Hughes v. Lane

• Decision Date: 01 January 1860
• Citation: 25 Tex. 356
• Parties: REECE HUGHES v. DAVID LANE.
• Court: Texas Supreme Court

25 Tex. 356

REECE HUGHES

v.DAVID LANE.

Supreme Court of Texas.

1860.

Matter relied upon in avoidance unsupported by evidence, does not warrant the court in submitting the issue presented by it to the jury, and a judgment based upon a verdict sustaining the same will be reversed.

Under an issue claiming the benefit of the exception in favor of aliens, provided for in the statute of limitations, it must appear, to sustain that issue, if such aliens were of foreign birth, that they were not residing in Texas on the day of the declaration of independence.

A judgment final on demurrer in favor of the defendant, in an action of trespass to try title, is not such a decision of the case as the statute giving a second action contemplates, and therefore does not interrupt the running of the statute of limitation. 22 Tex. 193;23 Tex. 165; 25 Tex. S. 96.

A plaintiff relying on an exception in his favor, to the running of the statute of limitation pleaded by the defendant, must specially plead the exception by way of replication. This rule is as applicable in an action of trespass to try title as in any other case.

APPEAL from Cass. Tried below before the Hon. W. S. Todd.

This was an action of trespass to try title, brought by David Lane against Reece Hughes, for a tract of land; it being the second suit brought by the plaintiff against the defendant for the same land. The first suit was filed in August, 1847, and at the March term of the district court, on demurrer and special exceptions to the petition, judgment was rendered for the defendant. In the supreme court, the judgment was affirmed in May, 1854, without reference to the merits, on the transcript of the record filed by Hughes, the appellee, the appellant failing to file the transcript within the time prescribed by law. At the same term, and it seems on another transcript, the said court dismissed the appeal for want of an assignment of errors, and because there was no notice of appeal given in the court below. This second suit was filed January 12th, 1855, the petition alleging the institution and disposal of the first suit, and claiming the benefit of the law authorizing a second suit within twelve months after the determination of the first. The defendant pleaded the statutes of limitation of three, five and ten years, claimed the value of his improvements under the “good faith” law, pleaded “not guilty,” and specially that the headright certificates of Henry L. Lane, under which plaintiff claims the land sued for, were procured by fraud, in this, that the said David was not a citizen of the republic of Texas on the 2d day of March, 1836, nor at any time previous to that date; that if he ever resided in said state, that he abandoned the country before his death, and took up his residence in the state of Arkansas. That the proof made by the plaintiff and the heirs at law of the said Henry L. Lane before the board of land commissioners of Red River county, to procure the issuance of said headright certificate, was false and fraudulent, the plaintiff and the heirs aforesaid well knowing said falsity and fraud. The defendant pleaded that a portion of the land sued for, was included within the limits of a prior survey for one Joseph Burleson, whose superior title he set up, and on the trial the fact was admitted by the parties, and so far as that portion was concerned, the verdict and judgment was rendered in accordance with those facts. The defendant also pleaded in bar the rendition of the judgment in the first suit in the district court between the same parties for the same tract of land, unreversed and not appealed from.

The plaintiff filed no replication or other pleading than his original petition, which is in the ordinary form of actions of trespass to try title, alleging the ownership of the land as follows: “that on the fourth day of May, 1851, and within three years last past, he was the owner and possessor of his own right of the following tracts or parcels of land, to wit;” setting forth a description of the land by the field-notes.

The plaintiff's title, so far as it need be stated for the purposes of a statement of the case, rested upon a first class certificate for one-third of a league of land, and survey under it, granted to Henry L. Lane, as “an emigrant to Texas in February, 1836,” and remaining a citizen of the republic; and a deed from William and Elizabeth Lane made on the twenty-third day of May, 1847; claiming in support of his title, that the said grantors to him were the sole heirs of Henry L., the original grantee, who, as he alleged, died intestate, without leaving a surviving wife or lineal descendants.

The testimony showed that the defendant had been in the occupancy and cultivation of the land from the year 1839 up to the time of trial, under certificates and surveys of one Burris, and one Robert Hughes, and the patented survey of said Burleson, claiming under them by deeds, transfers, etc., said surveys conflicting with the Lane survey.

