Hoodless v. Winter

• Decision Date: 01 May 1891
• Citation: Hoodless v. Winter, 16 S.W. 427, 80 Tex. 638 (Tex. 1891)
• Parties: HOODLESS <I>et al.</I> v. WINTER <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 427

HOODLESS et al. v.WINTER et al.

Supreme Court of Texas.

May 1, 1891.

Appeal from district court, Jones county.

M. A. Spoouts, A. H. Kirby, and Frank Buie, for appellants.Cockrell & Cockrell, for appellees.

HENRY, J.

This suit was brought by appellants in the form of an action of trespass to try title against all of the defendants except Wise.The charge against him was that he was "asserting some kind of a claim" to the land, which was "a cloud upon the title of plaintiff C. A. Hoodless."The prayer of the petition was for a decree against Wise, quieting plaintiff's title against him, and against the remaining defendants, for possession, etc.It does not appear that an answer was filed for Wise, nor that any question was made as to his joinder with the other defendants, or as to the sufficiency of the petition against him.There was a judgment that the plaintiff take nothing against Wise, and no question with regard to him is presented for our revision.The remaining defendants answered with pleas of not guilty, and other defenses appropriate to the action of trespass to try title, and they severally filed separate answers, each describing a specific portion of the land in controversy, and containing, in addition to such description, substantially the following allegations: "Further answering, said defendant says that he has been for a long time, and is now, the legal and equitable owner, seised in fee-simple, of that certain tract of land hereinafter described, and has been for a long time in the quiet and peaceable possession of the same, and is now in the possession thereof; that plaintiffs are claiming and asserting some kind of a pretended and fraudulent title or claim to said land, and by so doing they cast a cloud upon defendant's hitherto good and perfect title; that plaintiff's claim is a cloud on defendant's title as aforesaid, wherefore defendant prays that said title be canceled and declared null and void; and that defendant be quieted in his title and possession of the land aforesaid."The plaintiffs made an unsuccessful application for a continuance.They then offered evidence to establish their title some of which was excluded.At the close of their testimony they asked to be permitted to take a nonsuit, to which the defendants objected, on the ground that they"had pleaded a cross-action, and asked for affirmative relief."The court sustained the objection, and, without entering a judgment of nonsuit as to plaintiffs' cause of action, proceeded with the hearing of evidence offered by the defendants, and rendered judgment that the defendants, except Wise, "should, on their cross-action, have and recover judgment against plaintiffs as prayed for in their cross-petition for their respective tracts of land as hereinafter set forth," etc.Then follow descriptions of the tract of land severally adjudged to each defendant, and an order that they be "quieted in their title and possession" of the several tracts.The plaintiffs did not file any pleading in reply to those of the defendants.In the case of De La Vega v. League, 64 Tex. 215, it was said by this court that "a plaintiff calling a defendant into court for the purpose of obtaining relief against him invites him to set up all defenses which may defeat the cause of action sued on, or any other appropriate and germane to the subject-matter of...