Thurmond v. Trammell

• Decision Date: 31 October 1866
• Citation: 28 Tex. 371
• Parties: THOMAS J. THURMOND v. HENRY TRAMMELL ET AL.
• Court: Texas Supreme Court

28 Tex. 371

THOMAS J. THURMOND

v.HENRY TRAMMELL ET AL.

Supreme Court of Texas.

October, 1866.

To repel the defense of the statute of limitation, in actions for the recovery of specific personal property, evidence of verbal acknowledgments by the defendant of the plaintiff's title to the property may be sufficient for the purpose of showing that his claim and possession were not adverse to the plaintiff or that he recognized the title of the plaintiff and claimed under it. Pas. Dig. art. 4617 a, note 1027 a.

But when, in such actions, the evidence clearly shows an adverse holding by the defendant for a period sufficient for the statute of limitation to become available as a defense, an acknowledgment by the defendant of title to the property in the plaintiff, unaccompanied by evidence of an intention or willingness on the part of the defendant to submit to the title so acknowledged, and especially if he refuse to deliver the property to the plaintiff, will not defeat the bar of the statute. Id.; 9 Tex. 125; 11 Tex. 24;26 Tex. 34, 714.

Therefore, where the evidence showed that the defendant, contemporaneously with her acknowledgment of the plaintiff's title to the slave in controversy, refused to submit to the title or surrender the slave, it was not error for the court to decline to charge the jury unqualifiedly that the acknowledgment of the plaintiff's title, if made within two years previous to the commencement of the suit, would defeat the defense of the statute of limitation.

The court below gave the instruction asked, with the qualification that, in order for the acknowledgment to defeat the defense of limitation, the defendant must have understood the effect of the admission, to wit, that it gave up her right to the negro; and further charged that, if the defendant had for two years or more continuously set up claim to the slave as her own, and had the peaceable possession of the slave for that time, this vested the title in the defendant; and that a simple admission by her of the plaintiff's title, coupled with the declaration that she could and would hold the slave as her own, would not defeat the bar of the statute: Held, by this court, that the charge was as favorable to the plaintiff as he had a right to expect. Pas. Dig. art. 905, clause 4, note 909, p. 652; 2 Tex. 285.

The defendants proposed to prove the oral testimony given at a former trial by a witness since deceased. The plaintiff objected that the defendants had failed at a former trial to make such proof, whence plaintiff had a right to believe it would not be now offered, and that defendants had not shown that they could not obtain the same evidence from other sources: Held, that the objections were properly overruled.

A party cannot be required to give notice what witnesses he will introduce and rely on at the trial; he may bring such witnesses to sustain his case as he is able to bring.

Though formerly required, it is not now necessary that a person called to prove the testimony given at a former trial by a witness since deceased should repeat the precise words of the deceased witness. It is sufficient that he state the substance of the testimony.

APPEAL from Gonzales. The case was tried before Hon. FIELDING JONES, one of the district judges.

The case turned upon the facts and instructions. The character and main facts of this case are substantially stated in the opinion of the court. The petition was filed on the 5th of February, 1857. The defendant, Julia Ann Trammell, was a daughter of the plaintiff, Thurmond.

At the spring term, 1861, the trial was had from which the present appeal was taken. The charge requested by the plaintiff was as follows: “In order for the defendants to hold the slave by the statute of limitation of two years, the claim, as well as possession of the property, for two years previous to the institution of the suit, must be made to the property; and if the jury believe from the evidence in this case that defendant, Julia Ann Trammell, admitted, within two years previous to the institution of this suit, that the slave belonged to plaintiff, then defendants could not claim and hold the slave in question by reason of the statute of limitation.” To which the judge appended the following: “This instruction I give with this qualification, that Mrs. Trammell understood the effect of the admission, to wit, that it gave up her right to the negro. But if you believe that she had for two years or more continuously set up claim to the slave as her own, and had the peaceable possession of her for that time, it would vest the title in her; and a simple admission of the plaintiff's title, coupled with a declaration that she could hold her as her own and would not give her up, would not defeat the running of the statute.”

Verdict and judgment for the defendants. The plaintiff's motion for a new trial was overruled, and he appealed, assigning errors which are indicated in the opinion of the court.

