Davis v. Loftin

• Decision Date: 01 January 1851
• Citation: 6 Tex. 489
• Parties: JAMES B. DAVIS AND WILEY P. DAVIS v. LOFTIN.
• Court: Texas Supreme Court

6 Tex. 489

JAMES B. DAVIS AND WILEY P. DAVIS

v.LOFTIN.

Supreme Court of Texas.

1851.

Where rulings of the court below relate to questions which are superseded in their application to the particular case by some principle which underlies them, they are immaterial, and therefore can afford no ground for reversing the judgment. (Note 83.)

Where the statement of facts was obviously imperfect, and the clerk, in making up the transcript, certified that two pages of it had been lost, and that if they had not been lost it would have appeared that a certain deed which he transcribed was admitted in evidence: Held, That the statement of the clerk respecting the contents of the statement of facts could not be received; but if there was reason to apprehend that injustice had been done upon the trial, it might become necessary to inquire what remedy is left to the party, and whether or not the judgment might not be reversed upon apparent or probable error.

The record of a bill of sale of personal property in a county other than that wherein the property “remains” is not constructive notice to a subsequent purchaser.

Instructions must be taken and considered in reference to the evidence. That an instruction be correct in its application to the particular case is all that is required. So, also, the refusal of an instruction good in itself may be justified on the ground that it went beyond the particular case made by the statement of facts.

Where the owner of property makes a conveyance, absolute in form, with a parol trust annexed, a subsequent purchaser from the donee, without notice of the trust, would not be affected by it.

It seems that it is the province of the court to arrest the argument of counsel when they propose to insist that the jury should find a fact in support of which no evidence has been introduced.

An impossible date raises a presumption of ante or post-dating, not of alteration.

The alteration of a bill of sale of a slave by the vendee would not affect a subsequent purchaser without notice.

A bill of sale is not necessary to pass the title to a slave. (Note 84.)

Where the court was requested but refused to charge the jury that a certificate of a clerk of the County Court stating that an instrument had been filed in his office for recording, given prior to its probate, was not evidence of any fact: Held, That whether such certificate was evidence of any fact was an immaterial inquiry, to which the court was not required to respond.

Appeal from Rusk. The appellee sued the appellant to recover the possession of a negro alleged to have been purchased by the plaintiff of one Monroe, and to have been “decoyed, taken, and carried away” from his possession by the defendants, and by them wrongfully withheld from the plaintiff, said negro being the property of the plaintiff, of the value of eight hundred dollars.

The defendant, Wiley P. Davis, answered, (at the Fall Term, 1848,) disclaiming the ownership of the negro, but stating that he formerly did own him but sold him in 1845 to one William G. Davis. He denied that he decoyed the negro from the possession of the plaintiff, or that the plaintiff lost the possession of the negro as alleged by his advice or procurement. At the Spring Term, 1849, he amended by a general denial and a special denial of possession.

At the Fall Term, 1848, James B. Davis answered, stating that it might be true that the plaintiff did purchase the negro from Monroe as alleged, but he denied that he thereby acquired any right to the negro, for that Monroe was not the owner. He further alleged that he (the defendant) “is the owner of the negro by purchase from one Gideon, for a valuable consideration, on the 8th day of January, 1848.” He also denied that he decoyed or caused the negro to be decoyed from the possession of the defendant, or that the plaintiff was deprived of the possession of the negro by his advice or procurement. He did not admit that the plaintiff had possession, as alleged; but if he was in possession, he alleged it was by means of fraud practiced by the plaintiff or some other person upon the rights of the defendant. He also amended at the Spring Term, 1849, by a general denial.

Upon the trial (at the Fall Term, 1850) the plaintiff offered to read in evidence a bill of sale of the negro from William G. Davis to Richard Meek, dated May 18, 1847. The defendant objected to the reading of the bill of sale, without other proof of its execution than the certificate of the clerk before whom it was proved for recording, on account of the omission of the certificate to state that the witness was a subscribing witness to the bill of sale, and had signed it as such at the request of Meek, the maker. The court overruled the objection and permitted the bill of sale to be read in evidence.

