Owen O'Brien v. Marietta Hilburn, 22 Tex. 616

Wheeler, Ch. J. As respects the right of the plaintiff to maintain this action, it is not material whether the deed of gift, of the 15th of December, 1846, vested in the plaintiff the absolute ownership, or only a life estate in the property. Nor is it rendered material by the pleadings and evidence, as respects the measure of the recovery in damages. But it would seem that, under the deed, the plaintiff took an absolute estate. (Hawkins v.

Lee, supra, 544, and cases cited.) We think the evidence, proposed to prove a disclaimer of ownership, by the elder Hilburn, in Arkansas, and the other evidence, of transactions there, respecting the property, offered for the purpose of proving that Hilburn had no title, when he sold to Shelton, was well taken, and rightly sustained by the court. It is well settled, that questions upon the admissibility of evidence, will be considered and responded to by the court, in the very terms in which they are propounded.

If evidence proposed is not admissible for the purposes for which it is proposed, on objection to its admissibility, the court will not inquire whether it might be admissible for any other purpose. It will suffice, to sustain the objection, that it is not admissible for the use the party proposes to make of it. That a defendant in trover, cannot set up property in a third person, without showing some claim, title, or interest in himself, derived from such person, has been expressly decided. (Duncan v. Spear, 11 Wend. Rep. 54; Hurst v. Cook, 19 Id. 463; Davis v. Loftin, 6 Tex.

Rep. 489.) The defendant, in his answer, does not set up any claim of title, derived from any third person in whom he proposed to show title; nor was the evidence offered to prove title in' any third person, as the basis of proof of a derivation of title from such person. His pleadings were framed with an entirely different view, and did not lay the foundation for the introduction of such evidence.

Besides, it does not appear that Hilburn was in possession of the property when he made the admissions, or that they were accompanied by any corresponding act; and we are of opinion that the evidence, under the pleadings, and as it was proposed, was clearly inadmissible. If it had been admitted, it did not tend to the proof of any material issue, and could have had no proper influence upon the decision of the case. All the expenses with which the defendant sought to charge the property, were incurred by him after the bringing of this suit, and in his own manifest wrong.

Indeed, the evidence tends strongly towards the conclusion, that the defendant knew, or by the use of ordinary diligence, might have known, the true condition of the title, when he made his purchase, and that his purchase was wrongful, as in derogation of the plaintiff’s right. There was no error in excluding the evidence proposed, for the purpose of charging the plaintiff with these expenses.

Evidence was admitted to prove the actual value of the use of the property to the defendant, and the charge of the court fairly left to the jury, the question of its value, considered in reference to the ages and condition of the slaves; and this was all the defendant could ask upon that point. It is no objection to the judgment, that the jury did not find expressly upon all the issues submitted to them. It was only material, that their finding should embrace all that was essential to the rendition of the judgment, and this it does.

The ruling of the court, upon the effect of the defendant’s purchase of the property at the sheriff’s sale, is in entire accordance with the decision of this court in Fowler v. Stoneum, 6 Tex. Rep. 60, and the well settled law elsewhere. (Primot v. Thebodeaux, 6 La. Rep. 10; Hagan v. Lucas, 10 Pet. Rep. 400; Hackley v. Swigert, 5 B. Monr. Rep. 87.) We are of opinion that there is no error in the judgment,, and it is affirmed. Judgment affirmed».