1875.] CASTLEMAN V. SIERRnY. 61
Opinion of the court.
REEVES, ASSOCIATE JUSTICE.-The evidence establishes
the sale by appellee to appellant of the land in controversy.
It was admitted by appellant in his evidence before the
jury. The general denial put the plaintiff upon proof of
the allegations of his petition, but it is apparent that the
sale and purchase was not seriously contested, and the real
grounds of defense are disclosed in the special answers.
It is alleged in substance that the plaintiff never paid for
the land, that the sale was verbal, and that defendant
never made a written title to plaintiff for the slave. The
title to the negro woman was not put in issue by the pleadings.
It does not appear that the plaintiff was asked to
make a bill of sale to the slave, or that he refused to do so.
The defendant took possession, and his right was not questioned
before the destruction of slavery by the Government.
The title to the slave vested without a bill of sale, as decided
in the case of McKinney v. Fort, 10 Tex., 220, and
referred to in the brief for appellant. It does not appear
that the court submitted the evidence as to a rescission of
the contract to the jury, or that the evidence was objected
to by plaintiff before the jury. This evidence may have
had some influence on the verdict, but as the case will be
disposed of on other grounds, it is not deemed necessary
to examine it.
Under the pleadings, the charge of the court that the
plaintiff must prove that he had a right to sell the negro
woman, and that he had made and delivered to the defendant
a bill of sale for the woman, or had offered to do
so before he could recover in this suit, is believed to be
The charge is further objectionable as being upon the
weight of the evidence, when the court tells the jury that
evidence of the admissions of a party is regarded as dangerous
and liable to abuse, &c. Such expressions as these,
found in every treatise on evidence, are to be regarded as
matters of argument rather than rules of evidence having
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 June 2, 2015.