28 S.W. 217 | Tex. App. | 1894
Appellee issued an execution to enforce the collection of a judgment that he had against Dubois Wentworth, and it was levied on certain cattle in Brewster County. Appellant Swan filed a claimant's oath and bond, and a trial of the right of property was had, which resulted in a verdict and judgment against Swan and his sureties on the claim bond, and this appeal was prosecuted. The record is very voluminous, and has entailed much labor in investigating unnecessary matter. We conclude, however, that the points hereinafter discussed are all that demand attention.
The sale of the cattle to Swan must be held valid under the provision of article 4562 of the Revised Statutes, or not at all. There was no attempt to show the execution of a written bill of sale, but the whole case of appellants was rested on a verbal sale and delivery of the cattle. The question of a sale of cattle running on the range, by virtue of a written transfer, duly registered, of the marks and brands, was an issue not raised by the proof, and its introduction as an issue by the charge of the court was calculated to distract the minds of the jury, and lead them off from the consideration of the true issues in the case. Appellants claimed that the cattle, as identified by certain marks and brands, and as running in certain pastures, were in good faith bought by Swan from Dubois Wentworth, and that they were *423 delivered in the pasture to Swan's agent, who went into possession of them. It is admitted that appellees had a valid and subsisting debt against Dubois Wentworth, and had levied a writ of execution on the cattle, and everything was eliminated from the case except the question of an executed verbal sale by delivery without a bill of sale, and the bona fides of the transaction.
Article 4562 of the Revised Statutes provides, that the sale of any animal of the species therein enumerated, accompanied with actual delivery, is prima facie illegal, unless also accompanied by a written bill of sale giving the number, marks, and brands of each animal sold and delivered. This statute is directory, and the presumption of illegality that attends the sale without the written evidence accompanying is one that can be rebutted and removed by proof of good faith. Wells v. Littlefield,
We are of the opinion that this delivery might be accomplished by designating them as all the cattle in certain brands in certain pastures, provided the latter were not of such proportions, when considered with the number of cattle and other circumstances, as to amount in effect to having the cattle at large upon the range. If the cattle in controversy were loose on the range, there was no delivery under the facts of this case, and a bill of sale being an absolute prerequisite to the acquisition of title, it follows that the sale would be absolutely null and void. The question of whether the stock were loose on the range, as that word is used in the statute, involving as it did the question of delivery, was the turning point in this case. Without delivery of the property by Dubois Wentworth to appellants, there could have been no valid sale under article 4562; and if the cattle were on the range, there being no compliance with the statute as expressed in article 4564, there could have been no valid sale under its provisions. It can not be said, as a matter of law, that 3000 cattle turned loose in a 60,000 acres pasture, are running in the range, as contemplated in article 4564. There is no law, statutory or otherwise, defining what running on the range means, and indeed it would be impracticable to define the term, but it is purely a question of fact to be determined by the jury. *424 It was therefore an invasion of the realm of fact peculiarly within the province of the jury for the judge to instruct the jury "that as a matter of law, cattle running in pastures, from ten to sixty thousand acres each, with various other cattle, and belonging to various other owners, which owners were unable to tell how many head they had in any particular pasture, and such pastures covering from twenty-five to thirty-five miles square, would be a sale of cattle running on the range." The circumstances enumerated might appropriately go before a jury for determination, but the court had no authority to take their consideration from the jury, and say, as a matter of law, that proof of them constituted running on the range as contemplated in the statute. The vital issue of fact in the case was withdrawn from the jury and was decided by the court.
The case of Gunter v. Cobb,
The uncontradicted proof shows, that if there was any delivery of the cattle in the S A L, Y L, and S U E brands, there was a delivery of all of them, and it was calculated to mislead the jury for the court in his charge to reiterate the duty of having cattle cut out from a larger number identified. It tended to convey the impression to the jury that the court was of the opinion that all the cattle sold were to be segregated from a larger number. If the testimony of appellants, which was not contradicted, is true, the cattle in the brands above mentioned, and the 318 head in the brand called "Diamond Tail," with a "slash," did not require identification. Too much care can not be exercised in avoiding such mention of facts or combinations of *425 facts, in instructions to juries, as would in any manner tend to influence the minds of the jury.
We are of the opinion, that the issues as made by the proof not having been properly presented by the court, the special charges numbers 1, 2, and 3 should have been given as embodying the law of the case. The other assignments of error need not be discussed, and it would not be proper to comment further than we have done upon the facts.
The judgment is reversed and the cause remanded.
Reversed and remanded.