says, that "persons coming in under the purchase by act of law, as assignees of a bankrupt, are bound by an equitable lien, although they had no notice of its existence," "and creditors claiming under a conveyance from the purchaser, are bound in like manner as assignees, because they stand in the same situation as creditors under a commission."

* * *

This doctrine is examined and questioned by Chief Justice Marshall, in Bayley v. Greenleaf, 7 Wheat. 46; S. C., 5 U. S. Cond. 229, where the subject of inquiry was, how far the vendor's lien may be asserted against creditors. Though its existence is there treated as a well-settled right, still (says the chief justice) it is a secret, invisible trust, known only to the vendor and vendee and to those to whom it may be communicated in fact. To the world the vendee appears to hold the estate, divested of any trust whatever; and credit is given to him, in the confidence that the property is his own in equity, as well as law. It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a court of chancery to the exclusion of bona fide creditors."

The doctrine here maintained, that the vendor's lien can not be asserted against a bona fide creditor, without notice, who gave the credit to the vendee, "in the confidence that the property

was his own in equity, as well as law," would indeed seem to be the more rational doctrine, and more in accordance with the spirit of natural equity which pervades our system of laws, than that laid down by Mr. Sugden, that bona fide creditors are bound by such equitable lien, although they had no notice of its existence. But to entitle the plaintiff to the benefit of this milder and more reasonable rule, he must have been a bona fide creditor; that is, he must have given credit to the vendee without notice of the lien and in the confidence that the property belonged to his debtor in equity, as well as law. It does not, however, appear that he had given any credit to his vendor, or that the latter had at any time been his debtor. He can not, then, claim the protection of the rule which forbids a secret trust to be set up against a bona fide creditor. But if he purchased with notice of the prior equity, he falls under the denunciation of being particeps criminis with his fraudulent grantor. He can not be permitted to shelter himself under his mere legal title, and there set at defiance the equitable claims of others; but his own title will be postponed and made subservient to theirs. It would be gross injustice to allow him to defeat the just rights of others, by his own iniquitous bargain: Story's Eq.

422.

The question submitted to the jury under the issue, was as to the fraudulent intent of the appellant in procuring his title. That intent was a question of fact, and peculiarly within the province of the jury: 1 Stark. Ev. 462, 475. Of the weight of evidence they are the judges. The law, it has been said, has no scales wherein to weigh the different degrees of probability; still less to ascertain what weight of evidence shall amount to proof of any disputed fact. Its business is to define, to distinguish, and to apply legal consequences to ascertained facts; but whether a fact be probable or improbable, true or false, admits of no legal definition. The law therefore refers the weight of evidence, and of the different degrees of probability to the jury, who are to be guided in their decision by their conscientious judgment and belief under all the circumstances of the case: Id. 474, 475. And where the question is one of fact, to be ascertained by the jury, from weighing the evidence and the degrees of probability, the court will not interpose for the purpose of granting a new trial, unless it be in order to remedy some manifest error. "Where a controversy consists chiefly of questions of fact, the objections to a verdict must be very cogent to induce the court to grant a new trial:" United States v. Duval, Gilp.

889. In such a case it is not enough that it is not clear that the verdict is right; but it must clearly appear that it is wrong to induce the court to set aside the verdict. For, as was said in Baudin v. Roliff, 1 Mart. (N. S.) 178 [14 Am. Dec. 181], where, as in this case, the issue was fraud, on such an issue a jury are emphatically more competent than this tribunal to arrive at the truth." And in Gregg v. The Lessee of Sayre, 8 Pet. 244, "where matters alleged to be fraudulent are investigated in a court of law, it is the province of a jury to find the facts and determine their character."

In the case before us the appellant can be in no better condition here than he would have occupied on a motion for a new trial in the court below; and indeed, that court may have possessed means of judging of the correctness of the verdict which we can not; for (as has been remarked by Chief Justice Marshall) evidence which the court has heard may make an impression not always to be communicated by a statement of that evidence. Neither courts of law nor equity, says Mr. Justice Story, insist upón positive and express proofs of fraud; but each deduces them from circumstances affording strong presumptions. We think the circumstances adduced in evidence in the case before us, afford strong presumptions against the plaintiff's title, and unexplained by him, warranted the verdict of the jury.

We see no reason to be dissatisfied with the verdict; and are therefore of opinion that the judgment of the district court be affirmed.

VENDOR'S LIEN, CREATION, EXISTENCE, AND EXTENT OF: See cases collected in notes to Hall's Ex'rs v. Click, 39 Am. Dec. 327, and Winborn v. Gorrell, 40 Id. 456.

FRAUD WILL NOT BE PRESUMED, but positive and direct proof of it is unnecessary: Davis v. Calvert, 25 Am. Dec. 282; and the burden of proof to establish it is on the party who alleges it: Nichols v. Patten, 36 Id. 713; Towsey v. Shook, 25 Id. 108. See also, Juzan v. Toulmin, 44 Id. 448. The principal case is cited in Graham v. Roder, 5 Tex. 148, to the point, that the existence of actual or positive fraud is, in general, a question for the jury to decide; and that when the question is one of fraudulent intention it is their province to judge of the weight and sufficiency of the evidence to maintain the issue.

