Young v. Epperson

Hemphill, Ch. J.

This case has been twice before this-Court. (2 Tex. R. 417; 8 Id. 135.) It appears now on different grounds from any assumed at the former trials. After •the cause was remanded a second time, the defendant pleaded the Statute of Limitations, and his infant son, William H. Young, intervened and pleaded property in himself, through Ms mother, to the negroes in controversy, and set up also the Statute of Limitations. His plea of the Statute was, on exception, stricken out; and on the trial, judgment went for plaintiff.

Various errors have been assigned. Of these I shall first consider the error which is the second in the order of assignment, viz: that the Court erred in excluding the testimony of Mrs. Rogers. The defendant insists that he was entitled to the benefit of this testimony, though not offered until the plaintiff had closed his rebutting testimony, on the ground of surprise at the variance between the rebutting proof of plaintiff and his admissions in the pleadings, as to the time of demand by plaintiff, of the slaves.

The plaintiff, in the petition, had literally pursued the usual form of a declaration in detinue, with all its fictions and absurdities. Although, from the plaintiff’s replication, which should have been incorporated, by amendment, with the petition, it appears that the slaves were loaned to the defendant, to be re-delivered on request; and although it would be quite absurd for the plaintiff to demand a return of the slaves on the day he had loaned them, yet such is the usual form of allegation in detinue. The pleadings, under our system should state facts truly, and the plaintiff made some attempt at this, by stating the time of delivery to the defendant, as it existed, dating it from the bill of sale. His misfortune was in attempting to commingle the fictions of the Common Law system of pleading, with the actual facts as they should be averred under our system. It would have been better to pursue the one or the other—either state the facts as they existed or were susceptible of proof, or state the whole transaction fictitiously, not only the time of the demand by plaintiff and refusal by defendant, but also the time of the original delivery to defendant, so as to bring the whole within the Statute of Limitations. But by stating the actual fact as to the time of delivery to defendant, and then by following the fictions of form stating the demand and refusal as accurring also on the same day, the plaintiff shows by his own averments, that his cause of action was barred by the Statute, as the action was not commenced for ¡some years afterwards. It would, however, be somewhat too severe, to condemn a party to the loss of his rights, for attempting to pursue an incongruous fiction, and following that only in the part which operated to his prejudice; yet, although the Court would allow him to establish, by proof, the time of demand and refusal, so as to bring his case out of the bar of the Statute, his admission by his pleading would relieve the defendant from the necessity of offering proof in the first place to sustain the plea of limitation. The demand and refusal had been averred to be several years before the commencement of the action, sufficient to operate as a bar, and until the plaintiff offered proof that in fact the demand had not been made, or in other words, that the adverse possession had not commenced at the time averred, but afterwards, it was not incumbent on the defendant to adduce his proof.

I have sufficiently commented on the absurdity of alleging the loan of property and demanding its return on the same day, and it may be said that the defendant should not have relied on any such absurdity, but should have offered proof as to the actual time of demand, without waiting to ascertain whether the plaintiff would attempt to establish it by evidence. But, if the averment of the original petition, as to the demand, could be disposed of in this way, yet, from the replication, as it is called, it appears that some arrangement was attempted between the parties in 1843, the plaintiff promising to make certain dispositions of the slaves, provided they were restored to his possession, and it is averred that such proposition was rejected by defendant’s keeping and detaining such property in his possession. This may not be equivalent to such demand and unequivocal refusal, as would be necessary to show adverse possession in the defendant. This, if the facts were proved, would be for the jury to determine; but the defendant may have believed such averment to be an admission that he had asserted property, and had repelled absolutely and unconditionally the claim of the plaintiff; and, with this impression, he had a right to decline proof of the time of demand, until the plaintiff had shown that his own averments were not true in fact, but that the demand was of a subsequent date.

