Isaac L. Hill v. John Thomas Townsend, Administrator, 24 Tex. 575

Bell, J. We have attentively considered the many questions presented in this case, but we do not propose to enter into an elaborate discussion of any of them; because our opinion will lead to a reversal of the judgment, and it is not probable, that many of the questions will present themselves upon another trial. We are of opinion, that the court below erred in the ruling presented for our review, by the fifth bill of exceptions, in relation to the admission in evidence of the power of attorney, from Egerton and Gill to Joseph J. Little. This cause was tried in the District Court, in November, 1853.

In April, 1853, the power of attorney in question was filed in the court, attached to the depositions of the witnesses, Hunger and Portis. The plaintiff claimed title to the slaves in controversy, through that power of attorney, and had alleged in his pleadings, that it was lost, and could not be found; and he took testimony to prove its execution and contents. On the trial, the defendant tendered to the plaintiff the instrument which had been filed several months previously, as the instrument which the plaintiff declared, in his pleadings and affidavit, to be lost.

The plaintiff declined to recognise it as the instrument through which he claimed, and proceeded to introduce parol proof of the execution and contents of the power of attorney, which he alleged had been executed by Egerton and Grill, to Little. This, we think, was proper. The plaintiff was not bound to receive the instrument tendered by the defendant.

But when the plaintiff had closed his testimony, the defendant' might offer the instrument in court, and prove that it was the identical instrument under which Little acted, and the only instrument under which he acted, as the agent of Egerton and Grill, to rebut the parol proof already introduced by the plaintiff, of the contents of the power of attorney, from Egerton and Grill to Little. And this, we think, the defendant might do, without admitting the execution of the instrument which he produced, as the act of Egerton and Grill.

We think the court erred in ruling, that by the production of the instrument, the defendant admitted its execution, and in permitting the plaintiff then to read it in evidence, as an instrument, the execution of which was admitted by the defendant. Upon the parol evidence offered by the plaintiff, of the execution and contents of the power of attorney, from Egerton and Grill to Little, it would have remained for the jury to have pronounced.

But when the instrument, brought into court by the defendant, was read to the jury, the parol evidence of execution and contents of a lost instrument, was withdrawn from the jury; at least, such was the legal effect of the action of the court. But in point of fact, the great mass of parol testimony, in relation to the contents of the power of attorney, under which Little acted, was left to have its effect upon the minds of the jury, while the precise question of the execution of the instrument was determined by the ruling of the court. We think the judgment of the court below must be reversed, for this reason.

We are of opinion, that the court below did not err in taking jurisdiction of the case, upon the facts alleged in the plaintiff’s petition. We are also of opinion, that the property in question, being inherited according to the laws of Texas, by the sisters of the deceased, Thomas, vested immediately in them; and becoming subject to the law of their domicil, passed to the husbands, John B. Gill and Gilbert G. Egerton, under such limitations as the law of their domicil prescribes, or recognises, in reference to choses in action, not reduced into possession.

We are of opinion, that the court below did not err in instructing the jury, that an assignment by the husband, of the wife’s chose in action, during the marriage, for a valuable consideration, passes the title to the assignee, and bars- the wife’s right of survivorship. This is a question which has been much discussed, and upon which courts of high authority have differed.

We have examined all the principal cases, and think that the doctrine announced in the instruction given by the court below, to the jury, is, in the language of Chancellor Kent, “ understood to be the rule best sustained by authority.” We have not the time, nor is it necessary, to review the many cases on this interesting subject. They will nearly all be found in the notes to Kent’s Commentaries, vol. 2, pp. 121-124. We are also of opinion, that the defendant in the court below did not show himself to be in a position to claim the protection of the statute of limitations.

Upon another trial, the question of the proper construction of the power, from Egerton and Gill to Little, will remain; and whether or not, Little transcended his power, in the sale to Oliver. The judgment of the court below is reversed and the cause remanded. Reversed and remanded.