Denison v. League

• Decision Date: 01 January 1856
• Citation: 16 Tex. 399
• Parties: JAMES DENISON v. THOMAS M. LEAGUE.
• Court: Texas Supreme Court

16 Tex. 399

JAMES DENISON

v.THOMAS M. LEAGUE.

Supreme Court of Texas.

1856.

In discussing the question of the correctness of the decision of the court below in arresting the judgment in this case, we are confined to the record of the plaintiff's petition alone, as much so as if the petition were presented for adjudication by a demurrer. If the facts stated would have authorized the finding of the verdict by the jury, the judgment ought to have been awarded on their finding. If, on the other hand, the petition has not, by its structure, laid the foundation for testimony to have sustained the verdict, it was properly overruled.

A motion for the arrest of judgment is not tried by the evidence actually received, but by the law applied to the record. (In this case it did not appear what evidence had been received.)

Relief is sometimes allowed, different from the relief specially prayed, under the general prayer for relief, but the relief granted in such cases must be consistent with the objects of the petition. Such different relief is never allowed where it is calculated to surprise the other party, as where it is inconsistent with the relief prayed, or where there is no obstacle in the way of the relief prayed for, and the plaintiff proposes to neglect and pass over the prayer he has made and take another decree, even though it be according to the case made by his bill.

See this case as to vagueness of allegations in the petition, on a motion in arrest of judgment.

There is no rule that has been so stringently enforced in this court as the rule that the allegations must be broad enough to let in the proof, and that no evidence, not supported by the allegations, can sustain a verdict. [1 Tex. 443;3 Tex. 305;post, 549; 28 Tex. 219.]

We have uniformly held that all the parties in interest, to be affected in any way by the decree or judgment sought to be obtained, if known, ought to be made parties, defendants or plaintiffs, in the suit.

Appeal from Galveston. Tried before the Hon. Joseph C. Megginson.

There was no statement of facts nor bill of exceptions.

Sherwood & Goddard, for appellant.

R. & A. M. Hughes, for appellee.

LIPSCOMB, J.

The appellant, who was plaintiff in the court below, sets out in his petition that previous to the declaration of independence by Texas, Power & Hewitson had received from the sovereign authority of Coahuila and Texas and also of the supreme government of Mexico, an empresario grant of land, lying between the Lavaca and Nueces rivers, in the now state of Texas, and embracing about thirty leagues of land, lying in the counties of Calhoun, San Patricio and Refugio, and known and called as Hewitson & Power's colony; that the said Hewitson & Power complied with the conditions of the said empresario grant, so as to entitle them to a conveyance of what were called indemnification and premium grants, and which said compliance with the said empresario grant actually vested the equitable and legal title in the said Power & Hewitson; that afterwards, and previous to the contract between said Power and petitioner, Power purchased out the interest of the said Hewitson in the said lands, so that the fee of said lands became vested in the said Power, as appears by the said agreement hereinafter set forth. The petition then alleges that the said Power and petitioner entered into an agreement, the substance of which is as follows: This agreement entered into on the 3d day of January, 1845, by and between James Power of the one part, and James Denison, attorney at law, of the second party, witnesseth, that Denison, in his capacity as attorney at law, has undertaken to bring suit and prosecute against the republic of Texas the claims of said Power as empresario, for the colonization of a certain coast colony, lying between the Lavaca and Nueces, commonly called Hewitson & Power's colony; that Power claimed to have purchased the interest of said Hewitson in the said colony, and the said Power, for and in consideration of the legal services of said Denison, so to be rendered, promises and agrees to yield to the said Denison one undivided eighth part of all the lands to which the said Power, both in his own right and as purchaser of said Hewitson, may be decided to be entitled as empresario of said colony, either as premium lands or as indemnification lands, the words indemnification lands being understood to refer to a grant of sixteen leagues of land made to said Hewitson & Power, to indemnify them, in case of a failure to comply with the original contract of colonization; the contract not to refer to any lands purchased by Power of said Hewitson, except the premium lands and the indemnification lands; that Denison is to receive from said Power legal titles and conveyances to one undivided eighth part of said land; one league on the waters of the bayou or creek Media and Agua Seca, having been previously sold, is not included. It is alleged that petitioner commenced and carried on at great labor and expense, an examination into the title of said lands, with a view to prosecution of suit or suits against the republic of Texas, and with a view to a prosecution of suits against a large number of settlers on the said lands, and in such examination and collection of data and documents, spent from one to two years for the purpose of substantiating Power's claim and right of possession to the said lands. It is further alleged that the agreement with Power impliedly extended to bringing suit against the settlers upon said land who held adversely to said Power; that such was the understanding between the parties; that petitioner's interest of one-eighth part extended to all the lands so claimed by Power, whether obtained by suit, compromise or otherwise; that for the better securing success, petitioner had employed able counsel to assist him, and had promised and came under obligations to pay large fees, for which he expected to reimburse himself from his share of the lands. Petitioner alleges that for the purpose of better fortifying the title of the said Power, he had brought suit against the republic of Texas, and, in the prosecution of said suit, had fortified the title of the said Power, and shown that equitable title was vested in Power, and the fee against the republic and all persons claiming under the republic; that plaintiff had, with the concurrence and assent of the said Power, commenced a large number of suits to recover possession from such settlers, and to prevent the running of the statute of limitations; that in the commencement and prosecution of said suits he incurred great expense in the employment of assistant counsel; that he was moved thereto by the prospective gain to be derived from the contract; that afterwards, when the titles to the said lands had become fortified and established with greater certainty by the labors of petitioner, and the lands more valuable by emigration, the said Power and the defendant, Thomas M. League, entered into the contract marked A, and made a part of plaintiff's petition. By this contract Power conveyed all his lands to League, on certain trusts; the most important to the consideration of this case is, that League is to bring suit for them in the United States court; is to employ counsel and to pay all expenses to be incurred; that he is to pay one-third of the expenses of previous litigation, which is liquidated at one thousand dollars for his share; that he may sell portions of the said land with the assent of Power; that when all litigation is ended, League reconvey two-thirds of all the land conveyed to him to Power and those he (Power) repre sents. It is further alleged, that up to the time of the contract between Power and League, and at that time, he was ready and willing, and was still willing, to perform every part of the contract between petitioner and Power, and was ready and willing to continue to do so until prevented by the defendant, Thomas M. League. The petition alleges that at the time the said contract was entered into between Power and League, the said League was fully apprised of the interest of the plaintiff in the said lands; that, with a full knowledge of all the facts, the said League had caused suits to be brought in his own name in the United States court for the said lands, and had employed other counsel and dismissed petitioner from all participation in the said suit. It is alleged that the said lands are worth from one hundred to three hundred thousand dollars, and that petitioner's equitable interest therein is worth from ten to thirty thousand dollars, and would have yielded that amount if his rights had not been interfered with by the said League. The petitioner insists that League, under his contract, became...