It was proved that Henry L. Lane was the son of William and Elizabeth Lane, and formerly lived in the state of Tennessee; that he came to Texas during the spring of the year 1836, and resided in what is now Bowie county, and died during the summer of the same year, as witnesses understood, in the state of Arkansas. One of the witnesses (Talbot) stated that he saw him a few days before he started on the trip on which he died, and he told him he intended going to Tennessee to bring out his parents to Texas.

Witness Wooten stated that Lane was a single man, and died in Washington county, Arkansas. Witness Fort stated that he never was a married man. It was not proved where William and Elizabeth Lane resided; the fact, as to their place of residence at any period of time, does not otherwise appear than as suggested in the testimony of the witness Talbot. The plaintiff offered in evidence a conveyance to himself from William and Elizabeth Lane, to the land.

The court charged the jury that if William Lane and Elizabeth Lane were the heirs of Henry L. Lane, and were at the time of the death of said Henry L. residing in Tennessee, or out of the republic of Texas, they were alien heirs, and under the constitution and laws in force, were entitled to nine years within which time to become citizens, and either themselves take possession of, or sell the land; and if they did within that time sell the land to plaintiff, no statute of limitations would avail the defendant during the continuance of the nine years, or at least up to the date of our annexation to the United States. To which the defendant excepted, and assigned the same as error for revision. The jury found that the defendant was entitled to three hundred and thirty-nine and one-half acres of the land that is contained in the Burleson survey, and that the plaintiff is entitled to the balance of the tract of land sued for, and two thousand three hundred and twenty-five dollars damages. Judgment rendered accordingly.W. B. Ochiltree, for the appellant. It was not until the argument of this case to the jury, by the learned counsel for the appellee, that the appellant was informed of the grounds upon which the appellee expected a recovery. We were then, for the first time, informed that the father and mother of Henry Lane, at the date of his death, were his heirs, and that they were aliens and were entitled to the nine years allowed under the statute to assert their claim. And here is the main point to be decided by the court in this case.

The petition is in the nature of an ordinary action to try title and to recover damages under the statute. David Lane simply claims to own the land described in his petition; charges the trespasses usual in such cases upon the appellant, and prays for the usual relief; the defendants answer with exceptions and the pleas of the statutes of limitations.

No replication is filed to the pleas filed by the defendant; no amendment to their petition; no notice, in fact, of any character whatever to apprise the opposite party of their reliance on a defense against the statute of limitation, beneath which, under the decision of this court in Andrews v. Cryer, the same were to be crushed out.

Notwithstanding this state of the pleadings, the presiding judge charged the jury as follows: “If you believe, from the evidence, that William Lane and Elizabeth Lane were the heirs of Henry L. Lane, and they were, at the time of the death of Henry L., residing in the state of Tennessee, and out of the republic of Texas, they were alien heirs, and under the constitution and laws in force were entitled to nine years to become citizens, and either themselves take possession of or sell the land, and if they did, within that time, sell the land to plaintiff, no statute of limitations would avail the defendant during the continuance of the nine years, or at least up to the date of our annexation to the United States.”

To this charge of the court the defendant below excepted, because the same was irrelevant to the issues presented by the pleadings in the case, and calculated to mislead the jury and to divert their minds from the true issues in the case.

The court below certainly erred in permitting evidence of the alienage of William and Elizabeth Lane to go to the jury, there being no allegations in the pleadings to sustain such proof. Rivers v. Foote, 11 Tex. 670;Paul v. Perez, 7 Tex. 338.

The court erred in charging upon a question not raised by the pleadings.

Special matter relied on for a recovery over the ordinary pleas allowed by law must be specially averred.

A verdict rendered for plaintiff on pleas of defendant, without replication, is error. 3 Port. 287;2 Stew. 433; Ala. 137.

It is one of the first principles of pleading that it is necessary to state facts so that the court, whose duty it is, can declare the law arising on these facts, and to apprise the opposite party what is meant to be proved in order to give...