Bradshaw v. Mayfield

• Decision Date: 01 January 1856
• Citation: 18 Tex. 21
• Parties: AMZI BRADSHAW, ADMINISTRATOR, v. ROBERT F. MAYFIELD.
• Court: Texas Supreme Court

18 Tex. 21

AMZI BRADSHAW, ADMINISTRATOR,

v.ROBERT F. MAYFIELD.

Supreme Court of Texas.

1856.

It would seem that where an administrator sues to assert a right which is good in favor of creditors, but not in favor of heirs, it will not be presumed, in the absence of any allegation or proof, that there are creditors; but such fact ought to be alleged, and if put in issue, proved. Same case, 24 Tex. 481.

Verbal sales and gifts between husband and wife ought not to be admitted (even as between their heirs), unless on clear and satisfactory proof that the property was divested out of the vendor or donor and vested in the vendee or donee. 23 Tex. 452;25 Tex. 322;27 Tex. 695.

See this case as to errors in instructions, rendered immaterial by consideration of the facts.

A schedule of her separate property, filed by the wife after her husband's decease, was admitted in this case; but there was no ruling in this court on the subject.

Where the wife claims property before her husband's death, which property is in the husband's possession as usual in the case of husband and wife, and the husband dies and the wife administers on his estate, the fact of administration by her, does not deprive her altogether of the right to claim that she possessed said property adversely to the estate while administratrix; but it must be notorious that she makes such individual, adverse claim, and be brought home to the knowledge of those interested, or the circumstances must be such that it might have been known, had any degree of the diligence which persons are required to exercise in their own affairs, been used; but as against minor heirs (especially where they have no guardian), the possession could not be deemed as adverse.

Our courts will not take notice without proof, that the common law prevails in another of the United States; it requires but slight proof to establish such fact, and there are various modes in which, when once alleged, it may be established.

Appeal from Ellis. Tried below before the Hon. Nat. M. Burford.

Suit by appellee, administrator de bonis non of Sutherland Mayfield, against the appellant, administrator of Sarah Mayfield, wife of said Sutherland, to recover a slave named Randle.

The plaintiff proved, by admission of defendant, that said Sutherland and Sarah were married in Tennessee in 1837 or 1838, both having been previously married, and both having children by their former marriages; plaintiff, son of said Sutherland by former marriage, about thirty years old; said Sutherland died in Ellis county, then Navarro, in the fall of 1848; said Sarah was appointed his administratrix shortly after his death; in March, 1854, she was removed, and plaintiff appointed; Sarah died intestate in _______, 1854; defendant appointed her administrator.

Plaintiff then called a witness who testified that he knew the boy Randle; was in possession and control of said Sutherland during his life-time, until his death; never heard any one else claim said boy, until after said Sutherland's death, and then said Sarah set up a claim to him.

Another witness for plaintiff was well acquainted with the deceased parties in Ellis county, for several years before the death of said Sutherland; same testimony as first witness.

Another witness for plaintiff had known the deceased parties for thirty years; knew the boy Randle; said Sutherland owned and raised said boy.

Defendant then called a witness who testified that in 1846 or 1847, he proposed to said Sutherland to swap a negro girl for the boy Randle, and he replied that the boy belonged to said Sarah, and probably she would trade with him; witness went to said Sutherland's house to try to make the trade; said Sutherland said, “Here's the old lady, you and her for it;” but said Sarah would not part with the boy; said Sutherland told witness that he sold a negro girl belonging to said Sarah, and he purchased the boy Randle for her in lieu of the girl; the boy was in the possession of the family; this conversation was in Ellis county.

Another witness testified to another similar incident, and same declarations of said Sutherland, in Texas also.

Defendant then introduced a schedule of her property filed in the office of the clerk of the county court by said Sarah, in which she calls herself consort of the late Sutherland Mayfield, deceased; it embraced the boy Randle only, and derived her title same as stated by defendant's witnesses. It was filed in the office of the clerk of the county court, February 10th, 1854. The introduction of the schedule was objected to; objection overruled, and plaintiff excepted. It was admitted that the said Sarah had not inventoried the boy Randle as administratrix of said Sutherland.

Plaintiff then called a witness who testified “that the sale mentioned by defendant's witnesses” took place in Tennessee, before the parties emigrated to Texas; that the boy Randle was worth between $1,000 and $1,200; another witness proved the value of the boy's services. This is all the evidence.

It appeared in the usual manner, that the judge instructed the jury, without request, as follows:

Any sale of the boy Randle by the husband Sutherland Mayfield to the wife Sarah Mayfield, though perhaps good between the parties and their heirs, is a nullity as to third persons.

If the proof shows that the defendant Bradshaw, and his intestate, Sarah Mayfield, had been in the peaceable, actual adverse possession of the boy for three years before the filing of the petition in this cause, then you will find for the defendant.

The jury will look to all the facts of the case, to determine whether the possession of Mrs. Mayfield was as trustee for her husband's estate, or in her own right.

If the proof shows that after the death of her husband, Mrs. Mayfield held possession of the negro, not in her own right, but as the head of the family, as administratrix, or in any other trust character, then such possession would not be such an adverse possession as would be available under the statute of limitations. Should you find for the plaintiff, you will also find the value of the negro, and amount of his hire since the commencement of suit.

The statement of facts, at the conclusion thereof, contained a clause, as follows:

It is admitted also, that the court charged the jury among other things, that, if they found that Sutherland and Sarah Mayfield were married in the state of Tennessee, that the common law prevailed there, and that the property of the wife, that she then held or held before their emigration to Texas, became that of the husband.

Verdict for the plaintiff, assessing the value of the slave at eleven hundred dollars, and the hire at the rate of $175 per year. Remission of one hundred dollars of the value of the slave, it only being alleged at one thousand dollars in the petition; judgment accordingly, computing hire from the commencement of the suit. Motion for new trial overruled, etc.

A. Bradshaw, for himself.

J. W. Berry and E. H. Tarrant, for appellee.

HEMPHILL, CH. J.

This was an action by the appellee as administrator de bonis non of Sutherland Mayfield, the husband, against the administrator of Sarah Mayfield, the wife, for the recovery of a slave.

The judgment was for the plaintiff, and this is questioned on the several grounds that the court erred,

In the charge to the jury;

In rendering judgment upon the verdict; and,

In refusing motion for a new trial.

The first objection under the first assignment, is to the proposition by the court, that the sale of the negro in question, by the husband to the wife, though perhaps good between the parties and their heirs, is a nullity as to third persons. The appellant complains, and with some justice, that the charge as to the effect of the deed, as against third persons, was a matter extraneous to the cause, there being no allegation in the pleadings setting up the rights of creditors, or that it was made to defraud them. The question was as to the fact of sale, and the...