65 Tex. 528 | Tex. | 1886
The evidence was amply sufficient to sustain the judgment. The note introduced in evidence, signed by the defendants, stated that it was given for a tract of one hundred acres of land that day conveyed to Matilda W. Whitworth. A deed was then introduced, bearing even date with the note, conveying to Matilda W. Whitworth the land described in the exhibit to the petition, consisting of one hundred acres, and reciting that a note for the same amount, and maturing at the same time with the
The second assignment complains that the.evidence did not sustain the allegations of the petition. A copy of the note was made an exhibit to the petition, and the introduction of the original proved the declaration for debt. The material allegation entitling the plaintiff" to a decree of foreclosure was that the note was part of the consideration for the sale of the land. The proof certainly sustained this allegation.
But, under this assignment, it is claimed that there was a variance > between the allegation and the proof. It was stated in the petition: that the land for which the note was given was sold to the defendants —the proof was that the land was conveyed to Matilda W. Whitworth. This proof was admitted without objection. The defendants were notified in the petition to produce the deed made to them or either of them. One of the defendants was Mattie W. Whitworth. The conveyance was to Matilda W. Whitworth. Matty is one of the diminutives of the name Matilda. (See Webster’s Dic., Eng. Christian Names.)
That the deed was made to one of the defendants does not prove the land was not sold to both. That it was sold to both is an averment not proved, but not contradicted by the evidence. It was not. necessary to prove that averment, because the lien would exist if the note was for part of the purchase money, no matter who is the purchaser or vendee. Enough of the allegations were proved to sustain the decree for the debt and foreclosure of the lien; and the proof, whilst it failed to establish some averments not necessary to make out the case, and did establish some facts not averred, did nót show a dif- ' ferent cause of suit from that pleaded. The judgment is affirmed.
Affirmed.
[Opinion delivered February 23, 1886.]