Rodriguez v. Lee

Citation26 Tex. 32
PartiesMARIANO RODRIGUEZ v. MARIA J. LEE, ADM'X, AND OTHERS.
Decision Date01 January 1861
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

Where defendants in an action of trespass to try title were permitted, under the general issue, to offer evidence of title in themselves by purchase at sheriff's sale under a judgment against the plaintiff, it was competent for the plaintiff to rebut such evidence by proving that the judgment was obtained by fraud; and, under such circumstances, it was not incumbent on the plaintiff to plead any facts showing the nullity of such judgment, or of the title set up under it.

The fact that the plaintiff in the judgment so offered in evidence died before the suit was brought in which such judgment was rendered, may be proved by the party rebutting it as a circumstance conducing to the proof of fraud in obtaining it.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This was an action of trespass to try title, instituted by the appellant on the 29th of April, 1853, for the recovery from the appellees of a certain tract of land in Bexar county, described by metes and bounds.

The defendants answered with a general denial, the statutes of limitation of three, five and ten years, and alleged title in themselves derived under a patent from the republic of Texas, issued on the 25th of February, 1842; but they made no averment with regard to the judgment referred to in the opinion of the court, the record of which judgment they introduced in evidence at the trial to sustain title derived by purchase at sheriff's sale. For the facts relative to this judgment, reference is made to the case of Thouvenin v. Rodriguez, 24 Tex. 468, cited in the opinion. As the opinion has relation only to questions arising out of this judgment, the other facts are omitted.

I. A. & G. W. Paschal, for appellant.

Hewitt & Newton and Jas. Dennison, for appellee.

ROBERTS, J.

This case presents questions similar to those in the case of Thouvenin v. Rodriguez, 24 Tex. 468.

In that case it was said: We incline to the opinion that the alleged donation from Jose Maria Rodriguez to his father, Mariano Rodriguez, was complete,” etc. Id. 478. And in relation to record of the judgment of Cortes against Rodriguez, it is said: We are of opinion that upon its face the judgment was not void for the want of jurisdiction, and consequently that it was admissible in evidence. Whether it may be avoided by proof that the defendant was a nonresident at the time of the institution of...

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9 cases
  • Shary v. Eszlinger
    • United States
    • North Dakota Supreme Court
    • March 2, 1920
    ...Civ. Cas. (Willson) 603; Nevins v. McKee, 61 Tex. 412; Harn v. Phelps, 65 Tex. 592; Cayce v. Powell, 20 Tex. 767, 73 Am. Dec. 211; Rodriguez v. Lee, 26 Tex. 32; Hutchins v. Lockett, 39 Tex. 165; Roller v. Wooldridge, 46 Tex. 485; Coffee v. Ball & Co. 49 Tex. 16; Babcock v. Marshall, 21 Tex.......
  • Shary v. Eszlinger
    • United States
    • North Dakota Supreme Court
    • March 2, 1920
    ...App. § 686; Nevins v. McKee, 61 Tex. 413;Harn v. Phelps, 65 Tex. 592;Cayce v. Powell, 20 Tex. 768, 73 Am. Dec. 211;Rodriguez v. Lee, Adm'x, 26 Tex. 32;Hutchins v. Lockett, 39 Tex. 165;Roller v. Wooldridge, 46 Tex. 485;Coffee v. Ball, 49 Tex. 16;Babcock v. Marshall, 21 Tex. Civ. App. 145, 50......
  • Moore v. Snowball
    • United States
    • Texas Supreme Court
    • May 30, 1904
    ...to the plaintiff the rule which the courts have established for the defendant in such cases. Rippetoe v. Dwyer is in conflict with Rodriguez v. Lee, 26 Tex. 32; McSween v. Yett, 60 Tex. 183; Hannay v. Thompson, 14 Tex. 142; Rivers v. Foote, 11 Tex. 672; Hollingsworth v. Holshousen, 17 Tex. ......
  • Texas Creosoting Co. v. Hartburg Lumber Co.
    • United States
    • Texas Supreme Court
    • April 24, 1929
    ...Paul v. Perez, 7 Tex. 338; Miller v. Alexander, 8 Tex. 43; Rivers v. Foote, 11 Tex. 671; Hollingsworth v. Holshousen, 17 Tex. 41; Rodriguez v. Lee, 26 Tex. 32; Viser v. Rice, 33 Tex. 139; Walker v. Howard, 34 Tex. 478; Shields v. Hunt, 45 Tex. 424; Titus v. Johnson, 50 Tex. 224; McSween v. ......
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