Williams v. Talbot , 27 Tex. 159 ( 1863 )

Moore, J.

The record in this case discloses no error in the rulings in the court below, for which the judgment should be reversed.

The plaintiffs’ affidavit for a continuance was insufficient when tested by the rules governing an application for a first continuance. The affidavit embraced two grounds : First, to enable the plaintiffs to procure the testimony of Buchanan, a former translator in thfe general land office, for the purpose of showing the true date of the protocol, or grant to Purdy, of the league of land in controversy. Second, for want of "the testimony of a witness to whom interrogatories had been propounded for the purpose of disproving a statement made by another witness whose deposition had been previously taken by the defendants. The sufficiency of the showing for a continuance, upon the first ground, has not been insisted upon in argument by the counsel for the plaintiff, and it may, therefore, be regarded as having been abandoned. It evidently did not authorize or require a continuance. The residence of the witness whose testimony was desired was not stated, as required by the statute. And the letter of Crosby, which was attached to the affidavit for a continuance, and referred to as a part of it, negatived the fact upon which the application, in this particular, was rested. Nor was the other ground upon which the continuance was asked, entitled to a more favorable consideration. There had evidently not been such diligence to procure the testimony as entitled the plaintiffs to a continuance. The testimony which they desired to contradict, had been on file among the papers of the cause for nearly twelve months previous to plaintiffs propounding interrogatories to the witness, for the want of whose evidence they desired a continuance. The affidavit did not disclose the manner of transmitting the interrogatories, or the circumstances attending their efforts to procure the testimony with sufficient fullness, in view of the facts of the case as disclosed by the record, to enable the court to say that the plaintiffs had used due diligence to procure the evidence, and were authorized to have reasonably entertained the expectation that they would have procured it by that term of the court. (Mays v. Lewis, 4 Tex., 38; Johnson v. Evans, 15 Tex., 40; Williams v. Edwards, 15 Tex., 41; Baker v. Kelly, 16 Tex., 117; Parker v. McKelvain, 17 Tex., 157.) Nor did the intrinsic character of the testimony, for the want of which the continuance was asked, entitle it to any very favorable consideration from the court. On an application for a first continuance, a party need not state the facts which he expects to prove by his absent witness; but if he chooses to disclose them, the court may unquestionably take them into consideration in determining as to the propriety of granting the application. In this case the testimony, on account of which the continuance was desired, was altogether of a negative character, and was intended merely to contradict a witness who had been examined in chief by the opposite party, but on a matter that had been elicited from him on cross-examination by the plaintiffs, and in respect to which, it may be said, that they had made him their own witness.

If, however, there were any doubt as to the correctness of the ruling of the court upon the application for a continuance, the facts disclosed upon the trial of the cause made it very apparent that no injury had resulted to the plaintiffs by the refusal of the coait to grant it. If the witness had testified to the facts stated by the plaintiffs in their affidavits for a continuance, and also in the affidavit made in support of their motion for a new trial, it evidently could not have affected the decision of the case. The bond from Purdy acknowledged the payment in full by Robertson of the consideration or purchase money for the land. The defendants were not called upon to establish the fact by other testimony. If the plaintiffs controverted it, it was incumbent upon them to disprove it. Proof that a part of the consideration had not been paid in the manner stated by one of the witnesses, wopld certainly not do this. It may also be remarked, that there was ample proof of the payment by Robertson of the consideration for the land, aside from the acknowledgment by Purdy in the bond, or the testimony of the witness whom the plaintiffs desired to contradict. There was no bettor reason for the granting of a new trial, than in support of the application for a continuance, and it was properly refused.

The testimony, to the introduction of which the plaintiffs excepted, was certainly not pertinent to any issue in the case, and might have been properly excluded from the jury. But it would in no. way have affected the verdict. Its only object seems to have been to respond to an attack upon the character of the ancestor of .one of the defendants; and, if improper, it was induced by the like improper evidence offered in the first instance by the plaintiffs.

The final title for the league of land in dispute, and the contract between the grantee Purdy, and Robertson, both bear date on the 30th of December, 1834; and in the absence of all testimony on the subject, it must be presumed that the contract was. not executed until after the consummation of the grant. It is always to be inferred, in the absence of testimony to the contrary, that parties have acted within the scope of their legitimate authority. It will never be presumed that they have violated the¡ law when the reverse is equally consistent with the facts disclosed to the court. If the validity of the contract were doubtful, the long possession of the land by Bobertson, and those claiming under him, and that this fact was well known to Purdy, together with his frequent acknowledgments of its sale to Bobertson, and admissions that he had been fully paid for it, would tend strongly to establish it; and might, perhaps, without other proof, after so great a lapse of time, be sufficient to establish the defendants’ title.

The main ground upon which the plaintiffs relied for a recovery of the land was, that the contract between Purdy and Bobertson was illegal and void, because, as they insist, it was made in violation of public policy. The land in controversy was granted to Purdy as one of the foreign colonists introduced into the Nashville colony, of which Bobertson was at the time of his purchase the empresario. And the plaintiffs insist that the policy of the law, therefore, forbid Bobertson purchasing it. But they have cited no authority to sustain this assumption. Neither the executive or legislative authority in existence at that date forbid such contracts, or indicated that they were contrary to public policy; and they have never been so held by the courts. Under these circumstances it can hardly be supposed, after so great a length of time, that we should feel disposed to do so upon the mere force of polemic reasoning. It has not been insisted by the plaintiffs that the second bond or contract between Bobertson and Purdy was a mere substitution of the original obligation that had been given before Purdy received a title for the land, and when by law he could not sell it. It is, therefore, unnecessary to inquire what effect this, if so, might have upon the case. The judgment is affirmed.

Judgment affirmed.