Grumbles v. Grumbles

• Decision Date: 01 January 1856
• Parties: BENJAMIN GRUMBLES AND WIFE v. EDWARD GRUMBLES.
• Court: Texas Supreme Court

17 Tex. 472

BENJAMIN GRUMBLES AND WIFE

v.EDWARD GRUMBLES.

Supreme Court of Texas.

1856.

Where the court has already charged the jury on a given point, and additional instruction upon the same point is asked by counsel, the refusal of such additional instruction is not error, if it merely reiterates the charge already given, or does not suggest some particular in which the charge already given is wrong, or fails to contain a full statement of the law upon the point, applicable to the facts proved.

It is believed that in all cases where the relation of trustee and cestui que trust is created by contract between the parties, notice, or some act of such notoriety that it would be presumed to be known to the cestui que trust, should be proved, before the relationship would be dissolved and the statute of limitations commence to run.

In order to sustain a plea of limitation by a trustee, founded upon his declarations and acts of ownership adverse to the claim of the cestui que trust, such acts and declarations must be continuous and consistent; not now denying the trust and again admitting it; admitting it to some persons and denying it to others. [10 Tex. 247;13 Tex. 143;26 Tex. 537.]

Error from Travis. Tried below before the Hon. John Hancock.

The court, in addition to the charge copied in the opinion, charged the jury upon the point of adverse possession, as follows: To enable a party possessed of property as a trustee to claim the benefit of the statute of limitations in his favor, it is not indispensable that actual notice should be given to his cestui que trust, that is, the person for whose benefit he held in the first instance, that such possessor sets up title in himself; but such trustee will be protected in his possession, under the statute of limitations, by actual notice, given to his principal, of a disavowal of his title, or by an open and public disavowal of the principal's title, and setting up title in himself, whether actual notice of such claim by the trustee be brought to the knowledge of the principal or not; and such adverse possession, if continued for the period of two years, would give complete title to the possessor.

The instructions which were asked by defendant, Benjamin, on the point of adverse possession, and refused, were as follows:

1st. That any act or claim of property by the defendant, Benjamin Grumbles, inconsistent with the right claimed by plaintiff, gave to the plaintiff a cause of action, and the statute commenced running from that date.

2d. That if the defendant claimed the negroes in his possession openly and notoriously as his own property, the statute commenced running in his favor from that open and notorious claim, whether the plaintiff had actual notice of such claim or not.

3d. That two years' adverse possession is a complete defense. If the facts constituting such adverse possession gave the plaintiff a right of action, the defense is good, whether the plaintiff had actual notice or not; that notice to an agent is, in law, notice to his principal.

The testimony showed that the dispute about the property became notorious in 1852; this suit was commenced in April, 1853.

Oldham and Sneed, for plaintiffs in error.

Hamilton and Green, for defendant in error.

LIPSCOMB, J.

This was a suit brought by the appellee against the appellants to recover two negro slaves. The substance of the evidence, as contained in the statement of the facts, shows that in 1838, in the state of Alabama, the appellant, Benjamin Grumbles, sold and conveyed the two slaves, with some others, to Edward Grumbles, for the consideration as set forth in the bill of sale, of four thousand dollars; that after that time the appellant disclaimed any ownership or control over the slaves, but always declared that he had sold them to Edward Grumbles. It was in proof that the vendee and the vendor (who is the father of the vendee) lived most of the time together after the sale, but that Edward furnished supplies for the negroes, and had the entire control of them, when present, but when absent, Benjamin Grumbles, junior, had the control of them for him; that in the year 1846, these negroes, together with others, were put into the possession of one Howard by Edward Grumbles and Benjamin Grumbles, junior, with written instructions to take them out to Texas and to deliver them to John Grumbles; that Howard started with the negroes, and that Benjamin Grumbles, the appellant, was in company with him; that after they had arrived at New Orleans, Howard transferred his instructions concerning the slaves to Benjamin Grumbles, the appellant, who came on to Texas in charge of the slaves, and delivered them agreeably to instructions to John Grumbles, as agent for Edward and Benjamin Grumbles, Jr., and then returned to Alabama, and in about one year came back with his family in Texas. It is in proof, that after the arrival of the appellant and his family in Texas, John Grumbles, as agent for Edward and Benjamin Grumbles, Jr., and by their directions, gave the slaves into the possession of the appellant, to have the use of them for his and his wife's support, they being the father and mother of Edward and Benjamin, Jr.; that on doing so, he told the appellant that he must pay the taxes on them; that from that time the appellant was in possession of them, using them as his own, hiring out some of them, and receiving their wages.

It was proved by Cole, a witness for the appellant Grumbles, that he had known appellant, Grumbles, since 1847; that in 1848 and 1849, he, witness, had hired the boy Nat from appellant, and paid to him the hire; that he never heard of any other owner, excepting once, when appellant was sick, and thought he would die, he willed the boy Nat to the witness; that John Grumbles told witness the negro belonged to plaintiff; that the negroes were taken by appellant to his own place over the river, one mile east of Austin, in 1837; that appellant was in possession of the negroes from that time until about the time the suit was commenced.

William Grumbles, a witness for the appellee, testified that he had often, in Alabama, from the year 1843 or 1844, heard the appellant say that the negroes belonged to Edward and Benjamin Grumbles, Jr.; and that he had heard him say the same thing in Texas; that when witness was leaving Texas...