Bradford v. Hamilton

• Decision Date: 01 January 1851
• Citation: 7 Tex. 55
• Parties: BRADFORD AND OTHERS v. HAMILTON.
• Court: Texas Supreme Court

7 Tex. 55

BRADFORD AND OTHERS

v.HAMILTON.

Supreme Court of Texas.

1851.

The plaintiff cannot maintain a suit commenced without any order of delay by evidence of a title subsequently acquired.

Where the answer of a defendant contains matters which constitute a cause of action against the plaintiff, and prays judgment upon the same, the plaintiff cannot take a voluntary nonsuit, whether the answer be called a plea in reconvention or a petition in the nature of a cross action, or by whatever designation. (Note 9.)

Appeal from Williamson. This suit was instituted by the appellee, on the 7th day of September, 1849, to recover a tract of land described in the petition, and claimed by the plaintiff by virtue of a certificate located and surveyed. The defendants, in their answer, alleged that the same lands had been previously located and surveyed for themselves by virtue of a certificate of which they are owners; that the plaintiff fraudulently obtained possession of the defendants' certificate and field-notes before the same were returned by the surveyor to the proper office and recorded; that he for a long time retained the certificate, and has destroyed or concealed the field-notes, whereby the defendants were prevented from having a due return made of the location and survey to the General Land Office and obtaining a patent for the land. They further allege that if the plaintiff has a location and survey of the land, it was obtained after the destruction or secreting by him of the field-notes of the defendants. And they pray that his location and survey, if any he have, as alleged in his petition, be canceled and annuled, and that the location and survey of the defendants be established and adjudged to them, and they be quieted in the possession of the lands in controversy.

On the trial, the plaintiff read in evidence a certified copy of the field-notes of a survey of the land from the General Land Office, described as “Survey No. 23, for M. C. Hamilton, assignee of A. B. Scamum, Ass. of Thomas B. Huling, Ass. of James Sweney,” purporting to have been made on the 20th day of April, 1847. He then offered in evidence a patent from the State to himself for the land, bearing date on the 21st day of January, 1851, reciting the transfer to him of the certificate on which it issued, on the 15th day of January, 1851.

To the admissibility of this evidence the defendants objected. Their objection was sustained. The plaintiff excepted, and thereupon asked leave to take a nonsuit, to which the defendants objected, and the court overruled their objection and gave judgment that the plaintiff be nonsuited, &c. Whereupon the defendants appealed.

J. Webb and W. S. Oldham, for appellants. There is but one question in this case. The appellants, being defendants below, having pleaded in reconvention, the plaintiff had no right to take a nonsuit, so as to deprive them of the benefit of their plea. The question has been settled by this court against the right to take a nonsuit in such a case. (Thomas v. Thomas, 3 Tex. R., 270; Egery v. Power, 5 Tex. R., 501.)

A. J. Hamilton and J. Hancock, for appellee.

I. The court erred in not permitting appellee to read the patent in evidence, obtained pending the suit, upon the certificate and field-notes on which the suit was instituted. It was not a title acquired after the institution of the suit, but only the same title perfected by obtaining the highest evidence of right to the land. The character of title described in the petition--a survey made in conformity to law upon a genuine certificate--was sufficient to enable appellee to maintain his suit. The patent did nothing more than give the same right in a more perfect form. It cannot be maintained that the institution of the suit had the effect of an injunction restraining the appellee from obtaining a patent.

II. The objection taken to the introduction of the patent having been sustained by the court, it would seem to follow, as a matter of right, that the plaintiff should be allowed to take a nonsuit. The title sought to be set aside and annulled by appellants in their amended answer was, upon their own motion, excluded from the consideration of the court. There then remained in the pleadings no question for the court to act upon. No complaint being made for damages or prayer for possession of the land, it is not believed there is any analogy between this case and the case of Egery v. Power, decided at Galveston. In that the defendant, in his reconvention, pleaded title in himself, and claimed a large amount of damages for trespass committed by the plaintiff. Again, in that case the nonsuit was voluntary; in this, it was compulsory by the act of the appellants' objecting to having the title they wished to have set aside brought before the court.

WHEELER, J.

The evidence of title offered by the plaintiff appeared to have been acquired after the commencement of the suit. It was therefore rightly rejected. There was no evidence that the plaintiff had any right whatever at the time of bringing his action, and it is quite too clear for argument that he could not maintain a suit commenced without any color of title by evidence of a title subsequently acquired.

The only question in the case which requires to be considered is, had the plaintiff a right to terminate...