Ellis v. Mathews

• Decision Date: 01 January 1857
• Citation: 19 Tex. 390
• Parties: HANNAH ELLIS AND ANOTHER v. SIMON MATHEWS AND WIFE.
• Court: Texas Supreme Court

19 Tex. 390

HANNAH ELLIS AND ANOTHER

v.SIMON MATHEWS AND WIFE.

Supreme Court of Texas.

1857.

Although a contract made by a man of sound mind and fair understanding may not be set aside merely from its being a rash, improvident or hard bargain, yet, if the same contract be made with a person of weak understanding, there does arise a natural inference that it was obtained by fraud, or circumvention, or undue influence.

Where a witness had testified to a conversation between the parties to a deed of gift, at the time of its execution, in which to induce the donor, the mother of the donee, and seventy-five or eighty years of age, to sign the deed, the husband of the donee, the latter being present, told the donor that the property, which was slaves, should not be taken out of her control during her life; and the court instructed the jury to disregard the testimony because the donor, who was sued to recover the slaves by the donee, had not alleged in her pleadings that a life estate in the slaves had been retained by her, it was held that the charge was calculated to mislead and probably did mislead the jury, and cause them to disregard said testimony in their consideration of the defense of fraud and imposition which had been pleaded.

Where the defendant, having been sued for certain slaves by her donee, pleaded that the deed of gift was obtained from her by false and fraudulent inducements of said plaintiffs, and by their fraudulent taking advantage of her old age and mental and bodily infirmities, and without any consideration whatsoever; and the court charged the jury that the only question for their consideration was, whether the donor, at the time of making the deed of gift, was of sound mind and capable of making a binding contract, and if not, did she by her subsequent acts and conduct ratify and confirm it, the jury having found for the plaintiff, it was held that the instruction was calculated to mislead and probably did mislead the jury, although it was evident from other portions of the charge that the court did not intend wholly to exclude from the consideration of the jury the question of fraud.

Appeal from Houston. Trial below before the Hon. John H. Reagan.

Suit by appellees, Simon Mathews and his wife, Hannah Caroline Mathews, formerly Ellis, against the appellants, Hannah Ellis, the mother of said Hannah Caroline, and John J. Ellis, the brother of said Hannah Caroline, to recover a family of negroes, which they alleged the said defendants wrongfully detained. Plaintiffs filed as part of their petition, and as the title under which they claimed, a deed of gift from the said Hannah to the said Hannah Caroline, of said slaves, dated August 24, 1847, witnessed by John Box, Jesse T. Prewitt and A. J. Corley; proved by Corley on the 20th of September, of same year, and recorded same day.

John J. Ellis filed a general denial, and other pleas, which are not now important. Defendant Hannah answered to the effect that the deed of gift was obtained from her by the false and fraudulent inducements of said plaintiffs, and by their fraudulent taking advantage of her old age and mental and bodily infirmities, and without any consideration whatsoever; and further, that said negroes had never been out of her possession and control.

Plaintiff gave in evidence the deed of gift, and proved that the slaves were on the farm of John J. Ellis, one of the defendants, where defendant Hannah lived in a house by herself; and the slaves were seen sometimes at the house of defendant Hannah, and sometimes at that of defendant John J., and sometimes working in the fields of the latter.

Defendants called several witnesses; the testimony of all of them tended to the same conclusion with varying force; and the following, which is the testimony of John Box, one of the subscribing witnesses to the deed of gift, will suffice for this report:

I am a subscribing witness to the deed of gift. There was no person present at the signing but Mathews and wife, and Prewitt and wife, the old lady and myself. I was sent for by the parties; when I got there the deed was handed to me; the old lady asked me to read it to her; I did so, and she asked my opinion about it; I undertook to explain it to her, and when I told her it took the negroes immediately out of her control, she said she would not sign any instrument that would give the control of her negroes to any person during her lifetime. Mathews then told the old lady, his wife being present, that they did not intend to take the negroes out of her control or possession, and upon his making that statement the old lady consented to sign the deed. The deed was written when witness got there. The old lady was in feeble health; she was distracted and confused in mind; she was not competent to transact business. Witness had known her several years; never saw her as bad off as at that time; they were sitting up with her at night. When sent for witness supposed it was to see the last of the old lady. It was the Sabbath day. Witness stayed there several hours that day; the paper was handed witness soon after he got there; whilst talking about the matter, the negro woman Fanny came to the door and said John J. Ellis was coming; the old lady took the paper and put it under her head, or somewhere about the bed, which witness said accounted for its defaced appearance. John J. Ellis left before witness; do not recollect whether the paper was signed before John J. came in or not; if not, it was not signed until after he left; the old lady was then some seventy-five or eighty years of age. Witness saw Mathews some time after that, and he asked witness to go and prove said deed of gift for probate. Witness told him he would not do so, for he thought they were taking advantage of the old lady, and he (witness) would have nothing more to do with the matter.

Cross-examined: Witness saw the old lady occasionally for some one or two years after that. She appeared to be in as good health as could be expected of a person as old as she then was. She attended to the duties of midwifery before that time, but not since then, as far as known to witness. She moved away after that time, and he did not see her as formerly.

Other witnesses proved that she continued to act as a midwife, riding behind some one when she was sent for, and that she was preferred to the present time. Some witnesses, speaking of her when not in what were called her spells, thought her health and mind were as good as usual in persons of her age.

It appeared by bill of exceptions that plaintiffs excepted to the admission of so much of Box's testimony as related to Mathews' promise that the slaves should not be taken out of the possession of defendant Hannah; and that the court admitted it, remarking that it might go to the jury on the question of fraud.

As rebutting testimony, plaintiff read the deposition of A. J. Corley, one of the subscribing witnesses, to the effect that he subscribed his name as a witness to the deed of gift, at the request of defendant Hannah, some time after its execution, and proved it for record, John Box, one of the witnesses, refusing to be qualified in reference thereto; that the old lady was in very feeble health, but appeared to witness to understand distinctly what she was doing at the time she requested witness to sign the deed. The facts which induced witness to think that her mind was as sound as any person's of her age (for she appeared to witness to be very old) were: 1st. She spoke of her intention of conveying property spoken of in the deed to her daughter, the wife of Simon Mathews. 2d. She spoke of her hard treatment by her other children, and of their continuous efforts to induce her to change her mind in reference to the disposition of her property.

The evidence as to the possession of the slaves was that the old lady lived sometimes with one of her children and sometimes with another, but always, so far as the evidence showed, in a house by herself, and that she always took the slaves with her and kept the control of them, they being all the property she had. During most of the time since the deed was made, she had thus lived at Mathews' place, and been supported by him. A short time before the suit they had a...