Ellis v. Ponton

Lindsay, J. In this contest, in an action of trespass to try title, the jury found for the appellee, and unless the court has committed some vital error in admitting improper evidence, or in the charge to the jury, this court ought not to disturb the verdict and judgment. It is charged by the appellant that the deed of A. J. Ponton to the appellee, was made for the fraudulent purpose of hindering and delaying the creditors of A. J. Ponton in the collection of their debts; and that the grantor, A. J. Ponton, was not a competent witness for his grantee in an action against the grantee to try title. This is certainly a correct proposition of law. But when a release was executed by the grantee to his grantor against his warranty of title, it rendered him competent as a witness, and it was then a question of credibility, not competency. The release was exhibited on the trial before the witness testified. Being made a competent witness by the method pointed out by the law, whatever may have been the private convictions and expectations of the witness in giving his testimony, these considerations could only affect his credibility, which were legitimate subjects of comment in argument before the jury. The case cited from 3 Johns. Oh. Bep., 375, is not in point. In that case it was the fraudulent holder of a title, who fraudulently conveyed by a quit claim deed, and was denounced, in a suit in equity in a com’t of conscience, as an inadmissible witness in favor of his grantee. The chancellor does not say that the witness was absolutely incompetent, but the testimony was inadmissible because the witness was interested in supporting the title of the grantee. And having acquired the title fraudulently, and then selling and [438] conveying it to another, the witness, in that case, would have been liable to an action of deceit at the instance of the injm’ed party, notwithstanding the conveyance without warranty. But even in that case, it is virtually conceded if the release, which was alleged to have been given had been produced, it would have restored the competency of the witness. The case is not analagous to the present. Neither does the case of Evans v. Pigg, upon the question of notice of the release, apply to the facts of this case. Here, the release was presented and filed in open court in the cause, produced on the trial for the express purpose, and preparatory to the giving of his oral testimony by the witness. The case-of Evans v. Pigg, 28 Texas, was a release, indorsed on a bill of sale, filed in the cause, and the deposition of the witness taken in another county to be read on the trial, without anything in the record of the case showing that witness ever heard or knew of any fact in the cause, except those upon which he was called to testify. In that case there was a sound reason for the rule so correctly laid down by the learned judge. But no such reason obtains in this case. In regard to the verdict of the jury, though it be not technical, it is very comprehensive; and, if true, is quite responsive in settling the rights of these parties, both legal and equitable, in the subject matter of their litigation. It was an action of trespass to try title. The real claim of the plaintiff was founded upon the sale of the land under a deed of trust executed by A. J. Ponton on the 1st of August, 1857, to secure a debt of $167"A% to the appellant. The claim of the appellee was based upon a deed from A. J. Ponton, dated the 10th of November, 1857, and acknowledged and recorded on the 17th of November, 1857. This last deed, as well as a bond for title, executed jn June of the same year, was assailed by the appellant as fraudulent and void as to creditors. On the other hand., the deed of trust was assailed by the appellee, by producing before the jury a receipt of the appellant, showing that A. J. Ponton had paid him, prior to the trustee sale, the $167mt [439] secured by the deed of trust, and thus sweeping, if true, the whole foundation of his title from under him. And if there was no indebtedness at the time to him, however fraudulent, as to creditors, might have been the deed from A. J. Ponton to D. B. Ponton, if he was not hindered and delayed by such conveyance, he had no right to become a volunteer advocate of the general creditors, and to seek to annul the title acquired by X). B. Ponton for their benefit. This was, substantially, about the issue made before the jury, who, upon hearing all the evidence, brought in this verdict: “We, the jury, find for the defendant, believing the receipt of J. J. Ballard liquidates all claims against A. J. Ponton up to that date,” which receipt bears date anterior to the sale under the deed of trust, and calls for the precise number of dollars and cents as was set forth in the trust deed. ETow, the jury were the best judges of the truth or false? hood of the facts deposed before them. And if they believed that there was, in fact and in truth, no indebtedness subsisting between J. J. Ballard, the appellant, and A. J. Ponton, at the time of the trust sale, they could not have given a more appropriate and fitting verdict than they did. It struck at, and at once disposed of, the salient point in the controversy. The improper conduct of the jury after their retirement is also urged as a ground of reversal. The affidavits of some of the jurors was taken in support of the motion for a new trial. The courts of the country ought never to indulge the'practice of hearing the affidavits of jurors to assail their own verdicts. Its tendency is corrupting, and never promotive of justice. Because some person' converses with a juror while the jury has a case under consideration, without permission of the court, it does not vitiate the verdict. At most, it only gives the court the right to fine both the juror and the person so intermeddling for contempt. The court thinks there is no such error made manifest by this record as to require the reversal of the case. It is therefore affirmed. Affirmed.