It appeared that the words “State of Texas, county of Milam,” at the commencement of the bill of sale, had been written very near the top of the paper on which the bill of sale was written, and that over these words were written the words and figures “May the 18th, 1847,” “which last-mentioned words the defendant insisted before the jury were interlined after the bill of sale was executed and delivered and without the knowledge or consent of the said William G. Davis.”

The plaintiff then gave in evidence a bill of sale of the negro from Richard Meek to Monroe, dated on the 21st day of June, 1847, which was read to the jury without objection. He then offered to read in evidence a bill of sale from Monroe to himself, dated on the 16th day of August, 1847; to which the same objection in substance was made as to that from Davis to Meek. The court overruled the objection, and the instrument was read to the jury.

The plaintiff then proved by the deposition of Lewis Meek the purchase of the slave by Richard Meek from William G. Davis in Milam county in May, 1847, and the payment of the purchase-money, $900, for the negro in controversy and a woman named Harriet, bought at the same time. The plaintiff then proved by the deposition of John J. Loftin that Monroe had the negro in possession; that he took him to the plaintiff in Grimes county and traded him to the plaintiff, receiving a negro girl and one hundred dollars from the plaintiff in exchange and payment for the boy; that the negro remained in possession of the plaintiff for about four months, and was stolen or ran away on the 6th or 7th of December, 1847. The plaintiff then offered to read the deposition of one John McLennan to prove that he, McLennan, had at one time in his hands as an officer certain attachments, which he levied on the negro in controversy as the property of Wiley P. Davis; that William G. Davis claimed the negro; that Richard Meek discharged the attachments, and that he delivered the negro to him, Meek, upon his producing a bill of sale and order to that effect from said William G. Davis. The defendant objected to the reading of the deposition, but the court overruled the objection.

The defendant then introduced a witness, John Davis, the substance of whose testimony is that some persons once came to his house in Burleson county and compelled him to give them an order on William G. Davis for the negro in controversy in place of one which had been hired out in Milam county and had run away; that the negro was delivered to one Frazier, who died shortly afterwards, and his administrator hired out the negro; that Richard Meek applied to the witness for a bill of sale to enable him, Meek, to go and procure the negro for the witness; that the witness declined giving the bill of sale, telling Meek the negro did not belong to him; that afterwards William G. Davis came to his (witness's) house, and Meek applied to him for a bill of sale, promising to go into Milam county, where the negro was in the possession of Monroe, and get and deliver him to said William G.; that the latter agreed to give him the bill of sale for that purpose, and that they started for the residence of Meek, in Milam county. The witness did not go with them, and did not know whether the bill of sale was ever executed according to the agreement of the parties. At this point in the statement of facts there occurs a note of the clerk, stating that pages 11 and 12 of the original statement of facts had been lost. The statement of facts then proceeded with the testimony of a witness whose name did not appear; but from a reference to his testimony in a bill of exceptions in the record it doubtless was William G. Davis, who was proceeding to testify respecting a bill of sale of the negro in question, made by himself in Cherokee county. He says he executed the bill of sale in Cherokee county and left for his brother John's, on the Brazos; that he was from five to seven days on the way; that he proceeded from his brother John's to Meeks's, in Milam county. The defendant then asked the witness to state the consideration and object for which he executed the bill of sale to Meek, and how long it was after he executed the bill of sale to Gideon in Cherokee; to which the plaintiff objected, and his objection was sustained by the court. The defendants then read a bill of sale from Gideon to the defendant James B. Davis, bearing date on the 8th of January, 1848.

After the statement of facts the clerk inserted a note that believing the bill of sale on file from William G. Davis to Gideon, bearing date on the 13th day of May, 1847, was a part of the statement of facts, and would so appear, if pages 11 and 12 of that statement could be found, he inserted in the transcript that bill of sale, which purported to be a bill of sale from the said William G. Davis to Gideon for several negroes, including the one in controversy, executed in Cherokee county on the 13th day of May, 1847. There was a bill of exceptions to the rulings of the court upon the admissibility of evidence.

The court instructed the jury that “if the possession of the negro did not accompany the...