Dooley v. Mcewing

• Decision Date: 01 January 1852
• Citation: 8 Tex. 306
• Parties: DOOLEY v. MCEWING.
• Court: Texas Supreme Court

8 Tex. 306

DOOLEY

v.MCEWING.

Supreme Court of Texas.

1852.

Writing is not necessary to convey title to a slave by contract executed; parol proof is therefore admissible to establish title to a slave. (Note 63.)

The declaration of a deceased person that he had sold a slave and given a bill of sale of him is admissible, without accounting for the absence of the bill of sale in a controversy between the administrator of the deceased and the grantee.

Appeal from Rusk. This suit was brought by the appellee to recover from the appellant a negro and his hire. The defendant claimed the negro as the administrator of Thomas W. Bell, deceased. On the trial the plaintiff introduced a witness, Dr. Lee, the physician who attended the deceased in his last sickness, who testified that a few days before his death the deceased, speaking of the disposition of his property in view of his approaching death, stated to the witness and a Mr. Waller, who had been the traveling companion of the deceased, that the negro Jim, now in controversy, belonged to McEwing, the plaintiff, who resided in Mississippi. He stated that he had sold the negro to McEwing, and had given him a bill of sale, which he, McEwing, then had. To this testimony the defendant objected, but the court overruled the objection.

The deceased at the same time further stated that McEwing, who was his brother-in-law, and with whom he, being in declining health, had resided in Mississippi, had let him have the negro to retain during his life, and he requested Waller to take the negro back to Mississippi to McEwing. There was other evidence conducing to show title in the plaintiff.

The court instructed the jury that the admission by a party that he had sold a slave and given a bill of sale of him was evidence of the fact, although the bill of sale was not produced or its absence accounted for.

The defendant, among other matters, asked the court to instruct the jury, “1st, That if the contract of sale from Bell to the plaintiff was in writing, then the plaintiff must produce that written contract or account for its loss before he can give evidence of its contents; and, 2d, That a parol sale of a slave is void under the statute of frauds.” These instructions the court refused. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Turner and Armstrong, for appellant.

WHEELER, J.

We have heretofore decided that writing is not necessary to convey title to a slave, and that the ownership of this species of property may be established by parol evidence. (Davis v. Loftin, 6 Tex. R., 489.)

The only question to be determined in this case, therefore, is whether the oral declaration or admission of a party of...