| Tex. | Dec 15, 1849
For the appellant it is insisted—
1st. That as by the deed of gift under which the plaintiffs claim the plaintiff Margaret was entitled to lhe possession and control of the negroes during the minority of her children, her conveyance to the defendant entitled him to’their possession and control during that period; and that the court erred in refusing the. first, instruction asked by the defendant.
2d. That to entitle, the plaintiff's to recover, they must have averred and proved payment or a tender of the money due upon the mortgage; and that the, court erred in refusing the second and fifth instructions asked by the defendant.
3d. That the plaiutiffs were not entitled to recover if the title or right of
4th. That the court erred in refusing a new trial..
1. The plaintiffs, in their petition, did not state specially the character of their iiile, but alleged generally ownership in themselves. Under this general allegation they gave in evidence, without objection, the title under which they claim, which sliowed the general property in the children, and only a special property in the mother. The title, shown by the plaintiffs is doubtless such as will support an action for the possession of the property. The mother, as trustee, and entitled to its possession and control for the children during their minority, might perhaps have maintained the action without joining the guardian ; but in'the character which this action assumed under the pleadings and evidence it. is not, we think, an objection which can defeat the plaintiffs’ right to recover that the minors, in whom was the beneficial interest and ultimate absolute ownership, were by their guardian made parties plaintiff to the suit.
Whether the interest of the mother was such as to enable her to convey to another the. right to the possession and control of the negro during the minority of the children ;t is not necessary now to determine. If her right be conceded, it is admitted that her conveyance, under which the defendant claims, was not intended as an absolute conveyance of any interest which she may have had, but ivas only a mortgage, and of course subject to her right of redemption. That she had the same right to redeem in this case which she would have had if she had been the absolute owner of the property is quite too clear for argument. The. first objection, therefore, which proceeds upon the supposition that the conveyance to the defendant was absolute, is clearly untenable. And the first instruction asked by the defendant, based upon the same assumption, was irrelevant, and was therefore rightly refused.
2. The second ground upon which it is sought to reverse the judgment is untenable for two reasons: 1st. The defendant asserted a claim of absolute ownership in the property mortgaged; and this has been held to dispense with the necessity of a tender of the money due before suit for the property. (Luckett v. Townsend, 3 Tex. R., 119, anti authorities cited.) 2d. The hire of the negro had extinguished the debt. The plaintiffs could not be required to tender money which in equity and justice they did not owe.
If is objected that the plaintiffs did not. allege, in their petition that the debt was extinguished by the hire of the negro. But the petition contained a claim for damages for her detention, and the plaintiff's proved the value of her hire without objection. Under the evidence it was competent for the jury to estimate I lie value of the hire and apply it to the extinguishment of the debt. This they appear to have done; and it is now too late to object to the sufficiency of the'allegation under which this evidence was given or to the admissibility of the evidence.
3. The object of the defendant in asking the fourth instruction appears to have been to set up the defense of an.ontstaudiug superior title in a third party. This ¡t. was not competent for him to do by an instruction to the jury when in his answer lie had not set up this defense. That a party cannot in this manner a tail himself of an affirmative matter of defense which he has not pleaded we have repeatedly decided. (2 Tex. R., 460.) The court had given the third instruction asked by the defendant, in which he charged the jury that to entitle the plaintiffs to recover they must prove that they are the legal owners of 111" negro, and are entitled to the possession.' Upon this point the defendant could not ask more.
-!. Th" remaining ground on which it is sought t'o reverse the judgment, the refusal of the application fora new trial, is also untenable. The application rested upon the affidavit, of a witness who had been introduced and examined by defendant on the trial. No reason is stated why ho was not then examined ill respect to the facts stated in his affidavit. No surprise is alleged and no diligence is shown. It is not even stated that the evidence came to the knowledge of the defendant since the trial. And we have heretofore held that
Mb rule, indeed, is better settled than that a new trial will not be granted on the ground of newly-discovered ei iden’ce, when with due diligence the party might have liad the benefit of the evidence at the trial. (7 Yerg. R., 432 ; 6 Blackf. R., 496; 1 Id., 367; 18 Johns. R., 489.) Where matters might have been offered in evidence on the trial, but were not, they form no ground for granting a new trial. (3 Ire. R., 310.) A want of recollection of a fact which, by due attention, might have been remembered, is not a ground for granting a new trial. (7 Mass., 205" court="Mass." date_filed="1810-10-15" href="https://app.midpage.ai/document/bond-v-cutler-6403632?utm_source=webapp" opinion_id="6403632">7 Mass. R., 205.) Mor is an inadvertent omission by a witness to state all lie knows material to the case. (2 S. & M. R., 597.) And it has been held that the affidavit made by one who had been a witness in the cause, swearing to further important facts not stated by him on the trial because his recollection did not serve him, is only cumulative evidence, and not a sufficient ground for granting a new trial. (4 Har. R., 76.) It is clear that the court did not err in refusing a new trial. And from the view we have taken of the various grounds now urged for a reversal of the judgment, we conclude that there is no error in the ruling of the court in refusing instructions asked by the defendant or in the judgment.
Tlie proposition asserted in the sixth aud seventh instructions asked are not deemed of a character to require notice.
Judgment affirmed.