Parker & Miller, for appellant. Possession alone can never give title, however long continued; but possession, accompanied with a continuous claim to the fee or title, for two years previous to the institution of suit, would in ordinary cases give title, but the claim must be notorious and continuous, not made at one time and denied at another, and made to one person and denied to another. Grumbles v. Grumbles, 17 Tex. 742. The admission by Mrs. Trammell and her husband that the title to the slave was in her father (the plaintiff), was an admission that they held in subordination to a better title, and hence that they held possession by consent of the owner. Ang. Lim. § 384, p. 462.

The admission of plaintiff's title by defendants, in August, 1856, was unqualified.

We submit, that the charge asked was in accordance with law and the evidence in the case. It was error to give this charge with a qualification. The statute requires the presiding judge to give or refuse charges asked, and to specify in writing what charges he gives and what charges he refuses. O. & W. Dig. art. 487.

The charge asked in this case was neither given nor refused, but was qualified in the following words of the judge: “If Mrs. Trammell understood the effect of the admission, to wit, that it gave up her right to the negro.” This was clearly not the law of the case, and goes upon the principle that ignorance of law would excuse Mrs. Trammell, when in fact she was bound to know the legal effect of her admissions.

There was no issue either in the pleadings or evidence, as to whether Mrs. Trammell understood the legal effect of her admission, and nothing to support this qualification, even if it had been law. This qualification entirely nullified the charge asked, and was calculated to, and we think did, mislead the jury.

The evidence, as well as the amended answer, shows that defendants held said slave by virtue of a mortgage to McLean, in Louisiana, which had been bought up by defendants, and plead in the amended answer. It was through this mortgage they acquired possession of the slave; this was the title Mrs. Trammell set up to her. We submit, then, that Trammell and wife were only mortgagees of the slave, and that they would hold in trust, subject to the title of the plaintiff, more especially where the relation of father and daughter supervened; and where possession was acquired in this way, the law would hold Trammell and wife to be trustees for the benefit of plaintiff. Story, Eq. §§ 1520, 1521. And this relation would stop the running of the statute of limitation, not only until there was an absolute claim by defendants to the negro and a refusal to acknowledge the trust, but they must prove that plaintiff had notice of their intention to claim in their own right; and to disallow the trust and general acts of ownership and claim would not be sufficient. Gilkey v. Peeler, 22 Tex. 633; Turner v. Smith, 11 Tex. 620;Grumbles v. Grumbles, 17 Tex. 472. And the statute would not commence to run until after such notice was proved to have been given to the owner.

No brief for the appellees.

DONLEY, J.

This was a suit by appellant against appellees, alleging that appellant was the lawful owner of a certain negro woman, a slave; that said negro had been five years in the possession of defendants; that her services were worth $175 a year; that defendants had paid a part of the money due for hire, but refused to pay the balance, and also refused to deliver said negro to the plaintiff.

The defendants in their answer say that the negro was the property of the defendant, Julia Ann Trammell, derived by gift from her grandfather. They deny that they hired said negro woman from the plaintiff, or that they ever paid plaintiff anything for the hire of the woman, and they plead the statute of limitation. They aver that plaintiff had illegally mortgaged the woman Phebe to one McLean; that McLean refused to deliver said woman to the defendants until defendants should pay the money due on the mortgage, upwards of $300; and that, to obtain the property, defendant, Julia Ann Trammell, paid to McLean the mortgage debt of $327, and by that means was restored to the rightful possession of the negro woman.

W. D. P. Thurmond, a witness for plaintiff, testified that he saw the girl Phebe in possession of the defendants in August, 1856; knew her to be the same his father had left with McLean in 1842; that defendants said they had obtained the woman from McLean as they were moving to Texas in 1852. Witness testified that the woman Phebe was at that time the property of plaintiff, and that the defendants said that they would buy her if plaintiff would sell. The girl was about thirty-seven years of age, and had been in possession of plaintiff as far back as witness could recollect, till left with McLean in 1842. Witness was about the same age as the girl; he had always understood that the girl was born on his father's place. Witness was with plaintiff at defendants' in ...