1875.] CASTLEMAN V. SHERRY. 59
Statement of the case.
the contract could not be a material, inquiry as affecting
the right to dispose of it by the mortgage. (McGee v.
Fitzer, 37 Tex., 27; Green v. Armstrong, 1 Denio, 550;
Bricker v. HIghes, 4 Ind. 146; Austin v. Sawyer, 9
Cow. 39; Marshall v. Ferguson, 23 Cal., 66; Backenstoss
v. Stahler's Administrator, 33 Penn. St., 251.)
Finding no error in the judgment of which appellant
can complain, it is affirmed.
D. F. CASTLEMAN V. BARNEY SHERRY.
1. INSTRUCTIONS-SALE OF NEGRO.-A negro woman was sold and delivered
in November, 1864, without bill of sale, was held by vendee
until emancipation. In a suit by the vendor of the negro for specific
performance of a parol contract for sale of a tract of land which by
contract was to be part consideration for the negro, possession of
which had been given: Held, error to instruct the jury that a bill of
sale was necessary to pass title to the negro, or that plaintiff should
show title and right to convey the negro.
2. CHARGE UPON WEIGHT OF EVIDENCE.-TO charge the jury that
evidence of the admissions of a party is dangerousus and liable to
abuse: HIeld, error as charge upon the weight of evidence.
3. PAROL SALE OF LANDS--CONSIDERATION.-A negro sold and delivered
in consideration of land by parol, possession of the land
having been delivered, is sufficient as a payment to take the contract
out of the statute of frauds.
4. See case of parol sale of land enforced.
APPEAL from Red River. Tried below before the I-Ion.
A. II. Latimer.
David F. Castleman, for use of Francis G. Goodman, December
5th, 1865, suedl Barney Sherry for specific performance
of a parol contract for the sale of a tract of land in
Red River county.
The pleadings and evidence showed that in November,
1864, Goodman delivered to Sherry a negro woman, for
which Sherry was to convey to Goodman the tract of land,
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed May 26, 2016.