70 Tex. 209 | Tex. | 1888
Plaintiffs (appellants) sued in trespass fra) try title to recover of defendants the south half of the John) D. Johnson league. Defendants disclaimed all the land sued' for except such part thereof as might upon survey be mdodedE) in the tracts claimed by them, which were described in. their1' answers by metes and bounds. As to the land claimed frEua^ pleaded not guilty, and one of the. defendants, Amos Richard) son, filed affidavit impeaching as a forgery the deed from. John) D. Johnson to E. O. Legrand, dated the fourth day of Eovern^1 her, 1844, under which plaintiffs deraigned title. The trial) judge found as a fact that the deed was a forgery and rendered a general judgment that plaintiffs take nothing by this, suit and that defendants go hence without day and recover their costs. The plaintiffs complain that by such judgment a, recovery was decreed in favor of defendants for all the land sued for whether embraced in their field notes or not.
After the disclaimer there was no issue between the parties^ as to the land disclaimed. The disclaimer conceded the title ■to such part to be in plaintiffs, and there was nothing to try as to that. The effect of the disclaimer was to limit the right of)
The court upon sufficient evidence found the deed was a forgery. We see no reason why we should disturb the finding. We therefore conclude the court below should have given judgment for defendants for the land respectively claimed by them and described in their answers, and in favor of plaintiffs for the residue of the land sued for and described in the petition; and finding the plaintiffs could have had the judgment so entered by applying to the lower court, without appeal, they, the plaintiffs, should pay the costs of this appeal and of the lower court. The judgment should be reformed and rendered in accordance with the above conclusions.
Beformed and rendered.