Penelope Smith v. Reuben Anderson, 39 Tex. 496

Walker, J. However much of the original importance attaching to this suit may have been lost by lapse of time and the events of the war, we find it necessary to reverse and remand the case for at least two errors apparent upon the record. It was error for the court to rule out the evidence of Mrs. Delespine and Reuben Smith. They had no disqualifying interest in the event of the suit. It was also error to sustain the very vague and uncertain exceptions to the amended petition.

Having brought the suit in her own name, it was not error for the plaintiff to join herself as party plaintiff in her capacity as administratrix, especially as the defendant had virtually prayed that she be made a party as administratrix, or that Jas. B. Smith’s administrator be made a party. Any fraud in the sale of the negroes would vitiate the • sale; but fraud must be proved clearly—it will not be presumed. And unless parties competent to consent did consent to the sale of the negroes, the sale was void.

The jury should weigh the circumstances of the sale and all the facts connected with it, in order to determine whether it was a fraud upon the rights of Mrs. Smith or the estate of her intestate. There are many interesting questions presented on this record, but subsequent decisions have settled them all, and we do not think it necessary to make further comment on them. The judgment of the District Court is reversed and the cause remanded. Reversed and remanded.