18 Tex. 233 | Tex. | 1856
The plaintiffs filed their petition on the 6th of September, 1852, alleging that they are the owners of a certain tract of land, which they described ; charging the defendant with a continuing trespass, and' with using and enjoying the rents and profits, to their damage, &c. ; and asking that they have judgment against him “ for the recovery of the aforesaid lands, together with costs and damages.” They omitted to indorse on the petition, that the action is brought as well to try title as for damages.
At the Spring Term, 1853, the defendant answered by a general demurrer, a general denial, and “ not guilty f and he at the same time pleaded specially, setting up title in himself to the land, claiming to hold under a tax title ; pleaded the
It cannot admit of a question, that the ruling of the Court was correct. The object of prescribing this indorsement to be made upon the petition was to notify the defendant of the nature of the action. The petition in this case placed that beyond doubt. The defendant appeared and answered to the suit as an action to try title ; and by his special answer made it such, if it had not been before. The answer dispensed with the necessity of the indorsement; and the amending of the petition afterwards was a useless formality. After the parties had litigated the question of title from Term to Term, for years, the Court might well have declined to hear this objection raised then for the first time. We have had occasion to consider the effect of this omission, and the time and manner of taking advantage of it, in previous cases. (Bone v. Walters, 14 Tex. R. 564; Shannon v. Taylor, 16 Id. 413.)
The defendant, by his answer, had put the title in issue, and this dispensed with the necessity of the indorsement. But if
Judgment affirmed.