Wallace v. Trammell

• Decision Date: 01 January 1863
• Citation: 27 Tex. 317
• Parties: BAILY AND WALLACE v. AMANDA J. TRAMMELL.
• Court: Texas Supreme Court

27 Tex. 317

BAILY AND WALLACE

v.AMANDA J. TRAMMELL.

Supreme Court of Texas.

1863.

In a suit for the recovery of two slaves or their value, the defendants pleaded that they were bona fide purchasers of the slaves, at an execution sale; that the plaintiffs had no interest nor title in the slaves; that the plaintiffs and the defendant in execution had entered into a combination and conspiracy to prosecute the suit in the name of the plaintiffs; and if successful, it was to enure to the benefit of the defendant in execution, and therefore prayed that he be made party plaintiff. It was held that there was no necessity for the defendants to make the defendant in execution a party to the suit to entitle them to their defense; and that, upon allegation and proof of such combination and conspiracy, they could avail themselves of any defense against the defendant in execution, as fully as if he had joined in the suit.

In such a case, upon allegation and proof of such combination and conspiracy, the acts and declarations of such third party, or secondary evidence that would be admissible if he had been a party, would be equally as effectual against the plaintiffs as if he were joined with them; but the mere charge of combination and conspiracy between the plaintiffs and a third party will not entitle the defendants to the use of secondary evidence, where such third party has the control of the primary evidence upon which they rest their defense.

Nor can the defendants, by simply making such a charge in general terms, with a prayer that such third party be made a plaintiff in the case, deprive the plaintiffs of the right to claim that secondary evidence should not be received to defeat their action until it was made to appear that the primary evidence could not be procured.

There is no known rule of practice by which a defendant is authorized to make a party plaintiff in a cause.

If the proper plaintiffs are not joined in the action, the defendant may take advantage of the non-joinder by plea, and have the proper parties made by the plaintiff, or cause the suit to be dismissed; or, in some cases, he may take advantage of the defect of parties upon the trial.

If it be necessary for the protection of the rights of a defendant that other persons, who have a joint interest with the plaintiff, should be brought before the court, he may unquestionably cause this to be done; but in such a case it should be done by a proceeding in the nature of a cross-action against the plaintiff and such third party.

In the above stated case the defendants proposed to prove by parol evidence the contents of an alleged assignment or bill of sale of the slaves in controversy from the plaintiffs to the defendant in execution, but there was no proof before the court of the execution of such instrument; nor does the exception to the ruling of the court show that they proposed to furnish such proof before proving the contents of the instrument: It was held that such parol evidence was properly rejected, and if the defendants embraced this object also in the proposed testimony which was rejected by the court, it should have been shown by their bill of exceptions.

He who complains of an erroneous ruling of the court must preserve such evidence of it in the record as will leave no doubt about the matter in the appellate court.

See this case for circumstances in which a person having become a party to the proceedings in a suit, was held not to be concluded by the judgment in such suit.

Whether a claim is barred by the statute of limitation is a question for the jury to determine. If the evidence in support of such a plea be conflicting, this court will not disturb a judgment rendered upon the verdict.

The possession of a cotenant, or a tenant in common, will be presumed to be in right of the common title, and he cannot claim the protection of the statute of limitations against his cotenant unless it clearly appears that he has repudiated the title of his cotenant, and is holding adversely to it. In such cases the acts and declarations of the party in possession are to be construed much more strongly against him than when there is no privity of title.

If newly discovered testimony, offered in support of an application for a new trial, would not have been admissible if offered upon the trial, it is not error to refuse the application.

ERROR and APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

Amanda J. Trammell, the appellee, and Jarret Trammell, her husband, on the 8th day of April, 1858, instituted proceedings in the district court of Gonzales county, against J. W. E. Wallace, for the recovery of a slave named Stephen, or his reasonable value, which they alleged was fifteen hundred dollars. They alleged that Amanda J., in the year A. D. 18--, intermarried with one Nicholas Trammell, who died in 1853, leaving the said Amanda J. his widow and only surviving heir; that Nicholas died seized and possessed of the slave Stephen; that the slave for several years before the institution of this suit had been in the possession of Henry Trammell; that he had been recently transferred to the possession of the defendant, Wallace, who then had him in possession.

