Robson v. Heirs

• Decision Date: 01 January 1854
• Parties: ROBSON v. WATTS' HEIRS.
• Court: Texas Supreme Court

11 Tex. 764

ROBSON

v.WATTS' HEIRS.

Supreme Court of Texas.

1854.

Where a witness testifies to a conclusion of law and fact, as for example, that certain parties are the heirs of the deceased, it is the privilege of the party contesting the issue, to object at the time, or cross-examine the witness, and require him to disclose his means of information, and to state the facts on which he formed his conclusion; but he cannot be permitted to allow the witness to testify to such conclusion, and reserve his objection, in order to have the benefit of it in instructions to the jury, when it is too late for the other party to obviate the objection by a more particular examination of the witness, or the introduction of other testimony.

The authority conferred on the Clerk of the Probate Court, by the 41st Section of the Act of February 5th, 1840 (Hart. Dig., Art. 1035), to make sales to effect the partition of estates, and collect the proceeds thereof, was an official trust, and devolved on his successors in office.

A trustee or agent with power simply to collect, cannot in general receive payment in anything but money; nor will a payment to him in any thing else be binding upon his principal, or operate to discharge the debt, unless made or received by authority of his principal, express or implied. (Note 96.)

Appeal from Colorado. On the 5th day of November, 1844, by order of the Probate Court, one Perry, who was Clerk of the Probate Court, sold certain town lots belonging to the estate of William Watts, deceased, at probate sale, for the purpose of making partition among the heirs of said Watts, and the appellant Robson became the purchaser, and gave his promissory note, payable twelve months after date, to the said Perry or his successors in office, for the purchase money, and a mortgage on the town lots to secure payment thereof, to the said Perry. Three months after the sale Perry went out of office, and was succeeded by one Gardner, to whom he delivered the note and mortgage. Robson paid some money on the note, and gave Gardner's attorney, Jones, who was owing him a store account, credit on his books for the balance, who delivered him the note with payment receipted. At the Spring Term of the District Court, 1848, the appellees brought suit against Robson and Perry, alleging that they (the plaintiffs) were the heirs of William Watts, dec'd; that the note was still due and unpaid; that Perry had neglected to collect it; and praying, if, on the trial, it should be found that, by his neglect or mismanagement, any part of the note should be lost to the plaintiffs, that they have judgment against him for as much. Defendant Robson demurred generally, and specially for the want of proper parties plaintiff; that suit should have been brought in the name of the payee (Perry), in the note, or his successor in office. He also pleaded payment to one Gardner, Perry's successor in office, and a general denial. Perry demurred generally, and answered the foregoing facts. The demurrers were overruled. On the trial, a witness for the plaintiffs “testified that the parties mentioned in the petition and amended petition as plaintiffs, are the heirs of William Watts, deceased.” At the request of the plaintiffs, the Court charged the jury, “That where the Clerk of a county sells the property of an estate, for the purpose of a partition among the heirs, under the provisions of the statute, and takes notes payable to himself for the purchase money, it is a personal trust in the person, who is Clerk, and does not pass to his successor in office.”

The defendant Robson asked the Court to charge the jury that “the testimony of one witness, unsubstantiated by other evidence, stating that the plaintiffs were reputed to be the heirs of William Watts, deceased, is not sufficient to establish the fact of heirship,” which the Court refused.

The jury found a verdict for the plaintiffs, for the full amount of the note against defendant Robson, and for the defendant Perry against the plaintiffs. Defendant Robson moved for a new trial against the plaintiffs, and the plaintiffs moved for a new trial against Perry. Both motions were overruled, and the defendant Robson, and the plaintiffs, took separate appeals, which were consolidated in this Court.

J. H. Robson, for appellant.

Jones and Munger, for appellees.

WHEELER, J.

A question has been made in argument, as to the admissibility and sufficiency of the evidence introduced by the plaintiffs to prove their heirship and title to maintain the action. The testimony of the witness was direct and positive to that fact. No objection or question was made at the time, as to his means of information, or the manner in which he testified. If not satisfied with the manner in which the witness gave his testimony, or of his means of information, it was...