Smith v. Strahan

Wheeler, C. J. The rulings of the court upon the trial appear to have been in entire conformity to the opinion of this court, when this case was before us on a former appeal. (Smith v. [112] Strahan, 16 Tex. R., 314; and see Higgins v. Johnson, 20 Tex. R., 389.) The acts and declarations of the husband before the taking of the conveyance, having reference to it, and corresponding with his after acts, evidencing his intention and purpose respecting it, and the subsequent statements of the wife, in so far as they conduced to countervail the prima facie inference deducible from the fact of taking the deed in her name, were admissible and proper to be submitted to the jury for their consideration, in coming to a conclusion upon the question whether the real intention and purpose of taking the deed in the name of the wife was to make a donation or gift of the property to her sole and separate use. If evidence went to the jury which was not entitled to have any influence upon their decision, the charge of the court carefully guarded them against giving weight to such evidence. The material question of fact, upon which the decision of the case depended, was fairly submitted to the decision of the jury by the charge of the court. It was a question of intention, .which it was peculiarly the province of the jury to decide; and we can not say that the court erred in refusing a. new trial, on the ground of insufficiency of evidence to warrant the verdict. The effect ascribed to the instrument of. sale or release, of the 20th of March, 1849, might require consideration, if it were not evident that it can have had no influence upon the decision of the jury. That, however, is evident from the consideration that the instrument in question had no application to any of the appellants but Smith, the alleged maker of it. It could not possibly interpose any obstacle to the right of the other appellants to recover in the action; and so the jury were fully and particularly informed by the charge of the court. Their verdict against the other appellants, therefore, renders it evident, beyond a question, that they could not have been influenced in any degree in their finding by the effect claimed for, or ascribed to the instrument. This, doubtless, is the reason why the counsel for the appellants have not thought proper to advert to the instrument in their argument. We think the charge of the court upon the main question [113] in the ease quite as favorable to the appellants^ to say the least, as the law would warrant; and, on the whole, we are of opinion that there is no error in the judgment. It is, therefore, affirmed. Judgment affirmed. Mr. Justice Bell, having presided as district judge on the trial of this case, did not sit.