
    Watts v. Johnson and others.
    Where a petition alleges ownership generally in the plaintiffs, a title showing a special property in one of the plaintiffs and a general property in the others will support an action for the property, if no objection be made to its introduction.
    ■ Where a mortgagee asserts a claim of absolute ownership in the property mortgaged, it is not necessary for the mortgagor to tender the amount acknowledged to be due on the mortgage before commencing suit for the property.
    Where the mortgagor sued the mortgagee for the mortgaged property, claiming damages for the detention of the property, and themortgagor was permitted without objection to prove the value of the hire of the mortgaged property: Held, That it was competent for the jury to estimate the value of the hire and apply it to the extinguishment of the debt.'
    A defendant can not set up the defense of an outstanding superior title in a third party by an instruction to the jury when lie has not set up such defense in his answer.
    To entitle a party to a new trial on the ground of newly-discovered evidence, he must satisfy the court, first, that, the evidence has come tohis knowledge since the trial; second, that it was not owing to the want of due diligence that it was not sooner obtained; and, third, that it would probably change the result upon a new trial. (Note 03.)
    A want of recollection of a fact which, by due attention, might have been remembered, is not a ground for granting a now trial; nor is an inadvertent omission by a witness to state all he knows material to the case. (Note 04.)
    Appeal from Harris. The appellees, children of Achilles E. C. Johnson and Margaret his wife, minors, hy their guardian, jointly with the said Margaret, brought suit against the appellant to recover a negro woman of which they claimed the ownership. At tiie Spring Term, 1848, the defendant hot Having answered, judgment by default nisi was taken against him. Afterwards, at the same term, the defendant filed an affidavit, in which lie alleged that lie had a meritorious cause of action; that he was tiie rightful owner of the slave described in tiie plaintiff’s petition by purchase, for a valuable consideration, from the plaintiff Margaret and one McGuire and one Lewis, who were in the lawful possession and ownership of tiie said slave. Upon tiiis affidavit the judgmeut by default was set aside, and the defendant filed as his answer a general denial.
    At the Pail Term, 1848, the defendant filed an answer, alleging that on the 26th day of April, 1840, J. Lewis and Samuel McGuire and his wife Margaret, one of the plaintiffs, in consideration of tiie sum of $250 paid them by tile defendant, executed to him a bill of sale, and at tiie same time delivered to him. tiie possession of the negro; he, the defendant, executing to them in return a defeasance to the effect that if they should cause to be repaid to him the $250 on or before the 25th clay of May, ÍS47, lie would reconvey to them the negro ; otherwise the bill of sale to become absolute. The defendant further answered that on the 14th day of May, 1847, before the said sum of money had been paid or tendered, one J. D. Groesbeck and A. M. Monroe, acting by and with the advice, consent, and special authority of the said Margaret, executed to him another bill of sale of said negro for the further consideration of $200 paid to said Groesbeck for the use of said Margaret, and that said sum of money had never been tendered to him.
    The cause was tried at the Spring Term, 1849. The plaintiffs give in evidence a deed of gift, hearing date oil the 18th day of October, 1841, made by Alison A. Lewis, conveying'' to the minor plaintiffs tiie slave in controversy, with others, and giving to their mother, the said Margaret, “the control aiicl stewardship of said negroes separately from her husband during tiie minority of said children.” It was in proof that the plaintiff Margaret, mother of tiie infant plaintiffs, and former wife of A. E. C. Johnson, is tiie sister of Alison A. Lewis, by whom tiie deed of gift under which tiie plaintiffs claim title was executed ; that the negro in controversy, with others mentioned ill tiie deed of gift, wore in possession of tiie Johnson family, the plaintiffs, in 1841; that after the death of A. E. G. Johnson in 1844, his widow, Margaret, married McGuire; that on tho 25th clay of April, 181C, she, together with [318] her then husband, McGuire, and one Burwell J. Lewis, executed to the defendant an absolute bill of sale of tlie negro in controversy-as her separate property, ■purporting to be in consideration of 8250; that this bill of sale was given to secure the payment of $150 or $200 loaned by the defendant to tlie plaintiff Margaret; that the negro woman was delivered to the defendant about the same time; that she is worth $550 or $600, and her hire about $10 per month.
    There was some conflicting- testimony respecting the former ownership of the negro woman in controversy; one witness testifying that previous to the deed of gift from Alison A. Lewis to tlie plaintiffs she belonged to said Lewis, and that bis title was never doubted or litigated, and another testifying that she did not belong to either of the parties to the suit, hut to the estate of one Webb, who died in the year 1832 or 1S33, and from whose administrator the plaintiffs had obtained the possession of the-property, hut how he did not know. It was proved that tlie plaintiffs had been in possession of the negro several years previous to the making of the bill of sale to the defendant. The bill of sale under which tlie defendant claimed was given in evidence by him, and he introduced a witness, who testified that lie Wrote it at the instance of the defendant; that it ivas given in consideration of a loan of money, and was intended as a mortgage; that he was under the impression that he at the same time wrote a defeasance to be signed by the defendant.
    Tlie counsel for tlie defendant asked the court to instruct the jury—
    1. “That if they believe from tlie evidence that anyone of tlie plaintiffs have parted with their interest in the negro in controversy, they must find for tlie defendant.
    2. “That if the negro in controversy was mortgaged to the defendant by any one of tlie plaintiffs, they must find for the defendant, unless the mortgage money was tendered to the defendant before suit.
    3. “That the plaintiffs must prove clearly that they arc the legal owners of said negro and entitled to the possession thereof before they can recover in this action.
    4. “That if tlie jury believe that the title or-right of possession of said slave is in any other person than the plaintiffs or defendant, they must find for the defendant.
    5. “That unless the jury believe that the plaintiffs tendered the money paid to Margaret and L. S. McGuire, mentioned "ill the bill of sale executed by Lewis and McGuire and wife, to the defendant before suit, they must find for the defendant..
    G. “That if there be no evidence to show when T. M, Likens was appointed guardian, then the jury may as well infer that said appointment was made after tlie, execution of the bill of sale to tlie defendant as before.
    7. “That unless the jury believe from the evidence that the slave in question was tlie property and in the possession of-A. A. Lewis on the 18th day of October, 1841, tlie plaintiffs cannot claim title under the conveyance from said Lewis to plaintiffs.”
    The court gave the third charge as asked, and refused tlie 1st, 2d, 4th, 5th, 6th, and 7tli.
    The jury found a verdict for the plaintiffs, estimating the value of the negro at $000.
    The defendant thereupon moved for a new trial on two grounds :
    1st. Newly-discovered evidence.
    2d. Misdirection of tlie court in charging the jury “that they could estimate the litre of tlie negro and apply it to the liquidation of the mortgage debt.”
    In support of the first ground, the defendant offered the affidavit of a witness, tlie same who had been introduced by him upon the trial, stating that, “according to liis best recollection, at the time W. G. Watts furnished to L. S. McGuire the money stated as tlie consideration of the conveyance written by him, it was expressly understood and agreed between the parties that so long- as the negro girl remained unredeemed, said Watts was to pay no hire for her services, and the money was to carry no interest.”
    The motion for a new trial was overruled. 'There was judgment for the plaintiffs for the negro or her value as found by the jury, and the defendant appealed.
    
