Schmidt v. Talbert

• Decision Date: 25 June 1889
• Citation: Schmidt v. Talbert, 12 S.W. 284, 74 Tex. 451 (Tex. 1889)
• Parties: SCHMIDT <I>v.</I> TALBERT.
• Court: Texas Supreme Court

12 S.W. 284

SCHMIDTv.

TALBERT.

Supreme Court of Texas.

June 25, 1889.

Commissioners' decision. Appeal from district court, Wilbarger county.

Trespass to try title, by Joseph Schmidt against J. H. Talbert, as administrator. Judgment for defendant, and plaintiff appeals.

Rev. St. Tex. art. 4806, provides that where defendant in trespass to try title claims the whole premises, and plaintiff shows himself entitled to recover part, plaintiff shall recover such part.

Jackson & Beckett, for appellant.H. C. Thompson and F. P. McGhee, for appellee.

ACKER, J.

Appellant brought this suit in trespass to try title, and described the land sued for as follows: "One hundred and ninety acres off of the south end of the south half of section No. 20."The defendant answered, setting up title in the estate of his intestate, and alleged that plaintiff's claim was a cloud thereon, and prayed for removal of the cloud.On the trial, the plaintiff offered in evidence the deed describing the land as an undivided half interest in the south half of the section.The defendant objected to the introduction of the deed upon the ground that it purported to convey an undivided half interest in the south half of the section, instead of 190 acres off of the south end of the south half of the section, as described in the petition.The objection was sustained, and this ruling is assigned as error.We think the deed should have been admitted over the objection urged against it.Being sufficient in other respects, the description would have sustained plaintiff's claim to the extent of an undivided half interest in the land described in his petition.Rev. St. art. 4806;Hutchins v. Bacon, 46 Tex. 414;...