Guess v. Lubbock

• Decision Date: 01 January 1851
• Citation: 5 Tex. 535
• Parties: GUESS v. LUBBOCK, ADM'R.
• Court: Texas Supreme Court

5 Tex. 535

GUESS

v.LUBBOCK, ADM'R.

Supreme Court of Texas.

1851.

The evidence must be confined to the issues made by the pleadings.

Under a general denial the defendant cannot introduce any evidence except such as directly rebuts the evidence introduced by the plaintiff. By that plea the defendant simply puts himself upon the defensive and calls upon the plaintiff to prove his averments. (Note 96.)

Where the defendant had leave to amend, and pleaded “that the property sued for, land and negro, is the property of the estate of defendant's intestate, bought and paid for by him,” to which the plaintiff excepted “because the same has been filed at too late a day, and that said plea and amended answer is irregular and wholly insufficient in law:” Held, That the exception was rightly overruled.

The 108th section of the act to regulate proceedings in the District Courts does not authorize the court to make up issues foreign to or different from those raised by the pleadings of the parties.

An estoppel may be created by the acts of a party without a deed. Such an estoppel is called an estoppel in pais.

Whatever may have been the legal effect of the legislation of Mexico previous to the Revolution upon the relation of master and slave in Texas, which relation never ceased for a moment to exist de facto, if not de jure, there is no doubt the object and effect of the ninth section of the General Provisions of the Constitution of the Republic was to recognize and continue that relation wherever it existed de facto in good faith. (Note 97.)

Although the relation of master and slave, in a particular case, may have existed at some period anterior to the Constitution of the Republic, yet if it did not exist, de facto at least, at the date of the Constitution, as if the master disclaimed the relationship and treated the person in all respects as free, the condition of such person is not affected by it.

According to the Spanish law a master could manumit his slave, 1st, by writing, with five witnesses to it, before a judge or elsewhere; 2d, by verbally manumitting him in the presence of five witnesses; 3d, by will duly executed; 4th, by marrying her. But this law was not in force in Mexico after she ceased to belong to Spain, and in Texas, before the Constitution of the Republic, a master could let his slave go free without pursuing any one of the above modes of manumission.

Quere when the Constitution of the Republic took effect.

Appeal from Harris.

B. C. Franklin, for appellant.

J. W. Henderson, for appellee.

LIPSCOMB, J.

This suit was brought by the appellant against the appellee to recover a certain lot of ground and a negro girl. The petition alleges that said property was bought and paid for by the plaintiff; that the title was in the name of one Adam Smith, who acted as her trustee; that she, during Smith's life, controlled the said property and enjoyed the use and profits thereof, without any claim on the part of Smith to the same so long as Smith lived, and that after his death the defendant, as administrator of Smith, got possession of the property and withholds it from her, &c. At the May Term, 1849, the defendant in his proper person answers by a general denial. At the Fall Term following the defendant had leave to amend his answer, and amended by--

1st. A general demurrer.

2d. That the plaintiff was at the time of the commencement of her suit, and still is, the slave of the defendant's intestate's estate.

3d. A general denial.

4th. That the plaintiff was for many years previous to and at the death of defendant's intestate a slave in his possession, purchased for a valuable consideration; never was manumitted, but still is the slave of said estate.

5th. The statute of limitations of two years.

6th. That the property sued for, land and negro, is the property of the estate of defendant's intestate, bought and paid for by him.

The plaintiff, by counsel, filed exceptions to the 1st, 2d, 4th, 5th, and 6th pleas, on the ground that they were filed too late and were irregular and wholly insufficient in law. Afterwards, but at the same term, the defendant filed an amended answer, viz:

7th. That the plaintiff, at the time that she alleges she acquired title to the property sued for, was a slave for life, and incapable of holding property, and that it is the property of the estate of defendant's intestate. This last answer was excepted to by the plaintiff's counsel.

The plaintiff's exceptions to the defendant's pleas coming on to be heard by the court, the exceptions were sustained to the 1st, 2d, 4th, 5th, and 7th pleas and overruled to the 6th plea.

There being no plea but the 3d, which was a general denial, and the 6th, which alleges that the property sued for, land and negro, is the property of the estate of defendant's intestate.

