Nunn v. Mayes

• Decision Date: 30 January 1895
• Citation: 30 S.W. 479
• Parties: NUNN v. MAYES.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 479

NUNN v. MAYES.¹

Court of Civil Appeals of Texas.

January 30, 1895.

Appeal from district court, Ford county; G. A. Brown, Judge.

Action in trespass by W. E. Mayes against D. A. Nunn to try title to certain real estate. From a judgment for plaintiff, defendant appeals. Affirmed.

B. P. Enbanks, C. F. Martin, and D. A. Nunn, for appellant. Stevens & Huff and Carter & Lewright, for appellee.

HEAD, J.

This is an action of trespass to try title, instituted by appellee to recover from appellant 984 acres of land, a part of the one-third league granted to colonist Isaac Aldridge. Appellee claimed under an Isaac Aldridge who married Polly Worthington, in Georgia, some time prior to 1835. Appellant claimed under an Isaac Aldridge who was born in Rhode Island, and went from there to Georgia when quite young, where he lived with his uncle, George Aldridge, until 1835, when he came to Texas, and died without ever having been married. The verdict finding that the Isaac Aldridge under whom appellee claims was the one to whom the grant was made is well supported by the evidence, as would have been one in favor of appellant had it been rendered. We are of opinion no reversible error is shown in the admission of the certified copy of the marriage license and certificate thereto from Putnam county, Ga., showing the marriage of Isaac Aldridge and Polly Worthington, under whom appellee claims. Without considering the objections made to this certificate, we think the legality of this marriage was sufficiently shown by other evidence, in so far as it was material in this case. Mrs. Emeline Adams testified to the marriage of her father, Isaac Aldridge, with her mother, Mary Worthington, in Georgia; and we find nothing in the record to contradict this. The admission of the copy of the marriage license and certificate referred to in the first assignment was therefore immaterial error, if error at all. Boone v. Miller, 73 Tex. 564, 11 S. W. 551.

We find no error in the exclusion of the letters of A. M. Carter and certain ex parte affidavits referred to in the second assignment, which it is claimed should have been admitted to rebut the imputations of fraud and bad faith made by Carter, as counsel for appellee, against appellant, in his preliminary statement of his case to the jury. We think the evidence should be restricted to the material issues made by the pleading, and we know of no rule which would authorize the admission of ex parte affidavits and letters solely to disprove insinuations made by opposing counsel.

James S. Stewart, a witness for appellant, was allowed to testify, without objection, as follows: "My age, 60 years. Reside in Montgomery county, Arkansas. Have resided here one year. I was [not] personally acquainted with Isaac Aldridge. Only knew of him by what I heard his uncle say about him. I knew Geo. Aldridge in Hurd county, Georgia. Have known him all my life. I do not know whether Isaac Aldridge was a married man, but his uncle often stated to me that he was not. I never knew Isaac Aldridge personally. I was never personally acquainted with John Aldridge, but only knew him by what I heard his father say of him. Never saw either Isaac or John Aldridge in my life. I lived in one and one-half or two miles of Geo. Aldridge, while I lived in Georgia. They were all under good character. John and Isaac Aldridge were first cousins. I knew Henry Aldridge, a son of Geo. Aldridge. I knew him all my life in the state of Georgia. Geo. Aldridge is dead. He died in Hurd county, Georgia, in 1872, at the age of 82 years. I knew Henry Aldridge. He resides in Montgomery county, Arkansas. His post office is Stacy, Ark. As far as I know, Henry Aldridge is nearest of kin to Isaac Aldridge. * * * I have no knowledge of John Aldridge's relatives ever did anything with trying to get his estate. I have always understood that Isaac Aldridge was a single man. I derived my knowledge of these facts from Geo. Aldridge, the uncle of Isaac Aldridge. I heard Geo. Aldridge say that John and Isaac Aldridge died or were killed in Texas and Mexican war. This conversation was in Hurd county, Georgia. I cannot say that any one else was present at the time he made such remarks. Geo. Aldridge was father of John and uncle of Isaac Aldridge." In addition to this evidence, the appellant offered the following answers from the deposition of this witness: "He [referring to Isaac Aldridge] was generally represented to be a single man. The last I knew of him, he went to the Texas and Mexican war. To the best of my information, they [referring to Isaac and John Aldridge] left Georgia about the year 1835. As far as I know, Henry Aldridge is the only heir of John Aldridge. Isaac Aldridge was never married, and so left no children, so far as I know," — which were excluded on objection by appellee that the evidence was hearsay and incompetent. We are of opinion that no reversible error is shown in this action of the court, inasmuch as all of these answers are substantially embraced in that part of the witness' evidence which was admitted. There is also a clause in the opinion of our supreme court recently rendered in the case of Byers v. Wallace, 28 S. W. 1056, 29 S. W. 760, which would require the exclusion of this evidence, upon the ground that the only knowledge the witness had of the matters testified about was derived from George Aldridge, who, at the time he made the declarations, was the heir of the one to whom he was thus showing himself to be related; but as we are not fully satisfied as to the extent to which the opinion referred to was intended to go upon this point, nor as to its soundness, we prefer to rest our decision upon the ground first stated. The clause of the opinion referred to is as follows: "The court also admitted, over objections of defendants, the declarations of Wm. Wallace, through whom the plaintiffs claim title, to the effect that he had a nephew in Texas named Wm. Wallace, who was killed at Goliad, in the Fannin massacre. The evidence shows that, if the declarations were true, the declarant was the only heir of the party to whom the declarations related. The declaration must have been made after the supposed death of the nephew, and goes directly to establish the title of the declarant as the sole heir of the nephew. It was a self-serving declaration, made in the interest of the declarant, and should have been excluded. 1 Whart. Ev. § 207; Plant v. Taylor, 7 Hurl. & N. 237; Morrill v. Foster, 33 N. H. 379." The next clause of the opinion is as follows: "The plaintiffs were permitted to prove by Wm. Wallace, one of the plaintiffs, over defendants' objections, that, according to his family history, Wm. Wallace, the father of witness, under whom plaintiffs claimed title, had a nephew named Wm. Wallace, who went to Texas in the spring of 1835, for the purpose of enlisting in the Mexican war, and was killed in 1836, at what was known as `Fannin's Massacre.'"...