Levi Jones, Appellant, vs. The Widow and Heirs of Joseph McCoy, Appellees, 3 Tex. 349

Mr. Justice Wheeler, after stating the facts of the case, delivered the opinion of the court. The consideration of the questions presented by the record before us will relate to, 1. The ruling of the court in respect to the admission of evidence.. 2. The sufficiency of the evidence to support the verdict. 1. The question propounded to the witness, McCoy, was, we think, a proper question, and one which the witness ought to have been required to answer, as going, not to the competency, but to the credibility of the witness.

The competency of a witness is always a question for the court, and his credibility for the jury. [5 Mass. R. 219, 229; 17 id. 160, 169.] And as the credibility of the witness must be judged of by the jury, any evidence which tends to affect it is competent. [9 Watts & Serg. 54.] Though an interest in the question merely does not affect the competency of the witness, yet it may be shown to enable the jury the better to judge of his credibility. There was also manifest error in the ruling of the court in admitting evidence of the present value of the land. That was not in issue.

It was an inquiry wholly foreign to the questions proper for the consideration of the jury, and was well calculated to divert their attention from the real inquiry, and to lead them to attach consequence, and devote attention, to a matter not proper for their consideration. The evidence was most clearly illegal, and ought to have been excluded. 2. The question of the sufficiency of the evidence to support the verdict must depend upon its adequacy to establish the fact of insanity, alleged in the amended petition; that being the only averment affecting the validity of the contract.

The original petition contains no averment which, if true, could afford a legal ground on which to base a rescission of the contract. There can be no pretense that the facts set forth, of the retreat of McCoy with his family before the public enemy, the advance to him of the $1,000, as an inducement to the sale, or the dissatisfaction of his wife, one or all of them could warrant a rescission of the contract. And these are the grounds on which its rescission was originally sought! It would indeed be novel to annul a party’s most solemn and justly obligatory contract for causes such as these.

It is alone to the proof in support of the averment in the amended petition, respecting the mental alienation of McCoy, that we need look, that being the only averment, touching the validity of the contract, at all worthy of notice.

To say nothing of the singular circumstance that this all- . important fact, the alleged incapacity of McCoy to contract, seems to have been forgotten, and not thought of at the timeof the commencement of the suit, and was never set up until more than two years afterwards; which, unexplained, must certainly detract very much from its credibility, and cast upon it a degree of doubt and distrust demanding the most convincing proof; it is enough to determine the present inquiry, that the evidence in support of this averment is altogether unsatisfactory, and quite too vague and indefinite to base the conclusion upon sought to be drawn from it.

It rests upon the testimony of a single witness, who gives her own conclusion and opinion respecting the mental state of McOoy, but states no facts or circumstances in support of that opinion. She does not assert that McCoy was actually laboring under mental alienation until some twenty days or a month before his death, which, from her own testimony, occurred some two months after the making of the contract; thus fixing the period of this mental alienation subsequent to the time of its execution. And this was the only evidence at all material in support of the plaintiffs’ case.

Although it appears from the testimony of this witness that there were other persons present, particularly Perry and Moore, whose names appear also as witnesses to the contract, and whose testimony, under the circumstances, would seem to have been most satisfactory, yet they are not called to testify touching this most material averment, so vital to the plaintiffs’ case, and no attempt is made to account for their absence. Nor was there any attempt or offer on the part of the plaintiffs to support the testimony of this one witness by the proof of any corroborating circumstances.

Without adverting to every aspect in which this subject might be viewed, or pursuing the reflections which its consideration must suggest, we recur to the question, is it possible to regard the verdict of the jury, based upon this vague and unsatisfactory testimony, under the circumstances, as resting on a legal basis? And we are constrained to conclude that it is not.

If upon evidence such as this, and under the circumstances of this case, a contract of the most solemn and binding character, apparently executed with due deliberation and formality, and the strictest regard to justice and fair dealing, could be set aside and annulled, and a party divested of his most valued rights, the law, instead of affording a shield and protection, would become the instrument most effectually to defeat and destroy rights, however fairly acquired or justly possessed.

It is scarcely possible to regard the verdict in this ease otherwise than as the result of partiality or prejudice, induced by considerations which have no proper place in the adjudication of civil rights. ' But it is insisted that the judgment ought to be affirmed, because, it is said, Jones was an alien, and could take nothing by his contract. And this assumption of the alienage of the defendant is based upon his statement, in his answer, that the contract was made by him in the name of Grayson, for the reason that the latter was his friend, and a naturalized citizen of the state.

From this statement, it is inferred and assumed in argument that Jones wasan alien. But it is nowhere averred or admitted in the record that such was the fact. On the contrary, there is evidence from which the conclusion is nearly irresistible, that he must have been here at the date of the declaration of independence; and though, perhaps, not aware, at the time of making the contract, that he was invested by the constitution with the rights of citizenship, yet it can scarcely, admit of a doubt that such must have been the fact. The plaintiffs nowhere aver that the defendant was an alien.

In their amended petition they allude to his statement in his answer respecting the friendship and citizenship of Grayson, and draw from it the conclusion that he has admitted that he could not hold land in Texas; but they do not state the ground of this supposed disability, or ascribe it to, or charge the fact of alien-age. It is only by implication and inference that this conclusion can be arrived at, and it is not a necessary inference from anything contained in the record. On the contrary, a view of the whole record must, we think, lead to the opposite conclusion.

But we do not deem it necessary to enter into a minute examination of the record for the purpose of weighing the probabilities respecting this question. We do not think the ground made out. A civil disability of a character to disfranchise and deprive a party of his most sacred rights, ought, we think, to be established clearly and conclusively, and not left to mere implication, argument and inference. It ought at least to be ' distinctly alleged, so as to afford the party an opportunity of being heard before he is disfranchised.

In this record there is neither averment nor proof that the defendant, Jones, at the date of the contract, was an alien to the government and laws of this country, and nothing to afford more than a mere suspicion that such may have been the case; and even that is subsequently repelled. Until the fact of alienage shall have been established, it will not become necessary to consider what would have been its effect if proved in a case like the present.

It is unnecessary to consider the questions, discussed so much at length at the bar, on behalf of the appellees, which seem to ns to have no proper application to the pleadings or evidence in the case. Ve are of opinion that there was error in the ruling of the court respecting the admissibility of evidence, and in refusing the application for a new trial, and that the judgment, therefore, be reversed, and the cause remanded for further proceedings.