GROSS INADEQUACY OF PRICE AFFORDS VEHEMENT PRESUMPTION OF FRAUD, when connected with suspicious circumstances or peculiar relations between the parties: Juzan v. Toulmin, 44 Am. Dec. 448; gross inadequacy of price, when the vendor is indebted, gives rise to a presumption of fraud in the sale: Bryant v. Kelton, 1 Tex. 415.

LIS PENDENS IS CONSTRUCTIVE NOTICE, and a sale pendente lite is a nullity as against the plaintiff in the suit: Burford v. Rosenfield, 37 Tex. 46, citing the principal case.

THE PRINCIPAL CASE IS CITED to the point that the supreme court will not . eet aside the verdict, when it is not clear that the verdict is not right, but that it must clearly appear that it is wrong, to authorize a reversal of the judgment on that ground, in Wells v. Barnett, 7 Tex. 587; Long v. Steiger, 8 Id. 462; Edrington v. Kiger, 4 Id. 93; Davidson v. Edgar, 5 Id. 496; Powell v. Haley, 28 Id. 56; to the point that by the Spanish law a parol sale of land is sufficient to pass a good and indefeasible title, in Sullivan v. Dimmitt, 34 Id. 114; and to the point, that the vendor of land has an equitable lien thereon, to secure the payment of the purchase money, and that this lien exists against the vendor and all subsequent purchasers with notice, actual or constructive, in Autrey v. Whitmore, 31 Id. 627.

SAMUEL SMITH V. MARIA DE JESUSA SMITH.

[1 TEXAS, 621.]

ALTHOUGH COHABITATION AND REPUTE MAY ESTABLISH A MARRIAGE in countries governed by the common law, yet it will not be admitted in the courts of Texas to annul a subsequent marriage celebrated there, while Texas was a part of Mexico, and with all the solemnities then required by the law.

PROOF OF FOREIGN MARRIAGE.-Certified copy of marriage certificate from records of Ralls county, Missouri, is not evidence in Texas to establish a former marriage in Missouri to the exclusion of a subsequent one performed according to the rites and formalities of Texas, without proof that such copy would be sufficient to establish a marriage by the laws of Missouri.

BY THE SPANISH LAW, IF A SECOND MARRIAGE IS CONTRACTED during the existence of a prior marriage, and celebrated with all the formalities of that law, and in good faith on the part of the woman, it imposes upon her all the obligations and invests her with all the rights of a lawful wife so long as she continues ignorant of any annulling impediment on the part of the husband.

SECOND MARRIAGE HAVING BEEN CONTRACTED IN TEXAS BEFORE ITS ANNEXATION to the United States, the obligations flowing from it will be governed by the principles of the Spanish jurisprudence after its annexation.

PUTATIVE MARRIAGE IS ONE WHICH, BEING NULL on account of some dissolving impediment, is held, notwithstanding, a true marriage, because of its having been contracted in good faith by both or one of the spouses. PUTATIVE MARRIAGE MAY BE CHANGED INTO A REAL MARRIAGE, by the Spanish law, by the removal of the disability.

WIDOW BY SECOND MARRIAGE WILL BE ENTITLED TO LETTERS OF ADMINISTRATION, on the death of her husband, by the laws of Texas, in preference to a son by the first marriage, although the first marriage was in force at the time of consummating the second, if the second wife had no knowledge of the prior marriage.

APPEAL from order of probate court granting letters of administration on the estate of J. W. Smith to Maria de Jesusa Smith.

Appellant claims the right to administer upon the estate as being the son of the intestate by a former marriage, and claims that the marriage of the appellee was null and void, it having been contracted during the existence of the prior marriage.

Neill and Lewis, for the appellant.

J. Webb, for the appellee.

The

By Court, HEMPHILL, C. J. (after stating the facts). provision of law regulating the rights of parties to administration, was, at the commencement of this suit, found in the first section of the "act regulating the duties of probate courts," etc., approved the fifth of February, 1840, p. 110, 4th vol. laws; and is in the following terms, viz.: "That when any person shall die intestate, the executors named in any testament shall renounce the executorship, or refuse or neglect, for the space of thirty days after death of testator, to exhibit such a testament for probate, then, administration of the succession of such intestate or such testator, with the testament annexed, shall be granted-first, to the surviving husband or surviving wife; then, the next of kin of such intestate or testator, or one of them," etc. During the progress of the cause in the lower courts the statute containing the above provisions was repealed, but the present one on the subject contains, substantially, a similar regulation. The appellant contends that the marriage between the appellee and the deceased was null, on the ground that at the time of their marriage the deceased, as the appellant alleges, had a lawful wife living in the state of Missouri, one of the United States of America, and that the appellee having never been lawfully the wife, can not claim administration as the surviving wife of the deceased.

The questions arising in this controversy, in their natural order, are: 1. Whether there is any sufficient legal proof of the former marriage, alleged to have been celebrated between the deceased and the mother of the appellant? and, 2. Whether, if the former marriage be established, and also the existence of the wife, at the time of the celebration of the latter, the appellee is not, nevertheless, under the laws of the land, to be regarded as the lawful wife of the deceased, and entitled as such to all the rights and privileges of a surviving wife?

An attempt was made to establish the former marriage by proof of the cohabitation of the parties, and, also, by evidence of its solemnization by a justice of the peace, an officer duly authorized, as is contended, by the laws of the state of Missouri