Bledsoe v. Wills

| Tex. | Jul 1, 1859

Roberts, J.

The verdict in this case, will not sustain the judgment foreclosing the mortgage, because there is an entire omission to find anything in relation to the mortgage. (See May v. Taylor, supra 348.) The judgment of the court must correspond with, and be only the legal result of, the facts found in the verdict.

Another question is presented, upon the special exception of Bledsoe, that “ the note, upon which said suit purports to be “founded, is not sufficiently described and set forth in said petition, nor is the same attached as a part thereof.” The pleader has not attempted to set out the note in lime verha, nor to give its legal tenor, but has merely given a conversational description of it; as, that defendant below, on a certain day, executed a note to Robinson, for two hundred dollars, payable at a particular time, bearing ten per cent, interest, which note has been assigned to the plaintiff below by said Robinson; and it is alleged that the note and assignment will be produced on the trial.

The promise to pay, which is the gist of the action, is not alleged, otherwise than as it is inferentially involved in the allegation that defendant “executed a note.”

This is an instrument in writing, upon which the suit is founded, and the defendant below is not allowed to dispute its existence, except by a plea, under oath. It should be set out by its tenor, or in hoec verla, or made part of the petition, and not by a loose general conversational description, so that the court, as well as the opposite party, should be able to know exactly its character. And though this mode of pleading may be tolerated upon general exception, when a special exception is taken to it, and the defect pointed out and complained of, the court should discourage it, by enforcing the correct rule upon the subject. We think this special exception should have been sustained.

The description of the mortgage is alike defective, in not giving its tenor, or otherwise setting it out, to be judged of by the court. The mere allegation, that a defendant executed a mortgage to secure a note, can convey no definite idea as to the terms and conditions upon which the conveyance is made, otherwise than upon inference and supposition. This, however, is not specially excepted to in this case, and need not therefore be further discussed.

Eor both of the errors referred to, we are of opinion that the judgment must be reversed, and the cause remanded.

Reversed and remanded.