16 Tex. 399 | Tex. | 1856
The appellant, who was plaintiff in the Court below, sets out in his petition, that, previous to the Declaration of Independence by Texas, Power & Hewitson had received from the sovereign authority of Coahuila and Texas, and also of the Supreme Government of Mexico, an Empresario grant of land, lying between the Lavaca and Nueces rivers, in the now State of Texas, and embracing about thirty leagues of land, lying in the counties of Calhoun, San Patricio and Refugio, and known and called as Hewitson & Power’s colony ; that the said Hewitson and Power complied with the conditions of the said Empresario grant, so as to entitle them to a conveyanóe of what were called indemnification and premium grants* and which said compliance with the said Empres
I have stated so much of the petition as I regarded as material in the discussion of this case.
After citation to appear and answer had been served upon the defendant, the record discloses, that the defendant, by leave of the Court, entered his appearance in the case, and filed his petition to the Court, stating that he was a citizen of the State of Maryland, and that the plaintiff was a citizen of Texas, and that the matter in controversy exceeded five hundred dollars ; praying to have the case transferred to the United States District Court, and offering to give bond and security, to have the transcript filed in the said District Court at its next Term, agreeably to the Act of Congress ; which petition was supported by an affidavit of its truth.
In discussing the question of the correctness of the decision of the Court below, in arresting the judgment, in this case, we are confined to the record of the plaintiff's petition alone, as much so as if that petition was presented for adjudication, by a demurrer. If the facts stated would have authorized the finding of the verdict, by the jury, the judgment ought to have been awarded on their finding. If, on the other hand, the petition has not, by its structure, laid the foundation for testimony to have sustained the verdict, it was properly overruled. A motion in arrest of judgment is not tried by the evidence actually received, but by the law, applied to the record.
The whole frame of the petition seems to have been limited to two objects, the one acting in rem and claiming a share of the land under the contract between petitioner and Power, for which he claims the one eighth, and seeks to have it decreed to Mm from League, the vendee from Power. The second is compensation in damages for his share of the land alleged to have been lost by the running of the statute of limitations in favor of those settlers against whom the petitioner had instituted suits, which suits were afterwards dismissed by League, the defendant, and for this he claims 'damages to the amount
The first part of the petition sets up no claim for compensation in damages, but it claims a specific performance of a contract for the one eighth of certain lands, under a contract with Power; and he avers performance on his part, until prevented by League, the vendee of Power ; and, take the facts stated as true, a cy pres performance was made out. The object is to recover the land; and he seeks a conveyance from League, because he charges League with notice of his contract with Power, at the time and before he, League, received the com veyance of the fee' from Power. He makes no pretence of charging damages for the value of these lands, only in the event which is to be set up by a supplemental petition, and if the facts are true, there would be no more obstacle in his procuring a decree, on this part of his petition, m rem, for the specific land sued for, than there would have been, in sustaining a claim for damages. And to permit him, after so framing his petition, to claim damages, contrary to the specific relief prayed, under his general prayer for relief, would operate as a surprise to the other party ; as no one would believe, from the structure of this part of the petition, that damages would be the object sought. And damages would not be consistent with the facts stated in the petition, for a specific conveyance. Relief is sometimes allowed, different from the relief prayed, under the general prayer for relief; but the relief granted in such cases, must be consistent with the objects of the petition. And such different relief is never allowed, where it was ealeu
But if the petitioner had asked compensation by way of damages, it may be well questioned, under the vague and uncertain description of the land, as lying in the counties of Calhoun, San Patricio and Refugio, whether any evidence could have been received to prove the value of any land so vaguely described.
The second part of the petition is subject to the same objection ; where the plaintiff alleges, that he had brought a large number of suits against the settlers, which suits had been dismissed by the defendant, and thereby the statute of limitations
There is no rule that has been so stringently enforced in this Court, as the rule, that the allegata must be broad enough to let in the proof, and that no evidence, not supported by the allegata, can sustain a verdict. This rule has been always considered as essential to our system of jurisprudence, and giving harmony to the system. It was commented on and enforced in the case of Mims v. Mitchell, (1 Tex. R. 443,) and in Hall & Jones v. Jackson, and in fact by a train of decisions, without ever having been relaxed in a single instance. The whole petition is so indefinite, that it would be difficult to sustain a decree in favor of the plaintiff, on any part of it. k . There is one more objection to the petition, that, to my mind, is well taken ; that is, to a want of proper parties. We have uniformly held, that all the parties in interest, to be affected in any way by the decree or judgment sought to be obtained, if known, ought to be made parties, defendants or plaintiffs, in the suit; and in the case of Hall, Ex’r v. Holland and others, decided at the present Term, the question of proper parties to a suit was discussed, and the conflict of authority on the distinction between those who might be, and those who were necessary parties, was noticed; and we came to the conclusion, that, subject to some exceptions, all who had an interest, and who could in any way be affected by the judgment or decree, were necessary parties. And in that case we af
On the grounds noticed the judgment is affirmed.
Judgment affirmed.
Wheeler, J., gave no opinion in this case.