Trotti v. Post

• Decision Date: 01 January 1874
• Citation: 42 Tex. 349
• Court: Texas Supreme Court
• Parties: J. F. TROTTI v. HOBBY & POST.

42 Tex. 349

J. F. TROTTI

v.HOBBY & POST.

Supreme Court of Texas.

1874.

APPEAL from Jasper. Tried below before the Hon. H. C. Pedigo.

Hobby & Post sued J. F. Trotti and Lewis H. Selig on a promissory note executed by Trotti to plaintiffs, secured by mortgage on eighty acres of land adjoining the town of Jasper, of which land Selig was in possession under a purchase from Trotti; judgment was asked for amount of the note and fore closure. By amendment, July 22d, 1873, plaintiff set out the land by metes and bounds.

Defendants answered general denial, payment and release of the mortgage.

During the trial, on the third day, by leave of the court, the plaintiffs amended their petition “as to description of the land mentioned in the mortgage.”

On the trial plaintiffs read the note declared on and the mortgage upon “a tract of land in and adjoining the town of Jasper, Texas, containing eighty acres, more or less, purchased of F. Hollman and wife, and known as the Trotti place,” to secure the note.

F. Hollman testified (defendant having been notified to produce the deed from Hollman and wife to Trotti) that he sold a tract of land adjoining the town of Jasper on the north, containing about eighty acres, to defendant, Trotti; that the boundaries of the land were the same as those set out in the amended petition, filed 22d July, 1873. On cross-examination witness stated that he made a deed for said land to Trotti at the time of his sale, and that said deed contained no other exceptions or reservations than as mentioned in said amended petition, filed 22d July, 1873, according to his recollection.

Defendant introduced evidence of shipment of cotton and hides, etc., by him to plaintiffs, and correspondence in support of the plea of payment.

Defendant then produced the original deed from Hollman and wife to Trotti, which was read, and thereby it appeared that other exceptions were made out of the tract than as described in the amended petition; and that foreclosure was sought on lands not mortgaged; whereupon, over exceptions of the defendant, and on 28th July (the trial having begun on 25th) the plaintiffs filed a second amendment conforming the description of the land to that given in the deed, instead of the boundaries as testified to by Hollman.

There was conflict of testimony as to the matters pleaded in payment.

Verdict and judgment for plaintiffs, and for foreclosure of the mortgage. Trotti appealed.

Lipscomb Norvel, for appellant, cited Love & Chappell v. McIntyre, 3 Texas, 10; Sayles' Prac., 549; 2 Parsons on Con tracts, 632, 633; 1 Story's Eq. Jur., Sections 459 ai-459 ig.

Jas. B. Morris, also for appellant, cited Stroud v. Springfield, 28 Texas, 649;George v. Thomas, 16 Texas, 74;Dalby v. Booth, 16 Texas, 565;McArthur v. Henry, 35 Texas, 801;Matossy v. Frosh, 9 Texas, 610; Paschal's Digest, 54; Jennings v. Moss, 4 Texas, 454;Croft v. Rains, 10 Texas, 523;DeWitt v. Jones, 17 Texas, 620; 1 Hilliard on Mortgages, 485; 2 Hilliard on Mortgages, 458; Wallis v. Laney, 16 Alabama, 738; 2 Washburn, Real Property, 178; Sherwood v. Dunbar, 6 California, 53; Swain v. Seaman, 9 Wallace, 254;Bronson's Ex'r v. Chappell, 12 Wallace, 682;8 B. Monroe, 542; 2 Parsons on Contracts (5th ed.), 682-686; 1 Story's Eq., Section 385.

Hobby and Peeler & Fisher, for appellees.

DIVINE, J.

The errors assigned, the principal ones being embraced in the bill of exceptions, will be considered, so far as deemed material to notice, in the order in which they were presented on the trial.

The first is that the court erred in overruling defendant's demurrer to plaintiffs' petition and amended petition. The general demurrer of defendant was properly overruled. The petition states a good cause of action against Trotti; it charges that Seelig is in possession of the mortgaged premises under a pretended conveyance from Trotti, with a prayer for citation to the defendant, for judgment for the amount due, with the usual prayer for a decree of foreclosure, and order of sale, etc.

The second assignment is that, “The court erred in overruling defendant's motion to exclude the testimony of Hollman, a witness for the plaintiff as to his evidence.”

Plaintiffs called the witness F. Hollman, who with his wife had conveyed the mortgaged premises to defendant Trotti. In the deed from defendant to plaintiffs he described the mortgaged premises as “a tract of land lying and adjoining the town of Jasper, Texas, containing eighty-one acres, more or less, purchased of F. Hollman and wife, known as the Trotti place.”

Hollman was called to identify the tract, as the same land which plaintiffs sought to subject to a judgment of foreclosure. The bill of exceptions shows that defendant objected to the evidence of witness, on the ground that the deed was the best evidence, and that plaintiffs had not laid the foundation for the introduction of secondary evidence. The deed itself was unquestionably the best evidence; defendant, however, prevented plaintiffs...