Allen v. Atchison , 26 Tex. 616 ( 1863 )

Moore, J.

The issues involved in this case, were fully and ■clearly presented to the jury by the charge of the court, and we see no reason why them finding should be disturbed. It would be ■a tedious and unprofitable task to discuss, in connection with the voluminous pleadings and testimony that are presented in the record, each of the several charges given by the court. Such a -discussion would result merely in an exposition of the issues that might in our opinion arise under the pleadings, and of the facts to which there -is evidence tending in proof; but would have little •effect in elucidating any legal proposition of importance. To do so under these circumstances, we should therefore regard as an unnecessary consumption of time. The court correctly refused to .give the charges asked by appellant, which were rejected. As 'stated by the court, some of them had been already sufficiently given, while others presented one side of the case too prominently, so as to mislead the jury. They are generally argumentative in their character, and based upon an assumption as to the existence -of facts which were involved in controversy. One of the most 'serious of appellant’s grounds of complaint to the charge given by "the court, and for refusing to give those asked by her, rests upon the construction which it is insisted should be given to the records of the Probate court. It is contended, that as the order of court confirming the sale of the property purchased by Waddel and Gosler directed the administrator to retain a lien upon it to secure the unpaid purchase money, this was constructive notice to all parties subsequently dealing with them. This assumption is manifestly incorrect. It cannot be maintained as a sound legal proposition. Notice of a lien upon the property, if one Was retained, should have been given by having the instrument by which it was created, duly registered in the manner pointed out by the statute for the record of deeds and mortgages; and if this was not done, third parties could not be affected by such lien, unless they were notified of it; or were, from other facts, charged with notice of it.

The charge given by the court, as to the effect of the answers of the defendants, to the interrogatories propounded to them, was in strict conformity with the statute, (O. & W., art. 480,) and was of course correct.

The appellant did not object to the answers of the defendants to the interrogatories, which she sought to exclude as evidence from the jury, in the manner required by law. (O. & W., art. 477.) It is specifically directed that the exception to the answers shall be made in writing. Whether the objections must he taken before the commencement of the trial, or when the answers are offered in evidence, is not positively determined by the statute, though the object and purpose of the law would indicate that it should he done before going into the trial. This seems to have been the practice that has heretofore received the sanction of this court; (See Hadley v. Leigh, 8 Tex., 129; Dikes v. De Cordova, 17 Tex., 618.)

There was no error in overruling the defendant’s exceptions to the petition. The petition set forth a good cause of action against the defendant Holt. He cannot object that the administratrix had not followed the provisions of the statute, in disposing of the property belonging to her intestate, if he was cognizant of the facts in relation to it when it came into his possession. If he was informed of the terms and conditions upon which Waddel and Gosler had acquired and held the property, when he became a partner with them, he was bound by them. On the issue of fact, the jury have found against him, and it cannot be said that their verdict is either without or against the testimony. Let the judgment be affirmed.

Judgment affirmed.