R. C. Hawkins v. M. J. Lee and others, 22 Tex. 544

Wheeler, Ch. J. We are of opinion that the court erred in the sixth instruction, and that the verdict, in so far as it is a response to the sixth and seventh instructions, was contrary to law and the evidence. It appears that the slave, Zack, was given in exchange for a slave, Peter, which had been given to the former Mrs. Hawkins, by her father, in Mississippi, in 1819. It is agreed, that the common law of England was the law of Mississippi, except as altered or modified by statute.

It has not been shown, that there had been any such alteration or modification of the common law, in' Mississippi, affecting this case. By the common law, when a person takes an estate of freehold, under a deed, will, or other writing, with a limitation in the instrument, by way of remainder, of an interest of the same quality, to his heirs, or the heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor to the whole estate. (4 Kent’s Com. 215; Hancock v. Butler, 21 Tex.

Hep. 804.) The rule of the common law, applied to real property, enlarges the estate for life into an inheritance; applied to personal property, it makes the tenant for life absolute owner. (4 Kent’s Com. 227.) Irrespective of the question, whether the gift to Mrs. Hawkins, “and the heirs of her body,” could be established, as in this case, by parol; by the rule of the common law, Mrs. Hawkins became, by force of the gift, absolute owner of the property.

Being personal property of the wife, absolutely, in possession, the marital rights of the husband attached, and it became, by the common law, his property; for there is nothing in the language employed in making the gift, to exclude his marital rights. (Nimmo v. Davis, 7 Tex.

Rep. 26.) The principle which, at common law, governs gifts and conveyances of this nature, is, that, in order to exclude the marital rights of the husband from attaching, and converting the property to his sole ownership, there must be a clear and unequivocal intention manifested by the grantor, in the instrument giving or conveying the property, that the wife shall possess the exclusive interest in the property conveyed. It must be clearly manifest, either that the husband is excluded, or that the wife’s control is independent of the husband’s power.

And so the common law is held by the courts in Mississippi. (Grand Gulf Bank v. Barnes, 2 Sm. & Marsh. Rep. 165 to 184.) The statute of Mississippi of 1839, enacted “for the protection and preservation of the rights and property of married women,” effected a change in the law of that State in this respect. (Ibid.) But that Act was not passed until twenty years after the gift in question, and could not affect the rights of the husband to the property previously acquired. His rights had vested and become absolute, long before the passage of the Act.

The exchange of the negro for another in his place, in 1840, did not operate a change or transfer of the right of property from the husband to the wife ; his right attached in the slave acquired by the exchange: nor can it make any difference, that the exchange was effected through the agency of the -wife. The defendant’s title to the slave, Zack, appears to be clear and unquestionable; and there is no evidence to support a claim of right or title to this slave by the plaintiffs. The verdict, in so far, is unsupported by evidence.

Moreover, as to hire, the verdict does not distinguish between the hire of this and the other slaves, but is for a gross sum. Should we hold the recovery right, as to- the other slaves, we have not the means of knowing what amount of hire the plaintiff is entitled to recover for them. The verdict is not so certain, as to enable us to render judgment for them and their hire.

We think proper to observe, that we do not recognize the propriety of the practice, adopted by the parties in this case, of referring us to “the Codes and Digests” generally of Mississippi and Arkansas, without indicating the particular sections, or provisions of law, on which the parties rely. The provisions of the laws of other States, which were in evidence upon the trial, should distinctly appear by a particular reference; and should either be copied in the record, or accompany it, when the case is submitted for decision.

We think proper also to observe, upon the practice of copying into the record, as a statement of facts, the depositions of numerous witnesses deposing to the same facts, with the commissions, and certificates of the officers, and other irrelevant matters, swelling the record to an inconvenient size, by useless repetitions of the same, and a mass of irrelevant matter ; when the material facts might be much more intelligibly presented by a concise statement, as the law requires, and the parties thus saved much unnecessary expense, and the court spared an unprofitable consumption of time, in the examination of the case.

What purports to be a statement of facts, in this case, occupies one hundred and eighty pages of the record, made up, m the main, of the depositions of witnesses, repeating the same matters with unimportant variations, and much of the statements having no material bearing upon the case, but all requiring an examination, in order .certainly to ascertain what were the proofs touching the questions discussed by counsel, and which it might be material to consider, in order to a correct determination of the case.

It is .scarcely necessary to say, that this is not a compliance with either the letter or spirit of the statute; which requires the party giving notice of appeal, “to make out a clear and explicit statement, or hill of the facts” proved upon the trial. (Hart. Dig. Art. 788.) The practice pursued in this case, if allowed, subjects the court to the necessity of virtually performing for the parties a labor, which the law requires them to perform. If the necessary labors of the court were less arduous, a remedy for this abuse might not he necessary.

But, as it is, if parties do not see proper to comply with the plain requirements of the statute, in preparing their statement of facts, they will have no cause to complain, if the court should find it necessary, in order to correct the abuse in practice, to decline to recognize anything as a statement of facts, which is not such as the law contemplates.

We think we may well decline to recognize such general references to the laws of other States, and such a presentation of the evidence, as requiring an examination of other questions, which, though not necessarily involved in the present disposition of the case, if properly presented, it might he desirable at present to take some notice of, with a view to its final disposition upon another trial. It will suffice for the present, that there is error in the judgment in the particulars herein before indicated; for which the judgment must he reversed, and the eause remanded. Beversed and remanded.