Kilgore v. Jordan

• Decision Date: 01 January 1856
• Citation: Kilgore v. Jordan, 17 Tex. 341 (Tex. 1856)
• Parties: WILLIS KILGORE v. ELISHA H. JORDAN.
• Court: Texas Supreme Court

17 Tex. 341

WILLIS KILGORE

v.ELISHA H. JORDAN.

Supreme Court of Texas.

1856.

Refusal of the court below to grant a new trial on the ground of newly discovered evidence, affirmed on the ground of failure to use due diligence to discover it, and because the evidence was merely cumulative, etc.

Where the defendant moved for a new trial on the ground that when his attorney announced himself ready for trial, he thought he had in his office the pamphlet laws containing a private act on which defendant's defense depended, but after the announcement of the cause for trial, his attorney could not find said pamphlet law, etc., it was held that if there was good cause at all, it should have been made the ground of an application for a continuance.

The court responds to the law and the jury to the facts of a cause, and a mistake by either in their several provinces is good ground to set aside a verdict. But the views and notions which jurors, individually or collectively, may entertain of the law, cannot affect their finding.

Under an assignment of error, that the finding of the jury was contrary to law and evidence, the appellant or plaintiff in error cannot claim a reversal on the ground of misdirection in the charge of the court. But it would seem that the court would look to the charge, although not assigned as error, in a doubtful case on the facts, to see whether the verdict was entitled to the full weight to which the verdict of a jury is entitled where the law has been properly given in charge.

See this case for a discussion as to in what respect an infant is bound, where he fraudulently represents himself to be of full age, and thereby imposes upon another and induces the latter to enter into a contract with him, or accept a deed from him.

Where a second grantee claimed superior right on the ground that the grantor was an infant at the date of the first conveyance, but failed to prove that the grantor had attained full age at the date of the second conveyance, the court held that there being no considerable lapse of time between the conveyances the presumption was that he was an infant at the date of the second conveyance, and held further that the first grantee was entitled to recover the land from the second. Further, etc.

Where land is conveyed by fair sale by a minor, he cannot disaffirm the sale after arriving at full age without refunding the purchase money. [8 Tex. 93;post, 417.]

See this case as to evidence of the purchase money paid, in a controversy respecting the disaffirmance of a conveyance of an infant, after coming of age.

Appeal from Rusk. Tried below before the Hon. William W. Morris.

Action of trespass to try title to three hundred and twenty acres of land, by appellee against appellant, commenced October 17, 1853. Plaintiff introduced a deed to himself from D. C. Clark, in whom it was agreed the title was at the date of the deed, to wit: March 22, 1851, and proved that defendant was in possession at the commencement of the suit. The deed acknowledged the receipt of $640 as the consideration thereof, from Jordan by Clark, the grantor.

The defendant then introduced Wm. H. Estill, whose testimony is stated in full in the opinion. It was admitted that Clark was a minor at the date of his deed to the plaintiff. Defendant then introduced a deed from Clark to James McWilliams for the same land, dated May 21, 1852. Defendant then introduced what was called a recantation by Clark of his deed to the plaintiff. It was in the form of a notice to plaintiff, under seal, dated June 26, 1852, and notified plaintiff that said deed was made without consideration, while he, Clark, was a minor; and that he revoked it. Defendant then gave in evidence a deed from McWilliams to himself, dated February 8, 1853. The defendant then called the said James McWilliams as a witness, and proved by him that he was a subscribing witness to the deed from Clark to plaintiff; that he, witness, was clerk of the county court at the time; that he was present when the deed was executed, and he saw no money paid; that he afterward bought the land from Clark and gave him a horse and the balance in money, estimating both at $250; that he sold to the defendant for $620 in money and land together, and that he made a quit claim deed to defendant; and that he told defendant at the time he sold to him, that the plaintiff had bought the land from Clark, and claimed it; that said land was worth in 1851 $2 per acre, and now worth $3.50 an acre. Said witness also testified that the land in controversy was purchased by David Wood from one B. A. Vansickle; that Wood sold it to the plaintiff for $620; that it was taken by Wood from Vansickle as a part of the consideration of a house and lot in the town of Hen derson.

