Hunt v. Turner

• Decision Date: 01 January 1853
• Citation: 9 Tex. 385
• Parties: HUNT AND OTHERS v. TURNER AND OTHERS.
• Court: Texas Supreme Court

9 Tex. 385

HUNT AND OTHERS

v.TURNER AND OTHERS.

Supreme Court of Texas.

1853.

Where the defendant, in an action of trespass to try title, pleads not guilty, and gives in evidence facts which go to confess and avoid the plaintiff's right of action, the plaintiff has the right, by way of rebutting evidence, without any previous corresponding allegations, to prove any facts which answer the facts proved by the defendant. (Note 61.)

That special matters of defense may be given in evidence under the plea of not guilty in the action of trespass to try title, is no sufficient reason for objecting to those matters being specially pleaded. It is certainly a better mode of presenting them, and more in harmony with our general system of practice, as it advises the opposite party of the grounds of defense, and prevents a surprise by the introduction of evidence not anticipated, and therefore cannot be objected to by the plaintiff.

It is an acknowledged principle in equity that courts exercising equity jurisdiction will sustain the equitable title against the legal title; and such is the rule here, where the jurisdiction of the courts is without regard to any distinction between law and equity.

A contract may be void under the statute of frauds; yet if the conduct of the party setting up the invalidity of the contract has been such as to raise an equity outside of and independent of the contract, and nothing else will be adequate satisfaction of such equity, the sale will be sustained, though not valid under the statute of frauds. (Note 62.)

A party to an illegal contract will not be permitted to avail himself of its illegality until he restores to the other party all that has been received from him on such illegal contract. As long as he continues to hold on to enjoy the advantages of the contract he will not be allowed to set up, to his advantage, its nullity. (Note 63.)

Where heirs, after coming of age, voluntarily put it out of their power to do equity by restoring a party to his original rights, against whom they claim a rescission of a contract made with their ancestor, it will be considered as a virtual ratification of the ancestor's contract.

See this case for circumstances under which the court will decree a conveyance of land, not-withstanding that the contract of sale or exchange under which the equitable circumstances arose was null and void, because made in violation of law.

The Supreme Court will not go beyond the judgment of the court below, where the defendant has not appealed, to grant relief to the defendant which he has not prayed for, although the facts would have warranted further relief.

Appeal from Colorado.

J. B. Jones and N. H. Munger, for appellants.

R. J. Rivers and W. J. Jones, for appellees.

LIPSCOMB, J.

This suit was brought by the appellants to recover a league of land granted by the Government of Coahuila and Texas to William R. Hunt as a colonist in Austin's colony. The plaintiffs claim, one of them to be the widow, and the others the children of the said William R., the grantee. The defendants claim under one Robinson.

The following are the material facts collected from the record: The land sued for was granted to Hunt, who in a short time sold it to Robinson, and received in exchange for it six hundred and forty acres of other land, one hundred dollars, and a horse, the value of which was not in evidence. Hunt went into possession of the land sold to him by Robinson. This was on the 14th December, 1832, and Robinson went into possession of the league and made a small improvement upon and then left it and resided at his old place until his death. There was no evidence of any continued possession until 1838, though it had been frequently occupied in the meantime, and considerable improvements made on it, but under what title was not in proof. From 1838 down to the trial it was claimed under Robinson. It was in evidence that the present defendants, at the time they purchased, about 1841, had notice that it was claimed by the plaintiffs. The plaintiffs remained upon the land received from Robinson, making improvements on the same, down to 1843, and exercised ownership by renting it out down to the 12th of February, 1850, when they sold it to one Carter, after they had commenced this suit. It was in evidence, and not controverted, that the land received by Hunt from Robinson was worth more than Hunt's league.

A deed, purporting to be for the consideration of three hundred dollars, for six hundred and forty acres of land from Cummings to the plaintiffs, dated 1st April, 1841, was read in evidence by the plaintiffs, but no evidence was given to show that it was the same land that Robinson had deeded to Hunt.

The record is so very imperfect that it is impossible to ascertain from it what were the issues that went to the jury. It is, however, understood to be admitted by the counsel for the parties that all were stricken out by the court, upon the plaintiffs' exceptions, but two, one being the plea of not guilty, and the other possession in good faith and valuable improvements made. There are only two errors assigned that we regard as material to be noticed.

First, admission of special matter in avoidance under the plea of not guilty, and second, the rejection of the evidence of the plaintiffs to prove the coverture of one of the plaintiffs, and infancy of others, to bring them within the exceptions to the statute of limitations. The plaintiffs offered this testimony by way of rebutal to the evidence of the defendant to sustain the bar of the statute. This they clearly had a right to do, and it is not perceived why it was rejected, and for this error we would be bound to reverse the judgment if we rested our opinion on the statute of limitations. But it will be seen, hereafter, that this ground of defense is thrown out of our consideration, and it may be admitted that the defendants did not make out that defense. With this admission, if the judgment cannot be sustained, it ought to be reversed.

The appellants object to the ruling of the court admitting special matter of defense under the plea of not guilty. This being an action to try titles to land, there can be no question that, under the article 3235 of the Digest, the evidence was admissible. It was so decided by this court in Punderson v. Love. (3 Tex. R., 60.) The material facts in this case were specially pleaded by the defendants, but their plea was stricken out by the court below, on the exception to the...