Grooms v. Rust

Moore, J. The possession of personal property is prima facie evidence of title, and will, assuredly, support an action for its recovery against a wrong doer. In cases of bailment for hire, the question of title is not usually a matter of importance; the bailee can not resist an enforcement of the contract merely by proof that the title of the property was not at the time of the hiring in the bailor. To enable him to do so, he must not only shew that the bailor was wanting in title, but also that he had no right to the possession of the property bailed, or such facts as establish a, failure of the consideration of the contract sought to be enforced. The law also unquestionably implies an assumpsit in. favor of the owner, or the- party having the right of possession of its quantum meruit from the party who has been in the use of enjoyment of tike property. [234] In this case it is not very clear whether the plaintiff, the appellee in this court, intended by his original and amended petition, to place his right to a recovery upon an express or implied contract, or as is more probable, to present them as alternate grounds for recovery. If the plaintiff had rested his right to a judgment exclusively upon the hypothesis that the defendant had acquired the possession of the negro from him, or by an express contract of hiring with him, it might be a matter of much question whether the facts alone presented in the defendant’s answer, would afford a valid defence to the action. But the plaintiff did not rely solely upon an express contract of hiring, nor did he establish such an one by the proof adduced upon the trial, if or, indeed, was it clearly shown that the negro had been in his possession previous to going into that of the defendant, or that the latter had acquired possession from him. In so far as the plaintiff placed his right of action upon the implied assumpsit to pay the hire of the negro to the owner, or party entitled thereto, the special answers of the defendant presented a valid defence, and the plaintiff’s exceptions to so much thereof as set up title in the defendant and others, was therefore properly overruled. The only other question that need be noticed, is presented by the bill of exceptions, taken by the defendant to the testimony of the witness Carter. That a deed absolute upon its face may be shown by parol to be intended as a trust, must be admitted to be settled law in this forum. But the courts will scan testimony offered for this purpose, with a strict and scrutinizing eye, and if in all respects it is admissible for the purposes of proof within the rules by which the courts are governed upon this subject, it must also be sufficient to establish the trust with clearness and certainty. (Miller v. Thatcher, 9 Tex. R., 482; Mead v. Randolph, 8 Tex. R., 191; McClenney v. Floyd, 10 Tex. R., 159; Cuney v. Dupree, 21 Tex. R., 211.) The declarations of Albert Rust, the grantor in the deed, upon which the defendant relied to show a want of title, or right of possession in the plaintiff to the negro for whose hire the suit was brought, which the court permitted to be testified to by Carter, were most indubitably upon any principle of law, altogether inadmissible. They were clearly objectionable as [235] falling under the general exception to which all hearsay evidence is amenable. They were also inadmissible, because made by the grantor in disparagement of the title evidenced by his deed several years after its execution, and at a time that he had no interest in the subject matter. The admissions of the grantees, to which the witness also testified, appear to some extent, at least, to have been likewise inadmissible.- The testimony shows that the defendant’s wife, who was one of the grantees in the deed from Albert Bust, was at the time of making the admissions upon which the plaintiff relied as proof of his right to a life estate in the negro, a married woman ; and it certainly will not be insisted that her rights could be affected by her bare declarations or admissions, when no one has been in any manner injured thereby, or has acted upon them. The appellee insists that his possession of the negro entitled him to a recovery. The difficulty in sustaining this view of the case has been indicated by what has been already said. But if it were true, and if, as appellee now maintains, the testimony offered by him to prove his title was unnecessary, and that it was only offered to meet the improper issue, that the refusal of the court to sustain his exceptions to the answer forced upon him, it should not affect the result of the case here. The charge of the court, as well as its action upon the pleadings, made the plaintiff s right to a verdict, as an alternative view of the case, depend upon his right to the possession of the negro during the time for whiph he was claiming his hire from the defendant. If it were admitted that this was erroneous, it can not be said here that the jury may not have been controlled in them finding by it. Nor can we know what might have been their verdict if they had been required to rest it upon the single issue which the appellee now insists should alone have been submitted to them.. ■ The judgment is reversed and the cause remanded. Reversed and remanded.