63 Tex. 105 | Tex. | 1885
The testimony of the witness Williams, excluded by the court, we think was admissible as narrating circumstances tending to show that the order of sale under which the land in controversy was sold had been sent to the sheriff of Denton county. It is not necessary that a witness should have a positive or full recollection of tiie facts to which he testifies, or that he
He may detail circumstances which satisfy his mind of the existence of a fact, and they should be allowed to go to the jury, so that they may draw from them such conclusion as they may deem just and reasonable. If the deduction drawn by the witness from these circumstances is unwarrantable, then the evidence may be excluded; but if they may or may not, under the facts, warrant the conclusion derived from them by the witness, we think that they should be allowed to go to the jury. When resort is had to circumstantial proof, “any fact may be submitted to the jury, provided it can be established by competent means, which affords any fair presumption or inference as to the question in dispute.” Wells v. Fairbank, 5 Tex., 585.
The particular fact connected with an old transaction as to which a witness’s testimony is sought may have faded from his memory, but other and surrounding or collateral facts, which are remembered, may be so intimately associated with the fact inquired about as to satisfy the witness that it did exist. In such cases it is entirely proper that all these facts should be laid before the jury, together with the deduction drawn from them by the witness, and let them determine as to the sufficiency of the circumstances to establish the main fact. It is more a matter of the sufficiency than of the competency of the evidence.
In this case the non-existence of the order of sale at the time of trial was sufficiently shown by proving that diligent search had been made for it in the place where it should be, but that it could not be found. It was in order, then, to prove that it had existed at the time it was used as authority for the sale under which the plaintiff below claimed.
The witness Williams stated that he had no doubt but that he had forwarded this writ to his associate attorney in Denton county. This he did not state as a positive recollection, but he gave some facts which caused him to come to this conclusion. For instance, he stated his ordinary course of business as a lawyer in such matters; his correspondence with his associate attorney in reference to a levy of executions upon the land, and its sale in satisfaction of the judgments upon which the executions were issued, and other matters of a like character. Whilst all these circumstances taken together satisfied the witness that he had forwarded the writ, they might not have satisfied the jury. Still the court could hardly say that the witness, acquainted as he was with his own habits of
For the same reasons the testimony of the sheriff, Eagan, as to his having possession of the order of sale at the time he sold the land should have been admitted. If it was the invariable rule of the officer to have such authority in his possession before attempting to sell property, that he had the writ in question at the time of making the present was not a wholly unwarrantable conclusion on his part. Without intimating any opinion as to the sufficiency of the proof to establish the facts sought to be shown by it, we think that the jury should have had an opportunity of passing upon it, and the court erred in excluding it from their consideration.
Had the testimony of Williams and Eagan been admitted, then the sheriff’s deed should also have been admitted, as also the evidence of Mrs. Caldwell as to the existence of the marriage of herself and W. S. Caldwell at the date when the land was deeded to her. If the jury had come to the conclusion that the order of sale had been established, and the sheriff’s authority to sell the land thereby shown, then his deed to the purchaser at the sale, if not otherwise objectionable, would be ready for introduction in evidence. This deed admitted, the next link in the chain of appellant’s testimony was to show title in W. S. Caldwell at the date of the levy of the execution. As property bought during marriage is presumed to be community property, it became important to show that, at the date of the deed to Mrs. Caldwell, she was married to the defendant in the original execution, W. S. Caldwell, and upon another trial this fact should also be received in evidence.
For the errors already pointed out the judgment will be reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered January 23, 1885.]