Castleman v. Sherry , 42 Tex. 59 ( 1874 )

Reeves, Associate Justice.

The evidence establishes the sale by appellee to appellant of the land in controversy. It was admitted by appellant in his evidence before the jury. The general denial put the plaintiff upon proof of the allegations of his petition, but it is apparent that the sale and purchase was not seriously contested, and the real grounds of defense are disclosed in the special answers. It is alleged in substance- that the plaintiff" never paid for the land, that the sale was verbal, and that defendant never made a written title to plaintiff for the slave. The title to the negro woman was not put in issue by the pleadings. It does not appear that the plaintiff was asked to make a bill of sale to the slave, or that he refused to do so. The defendant took possession, and his right was not questioned before the destruction of slavery by the Government. The title to the slave vested without a bill of sale, as decided in the case of McKinney v. Fort, 10 Tex., 220, and referred to in the brief for appellant. It does not appear that the court submitted the evidence as to a rescission of the contract to the jury, or that the evidence was objected to by plaintiff" before the jury. This evidence may have had some influence on the verdict, but as the case will be disposed of on other grounds, it is not deemed necessary to examine it.

Under the pleadings, the charge of the court that the plaintiff" must prove that he had a right to sell the negro woman, and that he had made and delivered to the defendant a bill of sale for the woman, or had offered to do so before he could recover in this suit, is believed to be erroneous.

The charge is further objectionable as being upon the weight of the evidence, when the court tells the jury that evidence of the admissions of a party is regarded as dangerous and liable to abuse, &c. Such expressions as these, found in every treatise on evidence, are to be regarded as matters of argument rather than rules of evidence having the force of law, upon which the court should instruct a jury. They should be left free to make up their verdict, judging for themselves of the credibility of the witnesses and of the weight to be given to the evidence, under instructions by the court declaring the law applicable to the case, the verdict being subject to the action of the court on a motion for a new trial.

The instructions asked by plaintiff, in substance, that if he had proved payment of the purchase money or the consideration, and had been put in possession of the land under his contract of purchase by defendant, and had made valuable improvements, should have been given to the jury. Such acts as these, though the contract was in parol, would take the case out of the statute of frauds requiring contracts for the sale of land to be in writing, and specific performance would be dcreed, as this court has frequently decided heretofore, and at the present term in the case of Arm Berta Lodge v. M. J. Leverton, from Anderson county. In this case these questions, and what acts will amount to part performance, and when specific execution of the contract will be decreed and when not, are so fully examined in the elaborate opinion delivered by Justice Moore, that a reference to the case is deemed sufficient without further citation of authorities.

For error in the charge of the court, the judgment, is reversed and remanded.

Beversed and remanded.