Smith v. Redden

Quinan, J. The charges'given by the judge are voluminous, and it is not necessary to recite them all. Among others, he gave the following, which are excepted to: No. 2. If the jury believe from the evidence that the defendant was a purchaser in good faith, and paid his money for the land after being informed by the person or persons to whom he was referred, that William M. Love was the one to buy from, and who could tell him about the title, then the jury will find for the defendant. No. 4. A receipt for a part payment on land in Confederate money is not notice to other parties knowing nothing of its contents, unless the same has been duly recorded; and if the jury should believe from the evidence that there was no other payment made, then such payment could effect no one having no notice of it, and the jury will find for the defendant, if he had no notice of it proved upon him. There are nine assignments of error, of which, however, it will only be necessary to notice the second, fourth, fifth and sixth. The second assignment of error is that the court erred in its second charge to the jury. The fourth, that the court erred in its fourth charge to the jury. The fifth and sixth relate to the admission of the testimony, over the objections of the plaintiffs, that David B. Smith referred Eedden to Love for information in respect to the title, and to the statements of William M. Love. The second assignment of error is well taken. It was manifestly erroneous to instruct the jury, as in effect they are instructed, that David B. Smith, by referring Eedden to [364] Love for information, and by Love’s statement to Redden, “ that he was the one to buy from,” warranted the jury in finding a verdict for the defendants if they believed Redden bought in good faith and paid his money for the land. It is quite too clear for comment that what David Smith did, or what Love said, not in the presence or hearing of Harriet or her children, could not in the least degree affect their title to the land. The fourth charge is equally erroneous — that the jury should find for the defendant if he had no notice proved upon him of the receipt for a part payment on the land in Confederate money,' and that no other payment had been made. It is not proper to charge upon a hypothesis which has no foundation in the evidence. Earle v. Thomas, 14 Tex., 583. Indeed, it is not easy to discover upon what ground these charges were given. Redden could not possibly be a purchaser of the land without notice. Hndeniably it had been in the undisputed possession of the plaintiffs for years. They had rented it to him and put him in possession. He was chargeable with notice of every fact he might have discovered by applying to the parties in possession. And the testimony, uncontradicted, of the witness Petty is, that before Redden rented the place he was informed that “John E. Smith in his life-time had purchased the land from Love, had paid part of the purchase money, and that the land had been occupied by Smith and tenants under him since his purchase, to the time of Redden’s renting. Wade on Notice, p. 116, and cases cited, note 1. The admission of the testimony of what David Smith said or did, or as to the statements of Love in respect to the title, not made in the presence of the plaintiffs, Harriet or her children, was error. These were clearly “res inter alios aetaP David Smith could say or do nothing to impair the title of Mrs. Smith or her children. Nor could the information in disparagement of it by Love, communicated to Redden, have the slightest weight. It was of itself worthless, and Redden had already been better informed, and had better means of knowledge. [365] [Opinion delivered May 31, 1880.] For these errors of the judge in his charge, and the admission of incompetent testimony, the judgment must be reversed. But there is also another fundamental error which, though not assigned, will require -a reversal of the judgment. The minors plaintiff are not represented by their guardian, either regular or special. When this suit was instituted, minors could only sue, or defend, by their guardian. If there were no regular guardian the law required the appointment of a special guardian for them. Pas. Dig., arts. 6969, 6973. And so it has been repeatedly decided. Pucket v. Johnson, 45 Tex., 550; Ins. Co. v. Ray, 50 Tex., 511; Bond v. Dillard, 50 Tex., 302. At the present term of the supreme court, in Brooke v. Clark, it is again so held, in a case where judgment was rendered in favor of a minor suing by a next friend. In this case the court says: “ This determination has not been reached without due regard to the fact that in this particular case it may materially affect the rights of the plaintiff. That the law should be thus held, however, would perhaps not be severely questioned had the minor plaintiff failed in the action.” The judgment is reversed and the cause remanded. < Beversed and remanded.