Horton v. Hamilton
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 606 |
| Parties | ALBERT C. HORTON v. MORGAN C. HAMILTON. |
| Court | Texas Supreme Court |
The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that which was directly in issue, and not to everything which was incidentally brought into controversy during the litigation. The rule applies only to what was directly in issue and determined by the judgment; and it must have been a decision upon the merits.
Where A brought suit for a mandamus to compel the district surveyor to survey and return certain land for patent, setting out the facts of his claim to the land, and the surveyor answered that the land had already been surveyed and returned for patent upon the application of B, and on motion of B, he, B, was made a defendant, and filed an answer alleging that the land belonged to him by virtue of the surveys made as aforesaid, and specially objecting to the application for mandamus on grounds, some of which went to the merits of their respective claims, and others to the merits of the application for mandamus merely, without regard to the merits of the title; and the judgment of the district court merely was that the mandamus be refused; and on appeal said judgment was affirmed on grounds which did not go to the merits of the title; in a subsequent suit by B against A to recover the land, it was held that the merits of the title had not been adjudicated in the first suit, and that the judgment was not a bar.
Appeal from Guadalupe. Tried below before the Hon. Thomas J. Devine.
Action of trespass to try title to certain land, commenced March 18th, 1853, by Morgan C. Hamilton against Oscar Frederick. Spring term, 1853, Albert C. Horton was made a defendant by agreement, and cause continued. Answer by Horton, claiming to be the real owner of the land sued for, and landlord of defendant Frederick, and alleging the particulars of his title. Replication of former judgment, alleging the particulars. Rejoinder, that defendant was not barred or precluded from his defense, pleaded by him as aforesaid, by reason of said former judgment, because he says the subject matter of said suit, wherein said former judgment was rendered, is not identical with the present; nor were the same matters adjudicated in that suit. And further defendant avers, that the said judgment was rendered in the year 1852, and that one year did not elapse from the rendition of said judgment before the commencement of this suit by plaintiff. Wherefore, etc. Defendant also excepted to the plea of former judgment, on the ground that his answer, which was a plea of intervention and reconvention, was filed within twelve months after the determination of the former suit, in the supreme court. Defendant's exception to the plea of former judgment was overruled; wherefore the court proceeded to the consideration of the said plaintiff's plea in bar, of former adjudication, upon the record, submitted in support thereof, in the case of Albert C. Horton v. James R. Pace and M. C. Hamilton, from the district court of Travis county; and upon the admission of counsel as to the identity of the parties; and after full argument had upon the issue presented by the plea or replication of said plaintiff, of former adjudication, as aforesaid, because it seems to the court that the same is fully supported by said record and admission, the same is sustained, etc.
The record from Travis district court was as follows: Petition filed March 15th, 1849, in Travis district court, by Albert C. Horton, alleging that on the 19th of February, 1838, he filed with the principal surveyor of Bastrop county, his headright certificate for a league and labor of land, and pointed out a league of land on the San Antonio road, Guadalupe east side, league No. 1, to be surveyed thereon; that the surveyor made out a set of field-notes, and forwarded them to the general land office, referring to the field-notes of league No. 1, as aforesaid, then on file in said office, as a part of the archives of Milam's colony; but the commissioner refused to patent said land because it conflicted with said league No. 1, titled to one Henry Brown; and for no other cause or reason; that plaintiff then commenced a suit against said Henry Brown, to set aside his said title, and against the commissioner of the general land office, to obtain a patent; and after a full hearing of said matter in our supreme court, the title of said Brown was vacated and the commissioner ordered to make a patent to plaintiff. See 2 Tex. 78. Plaintiff further alleged that in the meantime the original papers were lost, and plaintiff obtained a duplicate; but he had since found the originals and filed them with the surveyor of the Travis district, the said land lying therein since the division of the counties; that plaintiff had applied to the county surveyor of said Travis district, James R. Pace, who resides in said county of Travis, and requested that said land be now surveyed for him, on his said application; but said surveyor declines to make said survey, although plaintiff's certificate has been reported genuine and the surveying fees have been tendered to him. Prayer for mandamus to Pace to show cause, etc., and for general relief. Answer by Pace that on the application of Joseph Rowe, a citizen of Travis county, made on the ____ day of ______, 1848, by virtue of three certificates, for 1,280 acres each, said land had been surveyed and the field-notes returned to the general land office; a copy of said field-notes were filed as part of this answer. Respondent further stated that he was unable to find in his office, any location or survey of said land for plaintiff, and that if any location or survey thereof had ever been made by the surveyor of Bastrop county, the evidences thereof had never been returned to the office of the surveyor of Travis district. He could, however, state that on the 28th February, 1849, plaintiff filed in his office his headright certificate, having indorsed thereon a memorandum which plaintiff claims as a location of the land in controversy, and made application for a survey thereof; which survey respondent refused to make, as it conflicted with the surveys theretofore made for Joseph Rowe, as aforesaid. Respondent, in compliance with the requisition of plaintiff, returned a copy of the papers filed in his office by plaintiff; from which it...
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