H. Block & Co. v. Weiller

• Decision Date: 03 June 1884
• Docket Number: Case No. 5197.
• Citation: H. Block & Co. v. Weiller, 61 Tex. 692 (Tex. 1884)
• Court: Texas Supreme Court
• Parties: H. BLOCK & CO. v. ISAAC C. WEILLER.

61 Tex. 692

H. BLOCK & CO.

v.ISAAC C. WEILLER.

Case No. 5197.

Supreme Court of Texas.

Jun. 3, 1884.

APPEAL from Milam.Tried below before the Hon. W. E. Collard.

The opinion states the case.

Antony & Wilcox, for appellant, cited: R. S., art. 1301;McCoy v. Jones, 9 Tex., 363;Ewell v. Anderson, 49 Tex., 703;Thomas v. Hill, 3 Tex., 270;Egery v. Power, 5 Tex., 501;Bradford v. Hamilton, 7 Tex., 55;Cunningham v. Wheatly, 21 Tex., 184;Slaughter v. Hailey, 21 Tex., 537;Hobby's Land Law, § 163; Texas Pleading and Practice, by Sayles & Bassett, § 603;Gilder v. McIntyre, 29 Tex., 89;Goodlett v. Stamps, Id., 121;Wheeler v. Pope, 5 Tex., 262;Storey v. Nichols, 22 Tex., 87;Grier v. Powell, 14 Tex., 320;Burton v. Lawrence, 4 Tex., 373;Cartwright v. Roff, 1 Tex., 78.

Henderson & Henderson, for appellee, cited: R. S., secs. 1260-1301;Peck v. McKellar, 33 Tex., 234;Storey v. Nichols, 22 Tex., 87;McDonald v. Tinnon, 20 Tex., 245.

WILLIE, CHIEF JUSTICE.

Weiller sued H.Block, Frank Block and Theresa Block in an action of “trespass to try title” to recover a house and lot in Rockdale.The defendants united in pleading a demurrer, general denial and “not guilty,” and H.Block and his wife, Theresa, pleaded also that the premises belonged to them and constituted part of their homestead, and hence were not subject to execution for plaintiff's judgment, upon which the claim of the latter rested.They also set up the facts upon which they relied as showing the premises in suit to be a part of their homestead.They averred that plaintiff's claim cast a cloud upon their title, which they prayed might be removed, and that any pretended title of Weiller??s might be divested out of him and vested in H.Block and wife, and for general and special relief.

To this plea plaintiff filed a general and special demurrer and a general denial.The case was tried before the judge without a jury.The plaintiff demanded of H.Block that he produce the deed showing title in him to the land sued for, and Block not being able to do this, it was agreed between the parties that the title was in H. Block.Plaintiff then introduced a judgment in his favor against Block, and also offered in evidence an execution issued thereon.But this latter was ruled out, because it appeared that the sale under it was made after return day.The plaintiff then proposed to take a non-suit, but the defendants objected because H.Block and Theresa Block had filed their cross action alleging plaintiff's claim to be a cloud upon their title, and asking a decree of title in them quieting the same.The court thereupon directed the defendants to proceed with their proof.The defendants stated that there was no necessity for further testimony under the facts, because title was admitted by plaintiff to be in defendantH. Block.They thereupon rested their case, and asked a judgment in favor of defendants because plaintiff could not now cure the defects in his title.This was refused by the court, and the plaintiff was allowed to take the non-suit.From this judgment the defendants have appealed to this court, assigning as error the ruling of the court allowing the non-suit when the defendants had a cross-action in the suit against plaintiff to remove cloud from title.

Our statutes allow a plaintiff to take a non-suit, in a case like the present, at any time before the decision of the court is announced, provided he does not prejudice the right of the defendant to obtain affirmative relief upon any counterclaim he may have pleaded.R. S., §§ 1260, 1301.

At the time the non-suit in this case was proposed, the plaintiff had admitted title in H.Block and attempted to show the manner in which it had been divested, but had failed in his proof as to the sale under execution.Under this condition of evidence the defendants were entitled to a judgment on their plea of “not guilty,” or the plaintiff was authorized to take a non-suit unless the special plea of H.Block and wife prevented it.

This plea sought the affirmative relief of having the plaintiff's claim removed as a cloud upon their homestead right and to have his title vested in them.The defendants were in effect saying to the court that, admitting that plaintiff has a claim to this property by purchase under execution against H.Block, that purchase is of no avail, because at the time of the accrual of this claim the premises were the homestead of these defendants.To this plea the plaintiff had, among other things, pleaded a general denial by way of supplemental petition.

The offer of plaintiff to discontinue his suit did not withdraw this answer to the counterclaim of defendants.Even had the nonsuit been granted, leaving the counterclaim of defendants to be tried, the plaintiff's answer to that counterclaim remained, and put the defendants...