Cheveral v. Bowman , 2 Tex. L. R. 734 ( 1884 )

Opinion by

White, P. J.

Appellant sued appellee for fifty cords of wood, of value of $!• per cord, in justice’s court, Harris county, precinct number two, and as owner thereof and entitled to possession of same, sequestered the wood under statutory affidavit and bond. The justice of precinct number two, being disqualified, the cause was transferred to precinct number one. On 29th January, 1883, the cause was heard, and it was adjudged that appellant herein take nothing, and appellee go hence discharged, and recover of plaintiff all costs.

The cause was, by appellant herein, appealed to county court of Harris county, and on 29th of May, 1883, was tried de novo in county court and a verdict was found by the jury in favor of defendant below, appellee heroin, for $132, value of forty and one-half cords of wood, at $1 per cord, and judgment entered thereon that defendant below, the said appellee, “is enfitled to recover his judgment against said plaintiff, C. H. Chovoral, for the property described in the petition,” and it was so ordered and adjudged, and that writ of possession issue for-same, then in possession of the constable, neither party having replevied, and all costs of both courts adjudged against appellant, and the sureties on his appeal bond. Motion for new trial was overruled and cause brought up by appeal.

The pioperty in question was bought and paid for by Peter Garrity, deceased, in March, 1882; it remained in his possession until his death which occurred in June, 1882, during which time he disposed of a part of the property. Prom the date of Garrity’s death until the qualification of W. H. H. drank as administrator, the property lay at Dolen’s Landing, on Buffalo Bayou, and was cared for by Doleu as a part of Garrity’s estate; it was deliver'll to tlu; administrator as the property of tin* estate, and by him sold as such, under the order of the prohate court, and purchased by appellee after due inquiry us to the tille ot Garrity, made at the town of Lynchburg, where both Garrity and appellant lived. Crank, administrator, testified that appellant came to his office before the sale of the wood and told him that he, Chevernl, had a claim against Garrify’s ¡'state lor money advanced for funeral expenses ami tools, but did not mention anything about the. wood, or that be bad any claim against the wood, ami that appellant knew that he was administrator of Garrity’s estate and knew that he was claiming this wood ¡is part of said estate,, and that under the order of the probate court he sold said wood to appellee and received the purchase money therefor.

At the time of Garrity’s death, In- appears to have hail both the legal title anil the possession of the property, anil his administrator so received and t roa ted it as part of his estate. Before the sal»*, appellant, who became the purchaser, made all the necessary inquiries from those most likely to know, with regard to the title.

Appellant insists that the rule of careat emptor should apply in this case. In Levy v. Berry, it was said by our Supreme Court:

“It is true that the doctrine of oaoeat emptor is said to apply to sales by administrators. But the, doctrine can*only apply so far as to effect a purchaser at an administrator’s sale with notice of every thing that he could have ascertained by the use of ordinary diligence.” 22 Texas, 371.

Here we have a case where appellant is seeking to maintain, not an open and notorious title and possession, or either of these, but on the contrary, a title dependant alone upon the establishment of a secret trust. We can scarcely imagine that appellee would have been able by any greater amount of ordinary inquiry and diligence under the facts exhibited, to leave ascertained the existence of appellant’s claim to the property.

The only issue in the case was one of fact, and we cannot see how the jury could have been misled as to that fact by the charge of the court, even admitting, for the sake of argument, that the charge was not as full as it might have been. “A charge, in itself erroneous, will not, in a civil case, be sufficient ground for reversal when no exception is taken or additional instruction or counter charge asked, \inless it clearly appears that the jury were misled by the charge given and complained of. (Cook v. Wooters, 42 Texas, 294; Texas Court of Appeals, civil cases, § 710.

We see no reversible, error in the record, and the judgment is affirmed. Affirmed.