Ballew v. Casey

• Decision Date: 19 June 1888
• Citation: 9 S.W. 189
• Court: Texas Supreme Court
• Parties: BALLEW <I>et al.</I> <I>v.</I> CASEY <I>et al.</I>

Page 189

9 S.W. 189

BALLEW et al.v.

CASEY et al.

Supreme Court of Texas.

June 19, 1888.

Commissioners' decision. Appeal from district court, Johnson county.

This is a suit of trespass to try title, brought by appellees Casey & Swasey, a firm composed of Martin Casey and C. J. Swasey, against J. M. Ballew and his wife, M. J. Ballew, for the recovery of two lots of land in the city of Cleburne. Defendants answered, as J. M. and M. Y. Ballew, by plea of not guilty only. The case went to trial before a jury, and resulted in a verdict and judgment for plaintiffs. Defendants appealed. It was admitted on the trial that in September, 1881, defendant Ballew was the owner of the land sued for, and that it was then community property of himself and his wife, M. J. Ballew. Plaintiffs read in evidence a valid judgment, execution, and return and sheriff's deed to themselves under a judgment of the district court of Johnson county, in which Casey & Swasey (a firm stated in the petition and judgment to be composed of J. A. Casey and Charles Swasey) recovered of defendant J. M. Ballew, in November, 1881, $1,100 and costs. The sale of the land in suit was made by the sheriff on the first Tuesday in March, 1882. The sheriff's deed was made to Casey & Swasey, without further description. In October, 1881, J. M. Ballew, defendant, conveyed the land in controversy (the same sold by sheriff) to W. F. Blair as security for a debt owing him. Blair died in the winter of 1884, and willed the lots in controversy, among other things, to his wife, M. P. Blair, who, in 1885, conveyed the same to M. J. Ballew, wife of defendant J. M. Ballew, the deed reciting a consideration of $5.50. The deed from Mrs. Blair was made in obedience to her husband's request, he having stated to her before his death that the debt due by Ballew had been paid.

M. A. Oates, for appellants. Crane & Ramsey and West & McGown, for appellees.

COLLARD, J., (after stating the facts.)

Defendants applied for a continuance, which was overruled by the court, and exceptions saved, as shown by the recitals of the judgment; but the record nowhere gives the contents of the application, or the grounds upon which it was asked, except in the motion for a new trial, which cannot take the place of a bill of exceptions duly approved by the court. The error assigned in regard thereto cannot be considered. The third assignment of error cannot be considered for the same reason, that the record nowhere discloses the matters referred to except in the motion for a new trial.

Mrs. Ballew testified, in answer to plaintiffs' interrogatories requiring her to answer where and how she obtained the money she paid for the lots, and whether she acquired it by gift, devise, or descent, that "the money was her own," and "her individual money," and that she "bought the lots herself with her own individual money." The court, upon objection of plaintiffs, struck out the answers, because they stated a conclusion of law. The ruling of the court was correct. The witness had refused to testify to the facts from which the law would determine whether the property was community or her separate estate. Her statements were mere conclusions from facts, not the facts themselves; and were properly stricken out.

The court instructed the jury as follows: "If you believe that J. M....