61 Tex. Civ. App. 9 | Tex. App. | 1910
Lead Opinion
— Appellant sold to appellee a tract of 138% acres of land, same being a part of the J. Hopkins survey in Bowie County. As payment in part for the land appellee executed and delivered to appellant certain promissory notes, the payment of which was secured by a vendor’s "lien expressly retained by appellant on the land. In a suit brought by him on the notes appellant recovered a judgment against appellee foreclosing the vendor’s lien on land described as a tract of 138% acres of the Hopkins survey, beginning at the northeast corner of the Pickens 112 bi-acre tract out of said Hopkins survey, and running thence north 475 varas to a corner on the south boundary line of lot No. 20 of a subdivision made of said Hopkins survey; thence east 1,662 varas to the east boundary line of said Hopkins survey; thence south with said line, etc. An order directing the sale of .the land described in the judgment was issued, and at the sale subsequently made by the sheriff, as directed by the writ, appellant became the purchaser thereof. Only a part of the tract sold by appellant to appellee was included within the boundaries of the tract described in the judgment and in the order of sale issued thereon. On the part not so included appellee lived with his family. After the purchase by appellant at the sheriff’s sale of the land described in the judgment, a writ describing the land as the judgment described
After stating the case as above. — Our statute denounces as guilty of a “forcible entry” any person who “shall make an entry into any lands, tenements or other real property, except in cases where entry is given by law, or shall make any such entry by force.” Sayles’ Stats., art. 2519. It defines a “forcible entry, or an entry where entry is not given by law,” as “an entry without the consent of the person having the actual possession.” Sayles’ Stats., art. 2520. It was not disputed that at the time he was ejected therefrom appellee was in actual peaceable possession of the premises in question. It was not disputed that he was ejected therefrom without his consent and over his protest. On the contrary, it appeared, without dispute that, when appellant and the officer entered upon the premises and demanded of appellee that he vacate same and deliver the possession thereof to appellant, appellee refused to do so, and that thereupon the officer “went into his (appellee’s) residence and loaded his household goods and all of his personal effects into wagons and hauled them off of said premises, and unloaded them in the woods on the side of the public road, and left them there.” It so appearing that appellee was in actual possession of the premises, and that he was forcibly ejected therefrom by appellant, who, the record shows, at once took and retained possession of same, we think it is clear that appellee was entitled to resort to the statutory action of forcible entry and detainer to recover possession of the premises, and, having resorted to same, to a judgment restoring him to the possession thereof. Assuming that the entry made by appellant on the premises was under “color of lawful authority,” appellant insists that the action was not maintainable. The assumption made, we think, is not warranted by the record. A writ directing an officer to place a party in possession of specified land is not “color of authority” for placing the party in possession of other and different land. The writ in the officer’s hands here was not like the one in the hands of the officer in Wyatt v. Monroe, 27 Texas, 269, cited by appellant as supporting his contention. There the writ covered the premises in dispute, and the contention made was, it seems, that it had been wrongfully issued. It was held, and properly so, we think, to be color of authority for the acts of the officer. On its face, evidently, it had the appearance or semblance of being a valid writ directing the officer to place the party in possession of the premises in controversy. Such was not the character of
Affirmed.
Rehearing
ON MOTION FOB BEHEABING.
— The identity of the premises from which appellee was ejected with the premises described in the writ by virtue of which he was dispossessed was a question of fact to be determined by the trial court. He found that the writ “did not call for the land” from which appellee was ejected. We were of the opinion that the finding was not without support in testimony in the record, and therefore that it was binding .upon us. If that finding was not without support in the evidence, the disposition made by us of the
We think it is clear that, in the condition of the record’ as stated, it should not be said that the finding, of the trial court was without evidence to support it. It is not clear that, with such testimony before him, - and in the absence of testimony showing the existence at the Northeast corner of the 112%-acre tract of trees answering to the description of those called for at the beginning corner of the tract in controversy, and in the -absence of testimony showing said 112%-acre tract at the time the judgment in the foreclosure suit was rendered to have been known as the S. D. Pickens 112%-acre tract, a contrary finding by the court would have been authorized by the evidence.
The objection to the judgment, made for the first time in the motion now being considered, that the description in appellee’s complaint of the premises in controversy was insufficient, if meritorious, which we do not concede it to be, comes too late. It should have been made, in the first instance, by an exception to complaint urged in the trial court, where, had it been found to be well taken, the complaint could have been amended. Notwithstanding the ruling to the contrary by the Commission of Appeals in Ochoa v. Garza, 1 W. & W., sec. 939, we think such a defect in such a complaint can be cured by an amendment. Evetts v. Johns, 76 S. W., 778; Bibby v. Thomas, 131 Ala., 350, 31 So., 432; Schuster v. Gray, 8 Kan. App., 222, 55-Pac., 489; 9 Ency. Plead, and Prac., p. 67.