Johns v. Northcutt

Moore, Associate-Justice.—This case, has been submitted to the court upon points of law and fact, upon which it is agreed by" the parties it should bé decided, with á statement of the. matters presented by the record connected therewith deeme'd essential to their proper understanding and determination. While it is, therefore, incumbent upon Us'to consider and determine all the points agreed upon and presented for bur consideration, we must do so upon the facts and matters exhibited in the statement agreed upon and submitted to us by the parties for their proper elucidation and decision. 1. From the difference in the apparent nature" and object of the suit as presented in the original and amended petitions, we may reasonably infer that appellants would have been entitled to a continuance, on the ground of surprise, by the filing of the amended petition by appellees. But it is quite evident that we are not warranted in saying, from the matters and things presented in the agreement, that the court erred in declining to postpone the case to a future" day in the term, on appellants’ simple application that this should be done merely because of the filing of the amended" petition. It is not shown that appellants weré in fact surprised by the amendment, or were not as fully prepared for a trial of the case when called, as they could hope to be at a subsequent day of the term or by another term of the court. (Cummings v. Bice, 9 Tex., 527.) 2. The objection to. the evidence of the witness Harris was well taken, and should have been sustained. Counsel for appellees do not, we believe, claim that the testimony was in all respects strictly admissible, but he insisted that the objection made to it "by appellants did not present a sufficient ground" for its exclusion, and therefore they have Uo cause to complain of the ruling of the "court. Undeniably; the cOtirt was only required to consider such "objections to testimony as were taken to it when offered by the " party denying its ad: missibilityl Objections not taken when the testimony is offered are waived, and cannot be considered or urged in this [455] court as grounds for the reversal of the judgment, especially if they are such as might, if taken in the court below, have been obviated by additional evidence. But if an objection is made which is prima fade valid, and in general applicable to the evidence as offered, it is sufficient, and should be sustained, although there are special and particular phases of such testimony where, or exceptionable cases in which, it may be admissible. In such cases, it is incumbent upon the party offering it to meet such general objections, by showing that in the case on trial, or by reason of the special and particular phase of the testimony as presented, it should be admitted. The testimony here in question is undeniably merely hearsay. Such evidence is, of course, in general inadmissible. Appellees insist, however, that hearsay is admissible to prove pedigree ; but still it must be admitted this character of testimony is not generally admissible, even for this purpose. But still its admissibility for the proof of pedigree is restricted and limited to the hearsay or declarations of a particular character of persons, or such as are made and testified to under special and particular circumstances. The testimony objected to, plainly, upon its face, does not come within the exceptions to the general rule, that hearsay evidence is not admissible ; and this being the case, it was only incumbent upon appellant to make such objection as clearly points out a prima, fade valid ground for its exclusion. (Stein v. Bowman, 18 Pet, 220; White v. Strother, 11 Ala., 720; Mooers v. Bunker, 9 Post., (N. H.,) 420; Covert v. Hertzog, 4 Barr, 145; Greenwood v. Spiller, 2 Scam., 502.) It is insisted, by appellees, that although the objection to this evidence may have been improperly overruled, yet as it could not possibly, as they claim, have worked any injury to appellants, it is not an error for which the judgment should be reversed. But evidently the predicate of this proposition is without foundation. The deduction from it is, therefore, fallacious and untenable. Defendants, who are sued for partition of land, are unquestionably entitled to know that [456] the parties by whom they are brought into court are in fact their co-tenants. As has been said by this court, it should be made to appear in suits of this character that the .parties before the court own the entire land sought to be divided. (Buffalo Bayou Ship Channel Co. v. Bruly, 45 Tex., 6.) - A valid and binding partition can only be effected by a suit in the District Court to which all the co-tenants are parties. And hence the defendant is entitled to hold the plaintiffs to strict proof of their right to such shares as they ask shall be allotted to them, although their own share may not be thereby increased or diminished. 3." The court did hot err in holding that the judgment and decree of the District Court of Sabine county, “ adjudging and decreeing L. J. and J. C. Bobinson to be the heirs, and only heirs, of Jesse J. Bobinson, deceased, and ordering and adjudging the entire estate of said decedent to be delivered to them,” to be of no binding force and effect against appellees. The record in this case, which was introduced in evidence by appellants, shows beyond all question that appellees were not before the court when this decree was made, and had no opportunity to assert their claim to an interest in the property of said estate. The decree was altogether an ex-parte proceeding. There was no case before the court to be adjudicated and determined. There is nothing in the statute under which this proceeding was had which gives the least color for its support. The statute regulating the partition of the property of estates among heirs and distributees evidently contemplates citation to the parties interested in the distribution who are not parties to the application for partition, and that the court, when all the parties are before it, shall inquire into and settle their respective shares or interest in the property to be distributed. (Paschal’s Dig., arts. 5744-5746.) The estate may be delivered, it is true, to those who are entitled to receive it, if they desire it, “ provided all Be represented.” (Id., 5745.) Certainly no-other inference can [457] be drawn from the plain language of this section of the statute, which is evidently the one under which the court acted in mating this decree, than that the delivery or distribution of the property of the estate to the parties applying for "or brought before the court is not binding on those not represented. (Id., arts. 5467, 5469, 5475, 5477, 5478, 5605, 5609; see, also, Cryer v. Andrews, 11 Tex., 170.; 8 La., (O. S.,) 228; Id., 157.) 4. Appellants not being parties to the proceedings in the District Court of Sabine county, the title cast upon them by the death of the decedent was not divested out of them, or in any way affected by the decree. The parties in whose favor said decree was made, acquired thereby neither a legal nor equitable right to their shares or portions of this land; and as appellants are chargeable with knowledge of the legal effect of the judgment or decree by and under which they claim to have acquired their title, whatever may-have been their confidence in the validity and sufficiency of the title which they supposed they were acquiring, they certainly cannot invoke, for their protection against appellees the doctrine applicable to innocent purchasers, unless they are able to show that appellees had in some way contributed to the fraud and deception practiced upon them by their vendors. 5. The facts exhibited in the agreed statement upon which the case has been submitted, are not sufficiently full to enable us to say whether the judgment in regard to the costs is strictly correct or not. It may not be amiss, however, to remark that appellants are properly chargeable with all the costs incurred in contesting appellees’ title to that part of the land adjudged them, but that so much of it as has or may be incurred in making partition should be divided and. apportioned between the parties according to their respective interest in the land. The judgment is reversed and the cause remanded. Beversed and remanded.