The defendant, Wallace, filed a general demurrer and denial. In an amended answer he pleaded specially: “That the plaintiffs ought not to have or maintain this action against them because, he says, that on the first day of January, 1855, Nicholas Trammell, for himself and Jarret Trammell, one of the plaintiffs in this suit, by the said Nicholas Trammell, as his next friend, joined by other parties representing themselves as heirs-at-law of Nicholas Trammell, deceased, instituted a suit in the district court of Gonzales county against Henry Trammell, to recover from him the possession of certain negro slaves, including the slave Stephen, sued for in this action, or the value of said slaves and hire of same, alleging in said suit that the negroes were part of the estate of said Nicholas Trammell, deceased; and that they, as the heirs-at-law of said Nicholas Trammell, were the lawful owners of the same. In 1855, the plaintiffs in this suit filed a plea in the cause aforesaid, alleging, in substance, the same facts set forth in this cause; and he charges that the plaintiffs were, to all intents and purposes, parties to the said suit against Henry Trammell; that they appeared and were represented by attorneys in said suit, and filed their pleas therein, relying for a recovery of the negroes and damages claimed in said suit upon the same state of case which is now represented by them as plaintiffs against this defendant. The plaintiffs in said cause, in 1855, recovered a verdict of the jury and judgment of the court for the negroes sued for, including the negro Stephen or their value in case the said Henry Trammell failed to deliver possession of the said negroes within twenty days from the rendition of said judgment, and for the hire of the same. Executions were regularly issued on said judgment, and levied on the negro Stephen and other negroes to satisfy the same. On the 1st day of February, 1858, the said Henry Trammell executed his delivery bond for the delivery of said negroes to the sheriff of Gonzales county. The said bond was forfeited, and was so indorsed by said sheriff. Execution was issued thereon, and was levied upon said slave Stephen and other negroes. In pursuance of said judgment, forfeited bond and execution, the said slave Stephen and other negroes, so levied upon, were sold at the courthouse door of Gonzales county, as the law directs, on the first Tuesday in April, 1858, and this defendant became the purchaser of the said negro Stephen, at said sale, for the sum of $950, he being the highest and best bidder for the same. This defendant further alleges that he was an innocent bona fide purchaser of said negro, at said sale, and paid to the said sheriff said sum in cash for said negro, believing that he was purchasing a perfect title, and without any notice or knowledge of any outstanding title or claims in any one.”

He further pleaded that the plaintiffs stood by with the full knowledge of said judgment, execution and forfeited bond, at said sale, and did not assert any title or claim to said negroes, but acquiesced in said sale. He further alleged that the plaintiffs, before the rendition of said judgment, had sold and transferred to Henry Trammell all their rights, title and interest in the estate of Phillip Trammell, deceased, and of Nicholas Trammell, deceased, including their interest in the slave Stephen, and that said interest passed by said sheriff's sale to this defendant. He charged fraud and combination between plaintiffs and Henry Trammell to cheat and defraud this defendant; that said assignment was made secretly to more effectually accomplish their fraudulent purposes, and prayed that Henry Trammell be made party plaintiff in the suit. At the same time and in the same court the same plaintiffs instituted suit against James Baily for the recovery of a slave named Addison, or his value. The plaintiffs set up the same title to this slave as they did to the other; Baily pleaded the same character of defense, and the two cases were consolidated. The defendants also pleaded the two years limitation. The death of Jarret Trammell was suggested, and the cause was prosecuted in the name of Amanda J. Trammell.

On the trial the plaintiff proved that she intermarried with Nicholas Trammell, Jr., in 1853, in the state of Arkansas; that they removed the same year to Lagrange, Texas, where Nicholas Trammell, Jr., died; that the slaves in controversy were the property of Nicholas Trammell, Jr., and part of the estate inherited by him from his father, Phillip Trammell. Nicholas Trammell, Jr., at his death, left neither father, mother, brothers, sisters nor children. Some twelve months after the death of Nicholas Trammell, Jr., his widow, Amanda J.,...