Taylor v. Carter, Case No. 1775

Case No. 1775 | Tex. | Nov 28, 1884

West, Associate Justice.

A number of errors were assigned,, but at the last all of them are abandoned or waived except those bringing in question the correctness of the final decree, by reason of an alleged material variance between the locus in quo, as set out in the pleadings of defendant in error, and as described in the final decree of foreclosure.

We have given very careful consideration to this ground of error, and are of the opinion that the variance is not so material as to require either the reversal or the reformation of the judgment. The third line of the survey is given in the pleadings as one hundred and forty varas in length; in the judgment the distance is called one hundred varas, but both of them call for the same point or corner, and that a well known corner.

[Opinion delivered November 28, 1884.]

Another line of the tract in the pleadings is said to be seven hundred and three varas in length; in the decree it is said to be seven hundred and eighty-three varas long. Both lines, however, call to terminate at the same corner, and that a well known and permanently established corner.

There is no difference in the views herein expressed and those contained in Throckmorton v. Davenport, 55 Tex., 236" court="Tex." date_filed="1881-05-10" href="https://app.midpage.ai/document/throckmorton-v-davenport-4893588?utm_source=webapp" opinion_id="4893588">55 Tex., 236.

In the last named case the variance between the pleadings and the final judgment was very material indeed. In fact, the judgment described a different tract of land, and located it in a different place from that described in the pleadings. Such is not the case here. The judgment of the district court is affirmed.

Affirmed.