Hardy v. De Leon

• Decision Date: 31 December 1849
• Parties: HARDY AND OTHERS v. DE LEON.
• Court: Texas Supreme Court

5 Tex. 211

HARDY AND OTHERS

v.DE LEON.

Supreme Court of Texas.

December Term, 1849.

Where the defendant had obtained special leave to amend his answer within a specified time, and failed to file his amendment within the time specified and up to the time of trial, it was within the discretion of the court to refuse to permit the amendment.

Where no right of the defendant was affected ultimately by the rulings of the court respecting the pleadings, those rulings cannot be made by him a ground for reversing the judgment.

Where the plaintiff claims title under a grant issued by the Government of Mexico previous to the Revolution of 1836, it is not necessary for the petitiou to allege that the grant has been recognized by this Government. The cession or conquest of a country does not affect the rights of property. (Note 38.)

Persons residing here at the Declaration of Independence became thereby citizens.

Where a person left his own country by constraint and went involuntarily to reside in another, his change of residence did not produce a change of his national domicile, but his original domicile and citizenship were retained.

The domicile of the parents draws to it that of their infant children.

An erroneous instruction upon an immaterial or irrevelant point or mere abstract question will not authorize a reversal of the judgment.

It is not error for the court to refuse instructions which assume the existence of facts not proved and are based upon that assumption.

A court is never bound to give instructions in reference to a supposed state of facts when the facts of the case are clear and uncontradicted. Nor is a court bound to give instructions which require modification or qualification. Unless the proposition as asked is true and pertinent to the case, it is not error in the court to refuse it.

It is the duty of the jury to find the very point in issue; and their verdict finding a matter which was not in issue can have no validity, and cannot constitute the basis of a judgment.

In respect to their general rights and disabilities there is no difference in general between alien friends and alien enemies. But there may be cases in which their rights and disabilities are widely different, as where by treaty or statute aliens are enabled to hold lands as citizens, and consequently to maintain any action respecting them which a citizen may maintain. In such a case an alien friend could sue, while an alien enemy, unless resident here, could not maintain an action in our courts. The plea of alien enemy in such a case would be very different from that of alienage merely.

In general the plea that the plaintiff is an alien interposed to an action respecting real property, goes to defeat the right of action altogether. But the plea of alien enemy goes merely to suspend the remedy during the existence of the war. And this plea is not to be favored by intendment. (Note 39.)

Where a person dies leaving issue who are aliens, the latter are not deemed his heirs in law, and the estate descends to the next of kin who are citizens; and if suit be brought for the recovery of land in the joint names of those who are aliens and those who are citizens, it will be abated as to the former and conducted to judgment in the sole right of the latter. (Note 40.)

Where upon a plea that the plaintiffs are alien enemies the verdict finds that certain of them are aliens, but that one of them is a citizen, the defendants cannot object that the suit is abated as to the former, whom they have alleged to be alien enemies, and subsequently conducted in the sole right of him against whom the verdict determined no issue.

“If a defendant has acknowledged the title of plaintiff, he cannot afterwards dispute it.”

Where there are several parties to the record on the same side, the admissions of one will be taken as the admissions of all where there is a joint interest or privity of design between them.

“A recital of one deed in another binds the parties and those who claim under them by matters subsequent.”

Where there was no evidence which under any instructions which the court might have given could have warranted the jury in finding a particular fact, it was not error in the court to refuse instructions respecting the legal consequences of that fact.

To constitute the abandonment of one's country there must be a change of domicile complete and final. (Note 41.)

The ground on which it is proposed to disfranchise a party and to divest his title to his property must be clearly and conclusively established.

It is not error to instruct the jury that a purchase made by a sheriff or an administrator at his own sale is deemed fraudulent in law, and that a fraudulent sale is void.

Instructions given at the instance of a party cannot be assigned as error by that party.

If by mistake the plaintiff strikes out his prayer for specific relief, it will not deprive him of his right to the relief appropriate to his case. Such relief may be granted under the prayer for general relief.