      Webb, for appellant.
    I. Whatever right the Johnsons may have had to recover, Mrs. McGuire had none, and the first instruction asked by the defendant ought to have been given.
    Regarding the conveyance as a mortgage, Mrs. McGuire had certainly a right to mortgage her term. She could only regain the possession by redemption. It was neither alleged nor proved that the money was paid or tendered.
    The children were not entitled to the possession until their arrival at majority, and therefore could not sue for and recover it.
    II. The fourth instruction ought unquestionably to have been given. If the right to the negro or the right of possession was in any other person than the plaintiffs, they certainly had no right to recover, even though the defendant had no right.
    III. -As the plaintiffs claimed solely under the deed from Lewis, the seventh instruction asked was obviously proper, and ought to have been given.
    IV. The verdict of the jury was evidently predicated upon the presumption that the hire of the negro was equivalent to the money advanced on the mortgage and the interest; and if so, the newly-discovered evidence was of great importance. The parties had a right to contract that the hire should stand off against the interest. (Smith v. Doak, 3 Tex. R., 215.)
    
      Gray, for appellees.
    The first question asked was irrelevant. Besides, it is the duty of the court to make such a decree as will finally settle the rights of all the parties litigant, without regard to their position on the record. (Story Eq. Pl., sec. 72, et seq.)
    
    The second and fifth instructions were properly refused, because the defendant had precluded the necessity of proof of a tender by the claim of absolute ownership. (2 Caine’s Err., 200; Luckett v. Townsend, 3 Tex. R., 119.)
    The fourth instruction asked was irrelevant. There was no evidence of property iu another. Besides, the defendant was estopped from denying the title of the plaintiffs.
    I do not see the drift of the sixth instruction asked. If tile right of the guardian was intended to be questioned, it ought to have been doue'by special plea. (1 Ch. PL, 525; 2 Dallas R., 100; 3 Day R., 303.)
    The seventh instruction asked clearly embraced too much. It was certainly sufficient if the slave was the property of Lewis. It was not necessary that she should have been in his possession also in order to enable, him to convey.
    As to the refusal to grant a new trial, there was manifest want of diligence in respect to the newly-discovered evidence. (Luekett v. Townsend, 3 Tex. R., 119; Madden v. Sbappard, 3 Id., 49.)
   Wheeler, J.

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 possession of the negro was in any person other than themselves; ancl that the court erred'in refusing the fourth instruction asked hy the defendant.

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 to entitle a party to a new trial on the ground of newly-discovered evidence, ho must satisfy the court, first, Unit the evidence lias come to his knowledge since the trial; secondly, that it was not owing to the want of due diligence that it was not obtained sooner; and, thirdly, that it would probably change the result upon a new trial. (Madden v. Shappard, 3 Tex. R., 49.)

Note 03.—Sweeney v. Jarvis, 6 T., 30; Long v. Steiger, 8 T., 460; Latham v. Selkirk, 11 T., 314; Pinkard v. Pinkard, 14 T., 356; Dean v. Border, 15 T., 298; Stewart v. Hamilton, 19 T., 96; Augustine v. The State, 20 T., 450; Angell v. Strut et al., 21 T., 485; Frizzell v. Johnson, 30 T., 31; Koontz v. The State, 41 T., 570.

Note 64.—King v. Gray, 17 T., 62.

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. 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.  