Pinchain v. Collard

• Court: Texas Supreme Court
• Writing for the Court: HEMPHILL
• Citation: Pinchain v. Collard, 13 Tex. 333 (Tex. 1855)
• Decision Date: 01 January 1855
• Parties: PETER PINCHAIN v. J. S. COLLARD.

13 Tex. 333

PETER PINCHAIN

v.J. S. COLLARD.

Supreme Court of Texas.

1855.

Error from Montgomery.

N. H. Davis, for plaintiff in error. There was error in the District Court in decreeing the sale of the land--

1st. Because neither the averments or prayer of the petition contained a statement under which evidence to justify the decree could have been introduced. (Hart. Dig., art. 671; 1 Chit. Pl., 278; Gould's Pl., 172; Story's E. P., sec. 27, 28, 255, 257, 40-43.)

2d. Because the vendor's equitable lien does not exist in the hands of an assignee of the debt. 3d. Because the petition was well calculated on its face to deceive and mislead the defendant below.

Smith & Bradbury, for defendant in error.

HEMPHILL, CH. J.

This action is on a note of hand with allegations in the usual form, setting forth the note according to its legal effect, but without exhibiting a copy, and praying judgment for debt, interest and costs, and for such other relief, as the plaintiff might be entitled to in equity. A copy of the note is, however, set forth in the record, and it is as follows, viz:

“On the first day of January, eighteen hundred and fifty-four, I promise to pay Jonathan S. Collard, or order, one hundred and twenty-five dollars, with twelve per cent. interest from the first day of January last until paid, for value received; it being the balance due on one hundred acres of land purchased of Wm. Elkins, and the same tract of land on which I now live. February 28th, 1853.

+---------------------------+
                ¦(Signed,)¦PETER PINCHAIN.” ¦
                +---------------------------+
                

The defendant failing to appear, judgment was given by default for the amount of the note, interest and costs; and it was further decreed that the land specified in the instrument of writing, being the homestead of defendant, be sold to satisfy said judgment.

The defendant sued out a writ of error, and in the petition assigned various errors, viz: That there was error in granting the order of sale, there being no prayer for such order, and no averment in the petition that the note sued on was given for the said land. That the petitioner, Collard, was not the vendor of the said land, and the vendor's lien could not exist in his hands as assignee; and because it is manifest that the recital in the instrument is but a shift to evade the homestead exemption.

We are first to consider whether the order for sale was authorized by the allegations or prayer of the petition; and that it was not is too plain to require any comment.

There is not a syllable in the petition from which it could be inferred that the plaintiff had a lien by the note, or in any other way, on the land in question, or any other land of the defendant. The note was not made a part of the petition, and if it had been the plaintiff could claim no benefit from the recital that it was given for moneys due on land.

He had set forth the contents of the instrument, and his omission of the memorandum would be evidence that he did not intend to claim the lien, or that his judgment should be satisfied out of this property particularly. The object of pleading is to apprise the court and the opposite party of the grounds upon which relief is claimed, and, to some reasonable extent, of the nature of that relief.

Tested by this rule, the petition is wholly deficient. Its averments and prayer will support no other judgment than the one given for its amount, interest and costs. The further decree, that the land be sold, is without any basis for its support and must be set aside.

The next point raised by the assignment is, that the plaintiff, Collard, is not the vendor, and that the transfer of the debt to him did not transfer the vendor's lien.

Whether the lien of the vendor passed by the mere transfer of the note or...