Baily v. Trammell , 27 Tex. 317 ( 1863 )

Moore, J.

In view of the facts disclosed by the record in this case, it cannot be said that the court erred in excluding the parol testimony of the contents of the assignment, alleged to have been made by Jarret and Amanda J. Trammell to Henry Trammell. There was no necessity for the defendants making Henry Trammell a party to the suit. Their defence could have been urged as effectually without, as by joining him. There was no better reason presented for making him a party in this case, than exists in every other in which the defendant charges that the title asserted by the plaintiff is in a third party. If there was a combination and conspiracy between the plaintiffs and Henry Trammell to prosecute this suit in their names, although if a recovery was had, it was to enure to his benefit, the defendants, by the allegation and proof of the fact, could have availed themselves of any defence to which they were entitled against him, as fully as if he had joined in the suit. In such case, his acts and declarations, or secondary evidence that would be admissible, if he had been a party, would be equally as effectual against the plaintiff, as if he were joined with them. But a defendant does not entitle himself to the use of secondary evidence merely by the charge of a combination and conspiracy between the plaintiff and a third party, who has, as he alleges, control of the primary evidence upon which he rests his defence. He cannot, by simply making such a charge in general terms, with the prayer that such party be made a plaintiff in the case, deprive the plaintiff of the right to claim that secondary evidence should not be received to defeat his action, until it was made to appear that the primary evidence could not be procured.

Nor do we know of any 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 this 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 a defect of parties upon the trial. But the defendant has no right to thrust into the cause a third person, as a party plaintiff, against the wishes, and without the assent of the original plaintiff. The action of the court ordering Henry Trammell to be made a party plaintiff, was for this reason erroneous, but it was an error of which the plaintiffs in error cannot complain. If it is 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 case it should be by a proceeding in the nature of a cross action or bill against the plaintiff and such third parties. Although such proceeding will be treated as a part of the original suit, yet, in this branch of the litigation, the original defendant has become the actor, and has the rights, together with the responsibilities of a plaintiff, and the other parties occupy the position, and have the privileges of defendants.

There was, however, a still more conclusive reason for refusing the parol testimony offered by the plaintiffs in error. The bill of exception shows that they proposed to prove by parol the contents of the alleged assignment, or bill of sale. There was no proof before the court of the execution of such an instrument, nor does their exception to the ruling of the court show that they proposed to furnish it before proving the contents of the instrument. If they embraced this object also in the proposed testimony which was rejected by the court, it should have been shown by their bill of exception. 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 tribunal.

We are of the opinion that the plaintiff below, Amanda J. Trammell, was not concluded by the judgment in the suit by the heirs of her first husband, Nicholas Trammell, Jr., against Henry Trammell. It is true, during the pendency of that case, she and her second husband asked to be made defendants, and subsequently a number of papers were filed, with their names attached as parties. But there was no action of the court upon their application to be made parties defendant. Her husband was one of the original plaintiffs, and although when joining her in the application to be made a defendant, he also asked to be stricken from among the plaintiffs, yet no notice was taken by the other plaintiffs of this request, and it was never granted by the court. The interest of Amanda J. Trammell in the suit, if ever recognized as a party, seems to have been wholly lost sight of both by the litigants and court before the final judgment. No notice seems to have been taken of her claim to the property. Her husband, Jarret Trammell, appears to have been still recognized as a plaintiff, and, as such, was a party to the judgment recovered by them. Under these circumstances, we cannot regard her as concluded by the judgment in that case. The record in it, no doubt,, shows great irregularity, but we cannot say, because of the irregularity, that her rights have been lost by a judgment in which they, seemingly, were never considered. It was for those who claim the benefit of the judgment, to see that the record is suffificiently full and explicit to sustain their construction of it.

Neither coverture nor infancy gives a license to a married woman, or an infant, to commit fraud, and for this reason, in some cases, a title to them property will pass, as it is said, by an estoppel in pais. But this doctrine is not applicable to the present case. It is not shown that Askey was Mrs. Trammell’s agent at the date of the sheriff’s sale, under which the appellants claim, or that heSvas agent for her at any time except with reference to this suit. Nor does it even appear that he was present at the sheriff’s sale. That he was in town on the day of sale is wholly immaterial.

In answer to the defence of the statute of limitation, it is sufficient to say that the evidence was conflicting. It was a question for the jury 'to determine. The answer of Henry Trammell, in the suit of the heirs of Nicholas Trammell, Jr., against him, filed after Mrs. Trammell’s marriage with her second husband, recognized her title. Unless the statute commenced to run previous to her marriage, it did not bar her recovery. Henry Trammell seems, also, to have had interest in the property. The possession, of a co-tenant or tenant in common will be presumed to be in right of the common title. He cannot claim the protection of the statute, unless it clearly appear that he repudiated the title of his co-tenant, 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.

The application for a new trial was properly refused. The-newly discovered testimony would not have been admissible, if offered upon the trial. If it had been before the court, it could, in no way, have affected the result of the case. The statute regulates the manner of conveying the separate property of married women. If their mere verbal admissions that they had sold and conveyed their property, will be sufficient to preclude their recovery,, the statute would be futile and altogether nugatory. These alleged declarations and admissions have not been the foundation of any action of the appellants, or any other person. There has been no act based upon their supposed truth. Their exclusion from the jury place's the parties in no worse attitude than they were before they were made. If they were admissible as evidence in this case, it would be upon the broad ground that the parol admissions of a married woman, of a sale of her separate property, may, in any case, he used to defeat suit by her to recover the property. That she cannot, in this way, divest herself of title, or be precluded from a recovery is too cigar for argument. The judgment is affirmed..

Judgment affirmed,.