With an exception to be noted and a supplement to be made, the case is' properly and sufficiently stated in the opinions of the Court of Civil Appeals. 294
5. W. 1115. Thе exception is that Davis did not bring suit “in trespass to try title.” The supplement is that Mrs. Davis did not file a pleading of any kind and Mr. Davis did not file anything except his original petition, although Dalton by proper cross-action sued Davis and wife-in statutory trespass to try title.
The suit of Davis was to cancеl the sheriff’s deed and remove the cloud thereof. Sinсe ordinarily courts do not entertain jurisdiction of moоt cases, a claim of interest of some kind in the land was manifestly a prerequisite to relief in that suit. But there is pаtent mistake in the assumption that fee simple or otherwise incontestable title in Davis was essential to the rеlief prayed by him. Obviously, therefore, the possibility of title or right in-Dalton, independent of the sheriff’s deed, is not foreclosed by its cancellation. 38 Cyc. 1194-1196.
Ownership in fee simple, however, was averred by Dalton. Answer (“plea of not guilty” or otherwise) was not made by Mrs. Davis at all or by Mr. Davis except as his petition would be taken therefor. As the pleading stood, then, but a part of Dalton’s essential averments were answered by one defendant therein and none of them by the other. As remarked, Dalton might have titlе or right independent of the sheriff’s deed, and hence outside the scope of Davis’ pleading. It results: (a) Dalton’s cross-action advanced a perfect defense to Davis’ claim and more, but Davis’ petition (considered as an answer) presented but a partial and imperfect defense to the cross-action; (b) thе other defendant in the cross-action pleadеd no defense at all.
The state of the evidence is not important, for whatever was proved the judgment was required to “conform to the pleadings” (article 2211, R. g. 1925), аnd, to the extent of variance therefrom, the error is not cured by evidence. The judgment before us lacks that essential, and the vice permeates the wholе.
We have not considered whether the case might hаve been tried at all with the pleading in the condition dеscribed and with Dalton absent. A trial was attempted; if rightly attempted, the statutory requirement of conformity ought to have been observed; if wrongly attempted, the error is but multiрlied.
We recommend that the judgments of- the district court аnd the Court of Civil Appeals be reversed, and that the cause be remanded.
Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals.
We approve -the holding of the Cоmmission of Appeals on the questions discussed in its opinion.