The correctness of the decision of the court in overruling the pleas of the defendant has not in this case been brought before us for revision. The record immediately after the judgment of the court on the exceptions to the defendant's pleas proceeds: The parties being at issue, thereupon came a jury, and giving their names, continues, who being duly sworn and having heard the evidence, the following issues were submitted to them, viz:

1st. Was the negro girl purchased of Dolan or of Dolan and Clipper by the plaintiff or by Adam Smith?

2d. Was the ten-acre lot purchased by the plaintiff or by Adam Smith?

3d. In the purchase of the said property did Adam Smith act as the trustee?

4th. Were the titles to the said property or any part thereof made to Adam Smith in trust for the plaintiff?

5th. What is the value of the negro girl Puss?

6th. What is the value of Puss from the 1st November, 1846, to this time?

7th. Was the plaintiff the slave of Adam Smith?

8th. If you find that she was the slave of Adam Smith, when did she become so, and how long did she remain so?

Whereupon the jury find as follows:

To the 1st issue they answer Adam Smith.

2d. They answer Adam Smith.

3d. Yes.

4th. The title to the land was made to Adam Smith in trust for the plaintiff. 5th. Five hundred dollars.

6th. Two hundred dollars.

7th. She was.

To the 8th issue they answer at the time of the purchase, February, 1836, and was his slave at the time of his death.

The plaintiff filed a motion to set aside the finding of the jury, &c.; also a motion for a new trial and in arrest of judgment; which were overruled, and judgment given for the defendant and for costs of suit, from which an appeal was taken to this court.

We have been much more tedious in the statement of the case than could have been wished, but the record is embarrassed by so much irrelevant matter that it was necessary to make the above extracts for the purpose of understanding the questions of law that necessarily arise in the case. We do not propose to consider the errors assigned separately, but shall endeavor to confine our remarks to the ground embraced by them. It is seen from the preceding statement extracted from the record that but two pleas went before the jury. At the time they were impaneled these formed an issue or issues by the pleading, and all the evidence ought to have been confined to them. Under our system we have thought it very essential that the rule the allegata and the probata should concur should be firmly maintained and enforced, without permitting its effect to be paralyzed and defeated by a resort to any of the fictions of the English common-law practice. (Mims v. Mitchell, 1 Tex. R.; Coles v. Kelsey, 2 Tex. R.)

The 1st (3d on the record) plea of the defendant not overruled is a general denial of the allegations contained in the petition. Under this issue, according to our practice, no evidence could be received from the defendant but such as directly rebutted the plaintiff's. The defendant places himself simply on the defensive, and calls on the plaintiff to make good his averments. This was not the practice formerly in courts of common law governed by the English rules of procedure. Under the general issue the defendant was authorized to give various matters of defense in evidence. In England, however, under what is called Lord Tenterden's act, no special matter of avoidance can be given in evidence without a special plea alleging such matter of defense. It is the same as our practice.

The second plea of the defendant, (No. 6 in the record,) according to the common-law pleading, would have been bad, because it shows no matter that might not have been available under the general issue. It only alleges that the property sued for is the property of the estate of the defendant's intestate for a valuable consideration paid by him. In my opinion it is bad as a special plea under our practice, in this: that it does not show in what the valuable consideration consisted, whether in money or anything else; who from; at what time; nor how much paid. It is doubtful under such a plea, if good, whether he could have been permitted to have proved anything else but a direct money payment. If the payment alleged was an indirect one, from which payment would be a legal deduction, it seems to me that the facts from which such legal deduction was derived should have been alleged. A majority of the court, however, believe that the plea was sustainable as a special plea, but all concur that as such nothing could be proved beyond what is alleged in it.

We have shown that the only evidence that could have been received under the issue formed by the pleadings was such only as rebutted the truth of the facts stated in plaintiff's petition, or the truth of the fact stated in the second plea. Upon the truth of these rested her right to recover. No evidence as to the disability of the plaintiff to sue resulting from her status as a slave was admissible, because the foundation for such proof was not laid by the allegata of either the petition or the plea. The introduction of such evidence was foreign to the issue made by the pleading, and...