| Tex. | Jul 1, 1878
Unquestionably, the land which is the subject-matter of this suit is a part of the tract for which E. G. Sevier and wife, from whom appellees deraign their title, brought the suit upon which the appellants rely to maintain their defense of res adjudicata. But an inspection of the record of that suit shows, beyond question, that the claim of Sevier and wife to the land for which appellees sue was not adjudicated against them.
Although the defendants pleaded not guilty, yet, by their special pleas, they limited the issues to be adjudicated (Rivers v. Foote, 11 Tex., 662" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/rivers-v-foote-4887967?utm_source=webapp" opinion_id="4887967">11 Tex., 662) to the right of Peter Teal to one-half of the land granted to John B. Sideck, September 18, 1830,
We see no good reason why a judgment might not have been rendered in favor of the plaintiffs for the land sued for, not included within the limits of the league to which the defendants’ claim under the donation to Teal, can be regarded as referring, subsequent to the decision of this court to which we have referred. But if this land was not expressly adjudged to the plaintiffs, there can be no pretense that judgment was, or could have been, rendered for it in favor of the defendants on the pleading and verdict. While it is not controverted, that, as a general principle, the judgment or decree of a court of competent jurisdiction is not only final as to the matters actually determined thereby, but also upon all matters properly involved in the issue passed upon and determined by the court; and that all matters put in litigation in a previous suit, and which could have been adjudicated therein, are concluded by it. (Foster v. Wells, 4 Tex., 101; La Guen v. Gouverneur, 1 Johns. Cas., 992.) But certainly it cannot be so held, where the record clearly shows that the matter in question was not in fact passed upon or adjudicated by the court; and this, too, when it could not, under the pleading and verdict, have been decided adversely to the
The objections to the deed from E. GL Sevier, as administrator of his deceased wife, Louisa Sevier, to Peticolas, should have been sustained. No authority was shown in the administrator to make this deed, or to bind the estate of his intestate to pay an attorney, for services rendered the estate, in lands. To concede to administrators such power, would virtually surrender to them the unrestricted management and disposal of the entire property of the estates they represent. The decree of the District Court gave to this deed no additional force. There was no case or parties before the court to authorize or warrant such a decree.
The deed from Peticolas to Terrell was made subsequent to the institution of the suit, and, if objected to on this ground, should have been excluded, (24 Tex., 208,) even if the deed from Sevier to him had been unobjectionable.
There is also, in my opinion, an error, not discussed by counsel or distinctly presented by the assignment of errors, but going to the foundation of the judgment, which would require its reversal, and to which, in remanding the case to the District Court, it is proper to call the attention of the parties. The plaintiffs, in their petition, claim to be joint owners of the land sued for; and they have, by the judgment, jointly recovered. But the evidence shows several titles for some of the tracts, making the aggregate described in the petition and judgment. The testimony relied upon by the plaintiffs does not, therefore, prove the title alleged in their petition, or support the judgment.
The judgment is reversed and the cause remanded.
Reversed and remanded.