Hawkins v. Lee

• Decision Date: 01 January 1858
• Citation: 22 Tex. 544
• Parties: R. C. HAWKINS v. M. J. LEE AND OTHERS.
• Court: Texas Supreme Court

22 Tex. 544

R. C. HAWKINS

v.M. J. LEE AND OTHERS.

Supreme Court of Texas.

1858.

By the common law, when a person takes an estate of freehold under a deed, will, or other writing, with a limitation in the instrument, by way of remainder, of an interest of the same quantity to his heirs, or the heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate.

If a father give to his daughter, a married woman, a slave, to belong to her and the heirs of her body, by the common law, so soon as the slave is reduced into possession, he becomes the absolute property of the husband.

In a gift of personal property to a wife, in order to exclude the marital rights of the husband from attaching and converting the property to his sole ownership, where the common law is in force, there must be a clear and unequivocal intention manifested in the conveyance, that the wife shall possess the exclusive interest in the property.

The fact that a slave thus acquired by the husband, through a gift to the wife, was, after this rule of the common law was abolished by statute, and the wife's property secured to her, exchanged by the wife for another slave, could not effect the husband's rights; and the slave, last acquired, though the change was effected by the agency of the wife, would still be the absolute property of the husband.

If a verdict be found for a gross sum, for the hire of a number of slaves (for which suit was brought), and the plaintiffs were not entitled to recover one of the slaves, nor his hire, the court cannot know, from the verdict, the amount for which plaintiffs are entitled to judgment, for the hire of those as to whom the verdict was correctly rendered.

The provisions of the laws of other states, which were in evidence upon the trial, should distinctly appear by a particular reference, and should either be copied in the record, or accompany it, when the case is submitted for decision.

The practice of copying into the record, as a statement of facts, the depositions of witnesses, with commissions, etc., when the material facts might be much more intelligibly presented by a concise statement, as the law requires, is not correct.

Such a practice is not a compliance with either the letter or spirit of the statute, which requires the party giving notice of appeal, “to make out a clear and explicit statement or bill of the facts” proved upon the trial; and if parties do not see proper to comply with the plain requirements of the statute, in preparing their statement of facts, they will have no cause to complain, if the court should decline to recognize anything as a statement of facts, which is not such as the law contemplates.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

Suit by appellees against the appellant. The petition alleged that the plaintiffs, Martha Jane Lee, and Mary F. James, William K., Ellen S., and Martha J. English, the minor children of said Martha Jane Lee, and her former husband, William K. English, deceased (and for whom she sued as maternal guardian and next friend), were the owners of seven slaves, named and described in the petition, and then in the possession of the defendant; and also that defendant was indebted to plaintiffs, on account of the hire of said slaves, for the period stated in the petition.

The defendant pleaded a general denial, title in himself to all the negroes sued for, and prescription, by adverse possession for five years under the statute of limitations of the state of Arkansas, and for two years under that of Texas.

It appeared from the testimony, that appellant married Sylvania McDonald in the state of Mississippi, in the year 1819; that her father, Willis McDonald, made a parol gift “to her, and the heirs of her body,” of a slave named Peter; that the appellant and his wife removed to the territory of Arkansas in the year 1830; that in 1840, Mrs. Hawkins went on a visit to her father, in Mississippi, and while there exchanged with him said negro boy Peter, for the slave Zack, now in suit; that said negro, Zack, remained in the possession of appellant, in Arkansas, from that time until his removal to Texas, in the year 1853, and had continued in his possession in this state from that time until the bringing of this suit.

Mrs. Sylvania Hawkins died in July, 1844, leaving two children, to wit, the appellee, Martha Jane Lee, then the wife of William K. English, and Richard Hawkins, who died a minor, without issue, in July, 1848. English died in 1853, and a short time thereafter, appellant and appellee, Martha Jane, and her children, removed together to Texas, and for some time subsequently resided together. It was admitted that, previous to 1839, the common law upon the subject of marital rights was in force in Arkansas and Mississippi, and that the statute of the latter state, “for the protection and preservation of the rights and property of married women,” was enacted in 1839.

It is unnecessary to state the facts in reference to the other negroes. Upon the trial the court, in its charge to the jury, said:

“6th. If you believe, from the evidence, that the slave Zack was given by the father-in-law of Hawkins, in Mississippi, to his daughter, Mrs. Hawkins, with an express condition to belong to her and the heirs of her body, acquiesced in and admitted by Hawkins, during the life-time of his wife; then the possession by Hawkins of this boy, up to his wife's death, in 1844, was not a possession adverse to his wife's interest, and the plaintiff, Mrs. Lee,...