Markham v. Carothers , 47 Tex. 21 ( 1877 )

Gould, Associate Justice.

It appears, by the bill of exceptions, that the court excluded the testimony of J. M. Bountree on the ground that Ms competency was questionable, and on the further ground that the evidence offered was not evidence in rebuttal. We are of opinion that neither of these grounds are maintainable.

After Ms disclaimer, J. M. Bountree was not treated as a party to the suit, wMch thereafter proceeded to trial as a suit by the administrator of Carothers’s estate agamst Irene Bountree. As he was not a party to an action by or against an executor, administrator, or guardian, he was not prohibited by the statute from testifying as to transactions with the deceased. (Paschal’s Dig., arts. 6826, 6827.) We have heretofore held that the exceptions to the rule, that a witness shall not be excluded because he is a party to or interested m the issues tried, will not be extended by construction. (Roberts v. Yarboro, 41 Tex., 449.)

In regard to the other ground, that the evidence offered was not in rebuttal, it is to be observed, that whilst the case stood on the docket as one in which the administrator was plaintiff, that on the issues made by the pleadings, the defendant had the affirmative, and was entitled to the advantages of that position. Her answer or plea of intervention admitted that the legal title was in the estate, .but claimed that to the extent of one half interest, this legal title was held in trust for Irene Rountree. Under these pleadings, the plaintiff was not called on to prove his title. His case was made out by the admissions of the defendant, and the issue to be tried was, as to the existence or non-existence of the trust alleged by her. The burden of proving that trust was on defendant.

In this attitude of the case, the defendant introduced evidence that tire purchase-money, in consideration for which the property was conveyed to Carothers, was paid by J. M. Rountree, and the deed made to Carothers at his request; and evidence of three witnesses, of admissions made by Carothers, that one half of the property had been paid for with the money of Irene Rountree, and belonged to her— two of the witnesses testifying to his anxiety on his death bed to make her a deed thereto.

The defendant having announced that he closed his testimony for the present, the plaintiff introduced witnesses who were also with Carothers during a part of the period of his last illness, and the purport of whose testimony is to weaken and discredit the evidence as to Carothers’s admissions of the trust. One of the defendant’s witnesses had testified that Dr. Markham was present when Carothers made such admissions, but Markham failed to corroborate his testimony. Amongst otherthings, a paper purporting to be the last will-of Carothers, executed during his last illness, but which was refused probate because the subscribing witnesses were legatees, was introduced, in which occurs the following: “I own the Bountree brick store; to my niece, Emma Briscol, now Mrs. Mxon, I give that house and lot. This I do out of pure affection.”

The defendant introduced J. M. Bountree, (not introduced before,) who testified that he, himself, paid one half the purchase-money of said house and lot, and whose testimony was further offered to prove that one half of said house and lot was paid for, the title taken in the name of Carothers, for the use and benefit of said Irene. The purport of the testimony offered and excluded, was to strengthen the evidence originally introduced as to the trust.

This additional testimony was rendered proper by the effort of the plaintiff to discredit the statements of the witnesses originally introduced. Such additional testimony was a “direct answer” to that produced on the part of the plaintiff; and the rule is said to be “that anything may be given in evidence in reply, which is a direct answer to that produced on the part of the defendant.” (Scott v. Woodward, 2 McCord., 161; Bouvier’s Law Dic., Title Rebuttal.)

Tested by this rule, the evidence offered was evidence in rebuttal. In holding that it was not, we think the court overlooked the fact that the defendant had the affirmative of the issue. It is to be observed that the exclusion is not placed by the court on the ground that the defendant ought, in the outset, to have put his entire case in evidence. It is believed that in this State the usual practice has been as indicated by Mr. Greenleaf in the following extract: “In some of the States the party is only required to make a prima facie case in the opening, and may reserve confirmatory proof in support of the very points made in the opening, till he finds on what points his opening case is attacked, and then fortify it upon those points.” (1 Greenleaf, Redf. ed., sec. 469a.)

•We recognize the rule that in regard to the time and manner of the introduction of testimony, much is left to the discretion of the presiding judge; but as the evidence in this case was excluded, not because the presiding judge held that in fairness it should have been introduced before, but on legal grounds, which are untenable, we hold that its exclusion was erroneous.

As this error requires a reversal of the cause, it is not proposed to consider the charge of the court further than may be necessary to indicate our views of the law. In so far as the jury were instructed that a verbal trust in lands must be established with clearness and certainty, the charge was correct and appropriate. The principle involved is one of the first importance to the stability and certainty of titles, and it is a principle which it is the duty of the court to enforce by granting new trials, where it has been disregarded by juries. But it may be questioned whether, in defining clearness and certainty as meaning that the “ trust should be established beyond a reasonable doubt,” the court did not use an expression so familiar to the criminal law as to make it inappropriate, and liable to be misunderstood in the connection used. (Cuney v. Dupree, 21 Tex., 218; 1 Lead. Cases in Eq., 194, 201, and references.)

Under the pleadings, there was no issue as to the intent of J. M. Rountree to hinder or defraud his creditors in causing the deed to be made in the name of Carothers; and the court should not have given any charge on that subject. (Cuney v. Dupree, 21 Tex., 218.) Whether the court erred in the substance of the charges given and refused on this subject, is a question on which, in the present attitude of the case, we do not feel called upon to pass.

Reversed and remanded.