Duffell v. Noble

• Decision Date: 01 January 1855
• Citation: 14 Tex. 640
• Parties: ANSIMUS DUFFELL AND WIFE v. JAMESON S. NOBLE, ADM'R.
• Court: Texas Supreme Court

14 Tex. 640

ANSIMUS DUFFELL AND WIFE

v.JAMESON S. NOBLE, ADM'R.

Supreme Court of Texas.

1855.

See this case as to proof of delivery in case of a parol gift of an infant slave.

In view of the whole evidence we see no reason to apprehend that the jury were misled by anything contained in the charge given or to suppose the result would have been different had the instructions asked by the defendant been given.

After having given the law in charge to the jury as applicable generally to the evidence, we think the court might refuse to charge in reference to particular parts of the evidence in detail. We see no reason to apprehend that the jury where unapprised of the legal principles embraced in the instructions asked or that they did not give to them sufficient consideration in making up their verdict.

The deposition of the witness Bruce, in answer to the fifth interrogatory, (excluded,) was perhaps liable to criticism and objection, as being too broad and general in its statements, but the objection to the interrogatory seems rather critical than sound. The deposition, however, was objectionable in the form and manner of deposing to the facts, and we are not prepared to say there was error in excluding it. Had a new trial been awarded, we see no cause to suppose that it would have been attended with a different result; and and upon the whole, we are of opinion that the court did not err in refusing a new trial, and that the judgment be affirmed. (Note 94.)

Appeal from Sabine. Suit by Ansimus Duffell and Martha, his wife, against Jameson S. Noble, administrator of Lydia Loving, for the recovery of a slave girl named Missouri, aged about fourteen years. Commenced January 28, 1852.

The following is a statement of all the evidence:

It was proved on the trial by plaintiffs that the defendant, at the date of the institution of this suit, was in the possession of the negro girl Missouri, holding her as the administrator of the estate of Lydia Loving, deceased. Mr. Duffell, being sworn, said that he was a son of the plaintiff; that he was twenty years of age next summer; that he was acquainted with the negro girl Missouri, and had known her from her childhood. She was born at the house of his father and mother, in the State of Alabama; she was born in December, 1838. He has frequently heard his grandmother, Mrs. Lydia Loving, say that she had given the girl Missouri to his mother when said girl was an infant, but a few hours old, indeed before the child was dressed after its birth. He had never heard his grandmother claim the girl as hers or say that she belonged to any one else than witness's mother. At the time of the birth of the child, and previous to that time, and for about four years afterwards, his grandmother lived in the house of the plaintiff. He had heard his grandmother say that the reason of giving the child to his mother was on account of his mother's attention and care in raising and taking care of the other negro children. The child, (Missouri,) during the four years in which they all resided together, as far as it was able to be of any service, did as much, perhaps, for his grandmother as for his mother; his mother had the control and trained the child. When, however, his grandmother left his mother's and father's, it was understood that the child was to remain with his mother, but the mother of the child, who was an obstinate and high-tempered old negro, made a great fuss about it, and declared she would not leave the child; and his grandmother and mother, after consulting about the matter, it was concluded that the child and mother should go together with Mrs. Loving, (his grandmother.) His grandmother moved off about nine miles, where she lived about a year, and then moved to Texas. Witness was born in 1834; knew nothing of the gift of his own knowledge, but from the statements of his grandmother. All the negroes his grandmother had at the birth of the child Missouri, were Reuben, Mary, and Nelly, (the last the mother of the others and Missouri.) These negroes were all together on the place where his father and mother lived; his mother and father then had no negroes; his grandmother lived with his father and mother; the negroes waited and attended upon all the family without distinction; they were then (during the four years spoken of) living in Sumpter county, Alabama, when after that time she moved to Gainsville, (nine miles off,) kept house by herself, and took all the negroes with her. In the year 1845 she moved to Texas, and his grandmother visited his mother before leaving, and declared her intention of moving, and endeavored to prevail on his mother to follow her to Texas, and told her that when she came out to Texas the child is yours, (his mother's,) and you can take her away. She then moved to Texas, and in 1846 his mother and father moved to Louisiana, Rapides parish. In 1846 his grandmother visited his mother, and invited her (his mother) to come to Texas, and when she should do so she would make a title to her to the girl Missouri. He said his father hired the girl Mary from Mrs. Loving for the year 185??. She has been and still is in the possession of my father and mother in the parish of Rapides, Louisiana. Mary has a child born since she has come into the possession of my father. His grandmother visited his mother twice since she (Mrs. Loving) came to Texas, and on both occasions brought with her a negro girl to wait on her; that his grandmother kept possession of Missouri up to her (Mrs. Loivng's) death, excepting the period of four years succeeding Missouri's birth, which death occurred about November, 1851. Missouri was generally called “Puss.”

