Tudor v. Hodges

• Decision Date: 16 October 1888
• Citation: 9 S.W. 443
• Parties: TUDOR <I>v.</I> HODGES.
• Court: Texas Supreme Court

9 S.W. 443

TUDOR

v. HODGES.

Supreme Court of Texas.

October 16, 1888.

Commissioners' decision. Appeal from district court, Lamar county; D. H. SCOTT, Judge.

Action by J. C. Hodges against I. D. Tudor for the recovery of land. Plaintiff had judgment, and defendant appeals.

Hale, Baldwin & Hale, for appellant. Hodges & Allen and Maxey, Lightfoot & Denton, for appellee.

ACKER, P. J.

Appellee brought this action against appellant on the 17th day of June, 1885, to recover 33 acres of land, a part of the Hiram Williams head-right survey of 483 acres. Plaintiff alleged in his petition that he was the legal and equitable owner of, and holding the legal and equitable title to, the 33 acres of land, describing it by metes and bounds. He also alleged that he was the holder and owner of the legal and equitable title to an undivided one-half of the land, and had been entitled to the possession of the entire tract ever since the 13th day of September, 1881, as against the defendant, and all other persons, except his co-tenant. The petition contained the usual allegations of unlawful entry and wrongful withholding possession by defendant. The prayer was for judgment "for restitution and possession," and costs. The petition was indorsed as in actions of trespass to try title. Defendant answered by general denial and not guilty. The trial was by the court without a jury, and resulted in judgment in favor of appellee for title to one-half and for possession of the entire 33 acres. On the trial appellant offered in evidence a deed from the sheriff of Lamar county to K. L. Tudor, father of appellant, for the 33 acres of land, to which appellee objected upon the ground "that no judgment and execution upon which said deed was based had been introduced." The deed was excluded, and appellant excepted. The trial judge made the following statement upon the bill of exceptions: "When the deed was offered, defendant's counsel, in response to the objection by plaintiff, stated that he had no judgment or execution here to offer, but offered the deed alone." There was no plea of limitation. It was not stated that the deed was offered for any other purpose then to prove title. That such deed is not admissible, without the introduction of the judgment and execution under which it emanated, is too well settled to require discussion. It was admitted by appellant's counsel that he did not have the judgment and execution. We think there was no error in the ruling here complained of. The remaining three assignments of error presented in appellant's brief are in the following language: "The second assignment of error is as follows: The conclusions of law formed by the court from his conclusions of fact in the case; because from the facts found by the court, and from the statement of facts in the case, the plaintiff was not entitled to judgment for one-half of the land, and possession of the whole of it." The third assignment is as follows: "The judgment of the court, from the facts proved and found by the court, ought to have been for the defendant." The fourth assignment of error is as follows: "The court's conclusion of law, wherein it is said: `I conclude that plaintiff, who sues for himself and co-tenant, * * * when the petition does not show that any claim is set up by J. C. Hodges for his co-tenants, nor are they made parties to the suit, nor do they claim anything.'" "The appellant or plaintiff in error shall in all cases file with the clerk of the court below an assignment of errors, distinctly specifying the grounds on which he relies before he takes the transcript of the record from the clerk's office, and a copy of such assignment of errors shall be attached to and form a part of the record; and all errors not so distinctly specified shall be considered by the supreme court or court of appeals as waived." Rev. St. art. 1037. A ground of...