Coats v. Elliott , 23 Tex. 606 ( 1859 )

Wheeler, C. J.

The objection to the judgment, that Jernigan was improperly made a party defendant, is not tenable. The right thus to make the fraudulent vendee of a defendant a party, under circumstances like the present, was maintained by the decision of this court in the case of Oliver v. Chapman, 15 Texas Rep. 400. (McAnelly v. Chapman, 18 Id. 198.)

Jernigan was a volunteer in becoming a party to the controversy. He undertook to take control of the subject-matter in litigation between the original parties, and he was very properly made a party to the suit in which he had intermeddled, to the prejudice of the plaintiff’s right, in order to prevent multiplicity of suits; and to enable the court to pronounce, and give effect, in this suit, to the legal consequence of his interference with the property, pendente lite, and thus, by its judgment, bind all the parties claiming an interest in the subject-matter in litigation.

It is scarcely necessary to say, that the sueing out of the writ of sequestration, by the plaintiff, did not operate a transfer of the title to the property, or enable the defendant to dispose of it out of the custody of the law, and the power of the court. The authorities cited to maintain her right to do so, manifestly have no application to the. case.

It is further objected to the judgment, that the court erred in refusing to admit evidence offered, to prove that the defendant, Coats, was an “ ignorant and simple-minded woman.” It is to be observed, that the proposed evidence was not relevant to any issue formed by the pleadings. But it is insisted, that it was admissible as rebutting evidence, to qualify or explain the conduct and admissions of the defendant. It may readily be conceived, that there may be cases where it will be very material to know under what circumstances a party made admissions, or adopted a certain course of conduct, and whether he acted with knowledge, or in ignorance of his rights; and in connexion with other circumstances, it may be very proper to submit to a jury, to be considered by them in passing upon the acts or admissions of the party, evidence of the character of that which was proposed in the present case. But in the facts or circumstances of this case, we see nothing to require the admission of such evidence. It might not have been improper to admit the proposed testimony. But it is not perceived that it could have had any influence upon the decision of the case. We see no cause to believe, that the jury would have been thereby any better informed, as to the view it was proper for them to take of the conduct of the party, or the merits of the case.

The court must have a discretion to fix some limit to the admission of evidence, even having some remote possible bearing upon questions which it is proper for the jury to consider; and from the evidence in the case, the court may very well have concluded, that the proposed evidence would add nothing material to the information which the jury already possessed; and that they were as capable of forming a just estimate of the weight to be attached to the acts or admissions of the party, without as with it. We are not aware of any rule of evidence that required the court to admit the testimony, and are of opinion that the refusal to do so is not error.

It is further insisted, that the court erred in admitting in evidence the plaintiff’s amended petition, correcting the averment in his original petition, respecting' the period of the defendant’s adverse possession. It is contended, that the plaintiff is bound by the statement in his original petition. We do not so regard it. The admissions of attorneys which bind their clients, as justicial or, as they are called, solemn admissions, are such as are made for the purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. (1 Greenl. Ev. §§ 186, 205.)

The present was not such an admission. It was not made, or intended, as an admission. It was simply a case of bad pleading. It was the case of a party so stating his cause .of action, as that, upon the face of the petition, it appeared to be barred by the statute of limitations. But it cannot be doubted, that the petition was amendable in this respect, as well as in any other. The mistake must have been fatal to the plaintiff’s case, if he had not seen proper to amend. But, unquestionably, it was competent for him to amend, by so correcting his averments, as to show that, in point of fact, his cause of action was not barred. It is every day’s practice to permit a party, who has failed to state a cause of action, so to amend, as to state one; as, if upon the face of the petition, a demand, upon which the suit is brought, appears to be barred, the court will permit the plaintiff to amend, by alleging a new promise, which will take the ease out of the operation of the statute. The present is not distinguishable from that case. The plaintiff was not concluded by his averments in his original petition. (Epperson v. Young, 19 Texas Rep. 475; 14 Id. 618.) Nor should the mistake have been”the occasion of any embarrassment to him, after the amendmentj-had been allowed, by which it was obviated. The court might very properly have declined to permit the original petition to be submitted to the jury. They had no concern with the pleadings; nor were they the proper subject of evidence or discussion before the jury. But the original petition having been admitted in evidence, there was no error in permitting the amendment also to be read in connexion with it.

The defendant having set up a claim to the slave, as her separate property, the burden of proof was on her, to establish her title by clear and satisfactory evidence. There was no proof of the amount of the defendant’s money employed in the purchase. There is a failure of evidence to prove title in her to the property, as having been purchased with her separate funds. Her title and right to recover the slave in controversy, therefore, rest solely on the naked declarations of her deceased husband, testified to by two witnesses, and one of them her son and a minor, several years after the decease of her husband. It must be admitted, that this is the weakest and most unsatisfactory kind of evidence. If it be deemed sufficient evidence of title, it is certainly liable to much animadversion, on account of its unsatisfactory and dangerous character, and ought to be received and acted on by a jury with great caution. (Boyd v. McLean, 1 Johns. Ch. Rep. 582, 590.)

It appears by the statement of facts, that the credibility of the witnesses was the subject of observation before the jury. It was a subject proper for their consideration. The jury are not obliged to receive the statements of a witness as true, because he is not impeached by other witnesses upon the stand. It was for them to judge of the credibility of the witnesses, and the weight of evidence. The question of fact was fairly left to their decision by the charge of the court; and in view of the character of the testimony, we cannot say, that the verdict was contrary to the evidence. W,e are of opinion, that there is no error in the judgment, and it is affirmed.

Judgment affirmant'