A general verdict for the plaintiff determines every issue in his favor, and the judgment ought to embody the legal consequences of the verdict. (Note 42.)

Where no interrogatories are propounded to the defendants, their affidavits to their answers cannot make them evidence, nor can the affidavits have any legal effect whatever.

The fact that the subject-matter of a suit is properly of equitable cognizance, does not in our practice change the rules of procedure nor require the observance of rules peculiar to a court of chancery. (Note 43.)

Appeal from Victoria. This suit was brought on the 22d day of June, 1844, by Fernando De Leon, as guardian of Francisco Santiago De Leon and next friend of Martin De Leon and Francisco De Leon, infant children and heirs of Sylvester De Leon, against the appellant Hardy, to recover the possession of a league of land. The plaintiff claimed title in his ward and the other infant heirs of Sylvester De Leon, on whose behalf the suit was brought, derived by inheritance from their father, to whom, as a colonist in the colony of Martin De Leon, it had been granted by authority of the State of Coahuila and Texas on the 22d day of April, 1833. The suit as instituted was in form an action of trespass to try title.

The plaintiff, by leave of the court, subsequently amended his petition and made all the appellants defendants. The amended petition alleges in substance that the ancestor of the minor plaintiffs, Sylvester De Leon, died in 1838 seized and possessed of the league of land in controversy; that the infant plaintiffs are his children and heirs; that in 1841 the land in question was illegally sold for taxes pretended to be due thereon for the years 1839 and 1840, and was purchased by the defendants, Gambel, Newcomb, and one Van Norman, (who was also made a defendant, but released upon payment of the amount of his tax-purchase and interest thereon;) that this sale and purchase were illegal and void, and that the defendants who had thus purchased knowing this, and for the purpose of defrauding the plaintiffs and of defeating their right to redeem the land and depriving them of their property and rights, conspired and confederated with the defendant Hardy, agreeing to share and divide the land with him in consideration that he should administer on the estate of the deceased Sylvester De Leon and procure the land to be sold and divided between them agreeably to their said fraudulent agreement; that in pursuance of this agreement Hardy, representing himself to be a creditor of said decedent, applied for and obtained letters of administration on the estate of the deceased Sylvester De Leon on the 22d day of March, 1843; that the deceased at the time of his death was not indebted, and that when the sale for taxes took place there were no taxes due upon the land; that Gambel, Newcomb, and Van Norman made out and presented to the said Hardy, as administrator, &c., accounts against the estate of the decedent, consisting of double the amount of the purchase-money named in their deeds of purchase at the sale for taxes, with interest; that these accounts were accepted and admitted by the administrator, and, except the claim of Newcomb, were allowed by the Probate Court; that these pretended creditors of the estate obtained from the Probate Court an order for the sale of the land to pay said claims; that it was agreed between the parties to these proceedings that they should not bid against each other at the sale, and that each should bid off enough of the land to satisfy his claim, and that the said administrator should receive of the proceeds an amount sufficient to compensate him for his trouble and expense in the administration of the estate; that the fraudulent designs and combination of the defendants prevented others from purchasing, and that their said understanding and agreement were carried into effect by them; that the defendant Ingram was a bidder at the sale, and purchased a part of the land in his own name, but for the use and benefit of the defendant Hardy; that the defendant Hardy, as administrator, caused the land to be sold, and executed to the other defendants deeds to the several portions brought by them in pursuance of their fraudulent agreement and conspiracy, and then resigned the administration, and is now in the possession of the premises purchased by Ingram as aforesaid. The petition charges that the tax sale and the administrator's sale and all the acts of the defendants in the premises were fraudulent and void, and were contrived and designed to cheat and defraud them of their right and title to the land in question. It concludes with a prayer for process, and that the acts of the Probate Court and of the administrator and the several deeds and conveyances under which the defendants claim title be cancelled and annulled, and that the plaintiff have a writ of possession and his damages for the wrongful occupation and...