Markham v. Carothers

Citations

• 47 Tex. 21

Syllabus

<p>1. Disclaimer—Parties—Witness.—A defendant sued for land, who disclaims, when there is no further controversy as to him, is not thereafter such a party in subsequent proceedings between the plaintiff and an intervenor claiming the land, that he would be prohibited from testifying to the transactions with plaintiff’s intestate, under Paschal’s Dig., 6826, 6827, allowing parties to testify, &c.</p> <p>2. Statutory construction.—Exceptions to the statutory rule, (Paschal’s Dig., 6826, 6827,) that a witness shall not be excluded because he is a party to or interested in the issues tried, will not be extended by construction.</p> <p>3. Practice—Burden of proof.—Where the defendant has the affirmative of the issue on trial, he has the right to introduce in evidence, in rebuttal, anything which is in direct answer to that produced on the part of the other party.</p> <p>4. Same.—In this State, the usual practice has been that “the party is only required to make a prima facie case in opening, and may-reserve confirmatory proof in support of the very points made in the opening, till he finds on what points his opening case is attacked, and then fortify it on these points.”</p> <p>5. Fact case.—See case where evidence of testimony in rebuttal was erroneously excluded.</p> <p>6. Trust—Parol evidence—Certainty.—While it is true that a parol trust in lands must be established with clearness and certainty, it is questionable whether it be correct to indicate that certainty of proof as “meaning that the trust should be established with clearness, beyond a reasonable doubt.”</p> <p>7. Charge.—It is error to charge upon an issue not made by the pleadings. See instance of such error.</p>