Stephens v. Hix
| Decision Date | 01 January 1873 |
| Citation | 38 Tex. 656 |
| Parties | G. W. STEPHENS v. BEN. HIX. |
| Court | Texas Supreme Court |
1. If the plaintiff demur to the evidence of the defendant, and the defendant join in the demurrer, the question of fact upon the evidence is cast upon the court; and, on appeal, the court will render such judgment as the testimony warrants.
2. A demurrer to evidence is analogous to a demurrer in pleading, the party from whom it comes declaring that he will not proceed because the evidence offered on the other side is not sufficient to maintain the issue.
3. Where both parties claim title under a common source, and plaintiff shows title from such common source, and that defendant is in possession, such evidence is sufficient, and it devolves upon the defendant to show either the nullity of the plaintiff's deed, or prove a superior title in himself.
APPEAL from Johnson. Tried below before the Hon. Charles Soward.
This was an action of trespass to try title for twenty-five acres of land, brought by appellant against Ben. Hix and Nancy Page.
Plaintiff alleged that Mrs. Page and one John P. Bailey had combined to defraud W. C. Philips of the land; that Bailey had a general power of attorney from Philips, of date twenty-third of July, 1859; that at breaking out of the late war, Philips had left the country, and in his absence within the lines of the United States forces, the said Bailey had, in disregard of rights of Philips, sold said land to Mrs. Page for Confederate notes; that said power of attorney was revoked by the said civil war, and that said sale for Confederate States paper was without authority; that after the close of the war Philips had sued Bailey and Page, to set aside said transaction, and that in said suit judgment by default went against Bailey; and that Mrs. Page, having heard that Philips was about bringing suit, had sold the land to the defendant, Ben. Hix, with notice, and disclaimed title.
The defendant set up title by purchase from Mrs. Page, she purchasing of Bailey, attorney for Philips.
The plaintiff on trial read the deed from Philips to him, and the proceedings in Philips v. Page, and showed that defendant, Hix, was in possession.
The defendant read his deed from Mrs. Nancy Page and closed.
The plaintiff demurred to the evidence of the defendant, and the defendant joined in demurrer.
The court sustained the demurrer to the testimony of both the defendant and plaintiff, and rendered judgment for the defendants.
The plaintiff appeals.
A. Bradshaw, for appellant, cited 2 Kent, p. 68; Wright v. Dailey, 26 Tex. 731; Alexander v. Ransom, 28 Tex. 443;Rogers v. Burchard, 34 Tex. 441;Harwood v. Blythe, 32 Tex. 803.
No brief filed for appellee.
On the trial of this cause, after the evidence of both plaintiff and defendant had closed, the plaintiff demurred to defendant's testimony, and the defendant joined in the demurrer; thereupon the court withdrew the cause from the jury, and decided the same upon the demurrer. This, says Bouvier, is the correct practice, and he refers to Arch. Prac. 186, and other authorities, as supporting the rule enunciated. He further says, that “A demurrer to evidence is analogous to a demurrer in pleading, the party from whom it comes declaring that he will not proceed, because the...
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Dempsey v. Norfolk & W. Ry. Co.
... ... [n] ... (Tex. 1873) If plaintiff demur to the evidence of defendant, ... and defendant join in the demurrer, the question of fact on ... the evidence is cast on the court. On appeal, the court will ... render such judgment as the testimony warrants.--Stephens v ... Hix, 38 Tex. 656 ... [o] ... (Vt. 1904) The purpose of a demurrer to the evidence is not ... to bring before the court an investigation of facts in ... dispute, nor the weight of evidence, but to refer to the ... court questions of law arising on the facts as ... ...
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Straus v. Shamblin
...v. Meunsch, 66 Tex. 68, 17 S.W. 397; Simmons Hardware Co. v. Davis et al., 87 Tex. 146, 27 S.W. 62; Keys v. Mason, 44 Tex. 140; Stephens v. Hix, 38 Tex. 656; Broom et al. v. Pearson et al., Tex.Civ. App., 180 S.W. 895, writ refused; Boswell et al. v. Pannell, 107 Tex. 433, 180 S.W. 593; Odo......
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Woodward v. Ross
...beyond a common source, and it was the duty of appellant, and not that of appellee, to prove an outstanding title. The case of Stephens v. Hix, 38 Tex. 656, which is approved in Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S. W. 62, squarely meets the contentions of appellant that the pos......
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