Plaintiff then introduced in evidence the answer of ___ Nettles, as follows, the interrogatories not appearing: I know the parties. I was the agent of Elisha H. Jordan. It was the land in controversy in this suit. I asked said McWilliams if he knew whether said Clark was of age, and he told me he supposed he was as the court had settled with him, and that he, McWilliams, had a tract of land in the same situation, and he was satisfied with it. It was both before and after making the deed that McWilliams told me these things. I do not remember who was present. Plaintiff purchased the land from David Wood, at Shreveport, in the state of Louisiana; he gave Wood two dollars per acre for it. “There was other proof to show that the plaintiff paid Wood a fair valuation for the land.”

These were all the facts. The judge charged the court as stated in the opinion, and refused to give the following, asked by defendant: That if the jury believe from the testimony, that the sale of the land during the minority of Clark was to his prejudice, then it was void, and not voidable only. And if they believe the contract was for necessaries, or if it was uncertain whether the contract was for the benefit or to the prejudice of said Clark, then the contract was voidable only, at the election of Clark.

Verdict and judgment for plaintiff. Motion for new trial on the ground of newly discovored evidence, and on the ground of surprise at the trial, and misapprehension of the law by the jury. As to the first ground, the defendant's affidavit stated that since the trial he had discovered new evidence, material to his defense, of which he was not aware before said trial, and therefore did not produce it. The new evidence was stated in the affidavit of the witness, James A. S. Parsons, as follows: That sometime during the year 1847, 1848 or 1849, one Daniel Wood, then a citizen of Rusk county, made a trade with one B. A. Vansickle, and sold to him a certain house and lot in the town of Henderson; and that as a part of the consideration for said house and lot (which house and lot is known as Wood's tavern), said B. A. Vansickle executed to affiant his title bond for 320 acres of land, a part of Daniel Clark's headright league of land in Rusk county; and that at the time of said trade said Daniel Clark was not at home; that sometime after said sale said Clark returned home, and affiant went to him and got him to give affiant his bond for title to said land, and take up the bond given to affiant by said Vansickle; and that afterwards one William H. Estill called upon affiant for a title to said tract of land for one Elisha Jordan; and affiant told him to go to Clark and get it, which he did.

As to the surprise at the trial, defendant's attorney made affidavit that when he announced himself ready for trial he believed he had in his office a pamphlet of the special laws of the state of Texas, that contained a law making Daniel Clark an adult, or competent to transact business as such; but that after the cause was announced for trial, he went to his office to get said act to read to the jury, and it was not to be found, and up to this time affiant has not been able to find the same.

As to the misapprehension of the law by the jury, defendant filed the affidavits of two jurors, to the effect that they had found for the plaintiff on the ground that there being no evidence that Clark was of age when he made the second deed or the recantation, they considered both titles alike defective, and that the plaintiff having the oldest deed had the best right.

Motion overruled, and defendant appealed.

S. B. Hollingsworth and W. B. Turner, for appellant.

J. C. Robertson, for appellee.

HEMPHILL, CH. J.

The errors assigned are:

1st. In refusing charge No. 1, asked by counsel for the defendant.

2d. In refusing to grant a new trial.

3d. The finding of the jury was contrary to the law and the evidence.

The first assignment has been abandoned, and we will consider very briefly the second, viz.: the refusal to grant a new trial. This was sought first on the ground of newly discovered evidence. 2d. The unexpected absence of pamphlet acts of the legislature, which contained matter material to the defense, and which counsel could not find when the cause was announced for trial, operated as a surprise and greatly weakened the defense. 3d. That the jury returned a verdict under a misapprehension of the law of the case, finding for the plaintiff as having the oldest title, believing both titles to be equally defective, and not being apprised of the legal principle that a plaintiff must recover on the strength of his own title.

As to the first, viz.: that of the newly discovered evidence, it is not necessary to recapitulate the rules under which an application of this character will be supported, for the reason that the application in this case is clearly not a compliance with the requisites of the law in this particular. The affidavit of the witness, Dr. Parsons, does not show, as is supposed by defendant, that no consideration was paid to Clark for the land by the plaintiff Jordan. The affiant says nothing about the consideration passing between plaintiff and Clark. His...