William Mason, being sworn, said that Lydia Loving came to this country in the year 1845; she brought with her four negroes named Reuben, Mary, Missouri, and Nelly, which were all the property she had here. He has been, from 1846 to the present time, assessor and collector of taxes for this county; he called upon her (Mrs. Loving) in that capacity in 1846 for her taxes; she said she thought she ought not to pay taxes on the girl Missouri, because she was her daughter's, (Mrs. Duffell,) as she intended her for her at her death; he said the heirs of Mrs. Loving are Mrs. Duffell, (her daughter,) the children of Manuel Loving, (her son,) and the children of Mrs. Ard, (her daughter,) and heard Manuel Loving speak of his brother in Georgia; she had possession of the girl in question and controlled her as her own, and paid taxes on her from the time she came here till she died. I never heard of any one setting up a claim to her during Mrs. Loving's life. Value of the girl $600 or $700; hire worth $7 or $8 per month.

F. M. Weatherell, sworn, said he knew the girl Missouri; she was in possession of the defendant at the date of the institution of this suit; she was in possession of Mrs. Loving from 1845 until she died. The negro is still living.

James Mason, being sworn, said he was a near neighbor of Mrs. Loving; she had possession of the girl, and claimed her and controlled her as her own; never heard the subject of title or right to any of the negroes brought up or discussed; she used them all alike; they were all in her possession, and treated and controlled alike by her; he never heard any one set up any claim to the girl until the institution of this suit.

Mrs. Culbert, sworn, said she lived near Mrs. Loving and was very intimate with her; had often heard her speak with reference to the ownership of the girl Missouri; she has several times heard her say that she had given the girl to Mrs. Duffell when it was an infant; had never heard her make any other declaration in regard to the ownership of the girl. During the summer of 1851 she said that if she lived she was going to Louisiana to visit her daughter, Mrs. Duffell, and intended to take with her the girl Missouri and deliver her to Mrs. Duffell. She said she had never heard Mrs. Loving say that she had delivered to Mrs. Duffell the negro girl, and had never heard her claim the negro as her own, but always spoke of her as Mrs. Duffell's, and that the inducement of the gift was the services of Mrs. Duffell in raising the other small negro children, &c.

Mrs. Meadow, sworn, said she was well acquainted with Mrs. Loving; was intimate with her; had frequently heard her say she had given Missouri to her daughter when it was an infant, and that the inducement of the gift was for the services of Mrs. Duffell to her in raising and taking care of the negro children and attention to their mother. Mrs. Duffell sent clothes (dresses and underclothes) to the girl Missouri from Louisiana to Texas. She (Mrs. Duffell) resided about 150 miles from Mrs. Loving; she had frequently heard Mrs. Loving speak to the girl about sending her to her Miss Martha Duffell. Such expressions were frequently made when she was fretted.

James M. Weatherell, sworn, said Mrs. Loving, about a year before she died, offered to sell him the negro girl, and he offered her five hundred dollars for her; she possessed and controlled the negro.

Mrs. Lydia Bruce testified (answers to interrogatories) that (in April, 1853) she was twenty-three years of age, and resided on Bayou Clair, in the parish of Rapides, State of Louisiana; knows all the parties to this suit; has known the plaintiff ever since she can recollect, in the States of Alabama and Louisiana, and became acquainted with defendant last September in the State of Texas; knows the subject-matter in controversy is in regard to a certain negro girl, slave for life, named Missouri, aged about fourteen years; was well acquainted with Mrs. Lydia Loving in her lifetime; knew her in Alabama and in Louisiana; knew her ever since she can recollect; she was the mother of Mrs. Duffell; she has heard Lydia Loving state in witness' presence that Martha Duffell was the owner of said negro girl; that said Lydia Loving stated in presence of witness to Martha Duffell that...