Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-05-10
MAY 10, 1870. ID aae
EoFFIcIAL- { "a "a
SUPREME COURT DECISIONS.

I
! Nashville, Deeesnber Term, 1862
Thomas n. CofdtycsE, ATTORNEY
General and Reporter.
| Green Brayelton in error vs. p Tnrney and VIM
3. Taylor, Executors.
This is an action of trespass com.
menced in the Circuit Court of Franklin
: county by Turney and Taylor, Executors
of the viii of Hopkins L. Turncy, de-
ceased
/ : The land upon which the trespass is
alleged to have been committed was con-
veyed by this viii to his widow and a
part of bis children.
| One clause of the will is in these words
ssThe portion of my wife is securely vest
ed il my Executors, and who are directed
TO convey such portion to the sole and
separate use of my wife during her natu-
raj life, and at her death to be disposed
of as hereinafter directed"
The next clause is in these words
1.-THE portions of my daughters are
vested in my Executors, who are
required to convey the same to the sole
and separate use of each daughter during
life remainder to the heirs of her body
forever e0 -o a.aal-' /
L 4tCll AOuItl IL tli6St WOflS
II charge my real estate with the sup
| port, maintenance and education Of my
youngest children, and for That purpose my
executors may rent all my lands which
my wife does not desire to cultivate, and
they may by and with her consent sell all
or any portion of my real estate on such
terms as in their judgment will best pro-
mote the interest of those interested,
keeping the proceeds of such sale at in
terest until the youngest child arrives at
mature age, at which time said fund
will be equally distributed among my de-
Visees hereinafter mentioned, and in the
event of the sale of my real estate my
executors will provide for a decent and
comfortable support during bsr life or
widowhood."
At the trial, after the jury had been
empanelled the plaintiffs moved the court |
for leave to amend the pleadings, by |
making the widow Teresa Turney and |
VIM. Z. Taylor and wife Malinda, Gideon |
Ellis and wife Mary Turney, and p |
Turney, next friend of Joseph Turney, |
joint plaintiffs with P. Turney and VIM. |
Z. Taylor, executors.
This was allowed and the defendants |
excepted.
1t was agreed that Hopkins L. Turney |
had the legal title to the lands described in
the declaration, and that the plaintiffs are
the devisees under the viii, and that
Hopkins L. Turney, Jr., had conveyed his
interest to Peter Turney.
The jury returned verdict for the |
plaintiffs for eleven hundred dollars, and |
by consent of the plaintiffs, five hundred |
and fifty dollars of this amount was re- |
mitted and judgment rendered for four
hundred and fifty dollars and costs. From
this judgment the defendant appealed to
this Court.
1t appears that during the time the al
legged trespasses were committed the Wild |
ow, Teresa Turney, was absent in theSouth,
and it does not appear that any of the /
devisees were in actual possession. The /
witness, ]. w. Custer, swears that he was
employed by Turney end Taylor, execu-
tors of II. L. Turney, to go into posses
sion of the lands in controversy in this
case, late in the fall of 1862; that he
went into possession, and remained in |
possession until about the last of Febru-
airy, 1864.
1t was during this period that portion
of the trespasses are alleged to have been
committed. 1t is insisted by the defend
ant that the Court erred in permitting the
plaintiffs to amend by adding more par
ties after the jury were sworn.
Section 1857 of the Code provides |
that the Court may allow material amend |
mehts at any stage of the proceedings
upon such terms and subject to such rules
as it may prescribe. $40. q
We do not think that there is any thing |
in the objection taken which entities the
defendant 70 q reversal of the judgment.
1t does not appear that he was less able |
to make defence TO the action after these
new parties were added than he was be-
fore, or that he was in any lwise preju-
diced by the amendment. Indeed, The |
widow and daughters of the testator were
unnecessary parties in any attitude which
the defence might have assumed. Even |
though the defendant had brought in |
issue the title (Which he did not do) by |
setting up title in himself or some other /
person, the widow and daughters were |
unnecessary parties, as the legal title to I
their shares was vested in the executors.
" VIII AOb boy l11dt ClCl uluGJ sOl.s W d 4
not proper party. We think the amend |
ment was improperly allowed as to the |
widow and daughters but although this
is so, it does not appear thatthe defendant |
has been in any way prejudiced by.their |
being made parties. This being so we |
think it is no sufficient ground of rever- |
sal, and we should feel constrained to af- |
firm the judgment were this the only error. |
The plaintiff introduced James Crow |
der as witness by whom he proceeded |
to prove conversation between negro |
while in the employment of the defend |
ant and the witness
The witness stated that while the negro |
was engaged in hauling rails and placing |
them around the field of defendant the |
negro said to witness, that he got the rails |
on the Turney place by direction of de- |
fendant and that defendant asked him if |
any person saw him, to which the negro |
said he replied to defendant that Robert |
Kinneham saw him. 1t is certainly true
that it is competent to prove in cOnnec- |
ton with an act which it is competent to |
prove what the individual said while |
performing the act which is explanatory |
of the act. What is thus said |
is so intimately blended with the act !
which is proved, as to constitute part of |
it and is sometimes termed verbal acts |
and are allowed to go to the jury as a
part of the res geSto.
But in the present instance the coAver-
sation between the witness and the negro |
cannot be brought within this rule. If it |
were conceded to have been competent,
to prove that the negro said he got the rails
from the Turney place by the direction of
the defendant it was certainly going out
side of every rule of evidence to allow
the witness to state that the negro said
the defendant asked him if any person
saw him take the rails. Such evidence
was illegal and calculated TO impress upon
the minds of the jury that the defendant
was taking the rails stealthily.
Let the judgment be reversed and Tie
cause remanded. MoCLAIN, Judge.
ALABAMA NEWS.
Tranquility has been entirely restored
-, a. J;,A, e