This proof was not offered by plaintiff at the opening of the cause. It was brought out in the rebutting’ testimony, and it then appeared that the demand was not made until the Fall of 1844, less than two years before the commencement of the action, and that the plaintiff, now deceased, was not in Texas in 1843. This was contradictory of the admissions of plaintiff, in his pleadings, relative to the demand in 1842 and 1843, on which the defendant had relied ; and he proposed, in answer, to introduce the testimony of Mrs.' Rogers, to show the time of demand. What she would have proved does not precisely appear from the bill of exceptions. But the defendant, in his brief, says that she would prove that the plaintiff, deceased, was in person in Texas and made the demand in 1843. The evidence was refused, not on the ground of immateriality, but, as may be inferred, because it was offered after the close of the rebutting proof. If necessary to the ends of justice, the evidence should have been admitted, even at that stage of the trial; and, under the peculiar circumstances of the case, the Court erred in not allowing it to be received.

How far admissions in pleadings, relative to demands, should conclude the plaintiff, when the time or other circumstances of the demand, as they are stated by the plaintiff, operate to the benefit of the defendant, need not be discussed. They are often loosely made ; but they may frequently be the only proof on which the defendant can rely, as in case of verbal demands, when no witnesses were present, at least none on behalf of defendant. But this is not the point immediately for consideration ; for, whatever may be the exact force of admissions, es-. pecially when the pleadings show a tendency to fiction, they are of sufficient weight to allow the defendant a fair opportunity of proving the real state of the facts, and this is the extent of our decision on tills assignment.

Another supposed error is in excluding the plea of the Statute of Limitations from the answer of intervention of William H. Young, the minor.

What purpose was to be effected by setting up a title, by Statute of Limitations, in the son, Wm. H. Young, it is difficult to perceive. He claimed through his mother, and if she owned these slaves at the time of her death, he did not need the protection of the Statute; for it could not run against him during minority ; at least, there are no circumstances shown in this case, in which the Statute might run against a minor. If the benefit of the Statute was to be claimed for the minor, on such facts as were proved by the witnesses, viz : that the defendant, Hugh F. Young, had acknowledged by words and acts that the slaves were the property of his wife, and of the minor, this must be acknowledged as one of the most ingenious schemes to transmute property and defraud generally, yet devised. An insolvent debtor has but to sell his property to a fraudulent vendee, or to some indulgent creditor, who will, from kindness, permit the property to'remain with Mm, and then have the bill of sale duly recorded, as was the case in this instance. The bill of sale will deter creditors from asserting their rights, and the debtor by giving out at the proper places that'the property belongs to his wife or child, might, at the end of two years after adverse possession really commenced, defeat the claim of his friend, who had gratuitously loaned him the property, and at the same time he would defeat his creditors, because the property would not, by this adverse possession, be revested in Mm, but in his wife or child.

Such expedients ought not and cannot receive any countenance. If the rights of persons, who, from mere benevolence, loan property, are not to be particularly respected, public policy demands thát the rights of creditors should be regarded, and a device, equally well adapted to strip a friend or fleece a creditor, savors too much of fraud, to be tolerated. Constructive gifts to wives or children, at best, or under any circumstances, are not to be treated with special favor. They can easily be converted into instruments of the greatest injustice to the unwary, who rely in their transactions, upon the maxim that possession gives property.

Upon the whole there does not appear to be sufficient reason for reversing the action of the Court in excluding the infant’s plea of the Statute of Limitations. No doubt, in proper cases, an infant can claim by the Statute of Limitations, either affirmatively or negatively, as the case may be, and to the same extent that an adult may claim. But for what purpose set it up in this case ? If title can be claimed at all, against the plaintiff, by adverse possession, it can be claimed by the defendant, Hugh E. Young, whether he set it up for himself, his wife or .his child.

The Court instructed the jury, that if a loan of money was -'antended, to the defendant, in the first place, and. the bill of -.sale was taken merely as security for such loan, then it was to be regarded as a mortgage, and the mortgagee might assert his right of foreclosure. It perhaps would have been expedient to explain more particularly, that the right of foreclosure did not give a right to recover the property, but only to have it sold for the satisfaction of the debt; and that if they believed from the evidence, that a mortgage was intended, they should find that such was the fact. Judgment reversed and cause remanded.

Reversed and remanded.