Thompson v. Thompson

• Decision Date: 01 January 1854
• Citation: 12 Tex. 327
• Parties: VICTOR THOMPSON v. WILEY THOMPSON.
• Court: Texas Supreme Court

12 Tex. 327

VICTOR THOMPSON

v.WILEY THOMPSON.

Supreme Court of Texas.

1854.

See this case for assignments of error which the Court said were too vague and indefinite, although they were entertained, being also unfounded.

Where the plaintiff sued for the recovery of certain slaves, alleging that the defendant set up a claim to them which was fraudulent and without foundation, and the defendant answered by pleading a deed of gift of said slaves from the plaintiff to him, the Court said the plaintiff ought not, under the pleadings, to have been permitted to prove facts dehors the deed, to show that the gift was a donatio causa mortis; that the answer was in the nature of a plea of reconvention or cross-petition, and that matters in avoidance of it should have been pleaded by way of amendment.

The doctrine that every material, issuable fact must be alleged, in order to admit the necessary proof, has been often adjudicated in this Court. (Note 63.)

To hold a gift which is made in form of a gift inter vivos, to be a gift causa mortis, it must be shown (by clear, direct, and undisputed proof, where the circumstances would admit of it, if true, as in this case) to have been in contemplation of death from present illness or anticipated peril; and the circumstances must be such as to show that the donor intended the gift to take effect if he should die shortly afterwards, but if he should recover, that the property should be restored to him.

Where the Court below permitted the defendant to ask the plaintiff's witnesses, on cross-examination, whether they did not desire that the plaintiff should recover, this Court intimated that the question was impertinent, but held that the fact constituted no ground for disturbing the judgment, under the circumstances of this case.

Interlineations which are noted in the attestation clause, do not require further explanation, as a prerequisite to the admission of a deed in evidence.

It is not necessary to prolong the examination in this case, or to review all the grounds raised in argument against the judgment. If the deed under which the defendant claims be a donation inter vivos, and such it appears to be on its face, and on the evidence adduced, the defendant was entitled to judgment; and whether there be errors committed in the progress of the cause or not, still such judgment, being right on the merits, cannot be disturbed.

The only error of any consequence which is perceived, is in that portion of the charge which maintained, in effect, that the defendant, if he claimed under a purchase or gift from the plaintiff, could not, as against him, set up the statute of limitations. This we apprehend is erroneous. The possession of the vendee holding under complete title, or of a donee under an unqualified gift, is adverse to all the world, including the donor and vendor, as well as others.

Appeal from Cherokee.

Shanks, Bonner & Bonner, for appellant.

Donley & Anderson, for appellee.

HEMPHILL, CH. J.

The appellant sues for several slaves, alleging his ownership, and that the appellee has illegally, fraudulently, and wrongfully taken them into possession and converted them to his own use; and further alleges that the defendant sets up a pretended claim of right to said negroes, which is wholly fraudulent and without any just foundation.

The defendant, among other matters, pleaded that the plaintiff (who was his brother) had (at a time specified in the plea) voluntarily and without persuasion, executed and delivered to the defendant a deed of gift of the slaves sued for, and that shortly afterwards he, of his own free will and accord, delivered the said slaves to the defendant, who from that time to the present has had the actual, exclusive, and continued possession of the said slaves. The defendant also pleaded prescription, having had the actual, continued, uninterrupted, and adverse possession for more than two years prior to the commencement of this action. The deed of gift is made a part of the answer, and by its terms the property is transferred to the defendant without qualification or condition, and with a general warranty of title. Upon these pleadings the cause went to trial, and there was judgment for defendant, from which the plaintiff appealed.

The errors assigned are:

1st. That the verdict of the jury is contrary to the law and evidence in the case.

2d. That the Court erred in permitting improper evidence to go to the jury.

3d. That the Court erred in allowing the interrogatories propounded to Lipscomb Nowell and others, and the answers by them, to be read to the jury.

4th. That the Court erred in refusing charges prayed for by plaintiff. 5th. That there was error in the general charge to the jury, and

6th. In the refusal to grant a new trial.

The most of these assignments are faulty, from the want of sufficient specification of the grounds of objection to the judgment. They point to no precise distinct error, and are but an imperfect compliance with the requisition of the statute, that the grounds of error on which the appellant intends to rely should be distintly specified.

But waiving objections to the vagueness of the assignments, I will proceed to consider some of the most prominent positions presented by the appellant in his brief, and to examine whether there be any such errors as would require the judgment to be reversed.

The appellant contends that the judgment is not supported by the law and evidence, in this, that the gift was a donatio causa mortis, and not a gift inter vivos, and was consequently void, on his recovery from sickness, and revocable at his pleasure. The deed does not, on its face,...