8 Tex. 222 | Tex. | 1852
Regarded as a suit to recover the value of the hire of the negroes and of the horse claimed in the petition, it is evident this action was 'barred by the statute. The primary object of the suit doubtless was to obtain tlie cancelation of the mortgage, as constituting a cloud upon the plaintiff’s title. It was only in this aspect that the action was maintainable. But this object appears to have been abandoned or lost sight of in the subsequent conduct of the cause. And indeed there does not appear to have been any occasion for the institution of the suit with a view simply to the cancelation of the mortgage. The defendant disclaimed its possession and pleaded the statute of limitations, and sought to terminate the controversy by dismissing the suit, lie does not appear to have intended or sought to enforce the mortgage or to assert any rights under it until the plaintiff persisted in his suit for the recovery of hire, &c.
He then opposed to the money demand of the plaintiff the amount claimed to be due on the mortgage. But after verdict he relinquished this claim, thus manifesting no purpose "or pretensiou of asserting any right to the x>roperty under the mortgage.
There is nothing in the facts of the ease which seems to have required the institution of this' suit for the mere purpose of obtaining a cancelation of the .mortgage. But if there was any ground for instituting the suit at the time none" is perceived for protracting the controversy now. It would be useless to decree a cancelation of the mortgage when the debt it was given to secure is, by the judgment of the court, extinguished. Besides, by his amendment to his petition and his subsequent conduct of the cause, the plaintiff abandoned this, in any view, the only tenable ground of his action.
The verdict of the. jury found a small amount still due upon the mortgage after deducting what under the evidence they seem to have regarded as reasonable hire for the negroes, and upon the merits (which in the view we have
Judgment affirmed.
