Tuggle v. Hughes

• Decision Date: 03 October 1894
• Parties: TUGGLE et ux. v. HUGHES.
• Court: Texas Court of Appeals

28 S.W. 61

TUGGLE et ux. v. HUGHES.

Court of Civil Appeals of Texas.

October 3, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by W. T. Tuggle and Mary E. Tuggle, his wife, against W. E. Hughes, to recover title and possession of certain real estate. Defendant had judgment, and plaintiffs appeal. Affirmed.

Bassett, Seay & Muse, Chas. F. Clint, and W. L. McDonald, for appellants. Watts, Aldredge & Eckford and H. C. Coke, for appellee.

FINLEY, J.

The appellant Mary E. Tuggle, joined by her husband, W. T. Tuggle, sued appellee, W. E. Hughes, to recover the title and possession of 36 acres of land, described in the petition, and claimed as her separate property. It was agreed that Calvin Cole, father of Mary E. Tuggle, was the common source of title, and that she had inherited from him the premises in controversy. Appellee claimed the land under a deed dated October 24, 1868, purporting to have been executed by appellants and Mrs. E. A. Cole to one Frank Husted. Appellee's title under this deed was complete. The genuineness of this deed, which was denied under oath, was the only issue upon the trial. If the deed was a forgery, appellants were entitled to recover; if it was genuine appellee was entitled to a verdict in his favor. The court, in its charge, submitted this single issue to the jury, and the jury gave their verdict for appellee. The genuineness of the deed was established by the preponderance and great weight of the evidence.

The first assignment of error complains of the court's overruling the motion for new trial, upon the ground that the verdict affirming the genuineness of the deed claimed to be a forgery was contrary to the weight and preponderance of the evidence. This assignment is not supported by the record. The execution of the deed was positively sworn to by witnesses, and their evidence was strongly supported by circumstances.

The second assignment of error relates to the refusal of the court to give the fourth and sixth special charges asked by appellants. The sixth charge referred to the defense of stale demand, and the fourth to the matter of a verbal contract of sale. The assignment does not conform to rules 23, 24, 25, and 26 (20 S. W. viii), requiring distinct specifications of error. There were, however, no such issues submitted to the jury, and the charges were not proper to be given.

Third assignment of error: "The court erred in admitting in evidence, over plaintiffs' objection, as shown by their second and third bills of exceptions, certain portions of the testimony of the witnesses De Cordova, Brandenberg, and others, whereby the plaintiffs' case was probably prejudiced, and the jury confused and misled." Appellants make the following statement under this assignment: "(1) Over plaintiffs' objection, the defendant was permitted to read to the jury a portion of the deposition of G. H. Brandenberg, to the effect that, about 1868, Newt Husted bought 9¼ acres of the 36 acres in controversy, and afterwards Frank Husted bought the remainder of the tract; that witness did not know the details of the trade, nor when nor where it occurred; that he gained his information from hearing the matter discussed in the family; that he did not know the full consideration; that Newt Husted paid a wagon and horses and a workbox for the 9¼ acres; if there was any other consideration, he did not know it; that, for the remaining part, Frank Husted gave, he thinks, two horses; that plaintiffs received the property from the Husteds; and that witness was then living on the widow Cole's farm." The grounds of objection to the testimony were (1) that it was hearsay and incompetent; (2) that it was irrelevant, and tended to confuse and mislead the jury; (3) that, purporting to come from the family of plaintiffs, it was calculated to prejudice their case with the jury. Their objections were overruled, and the evidence admitted, to which they reserved their exception. The bill was approved by the court, with the following explanation: "In answer to the 9th interrogatory, the witness answered: `I do not remember any particular remark that was ever made by either of them. I know of some amusement we had about their trading the ¼ acre for a workbox. They have been present and participated in such joke. These remarks were made by myself and my wife, and Tuggle and wife, and other members of the family. I do not remember...