Castleman v. Sherry , 46 Tex. 228 ( 1876 )

Roberts, Chief Justice.

The petition of Castleman, as plaintiff, stated that lie had sold the land for which he claimed a title and recovery of possession from defendant, to Goodman, for whose use he sued, and still he did not make Goodman a party to the suit, either as plaintiff or as defendant, by the allegations or prayer of his petition. His prayer was for a decree passing title ’ to Castleman or Goodman. The amended petition prayed for the further relief that the plaintiff' might be invested 'witji the title to the land, and the awarding a writ of possession to place the plaintiff in possession, but did not withdraw the allegation of disclaimer of title in himself.

The defendant did not except to this petition, but answered by a general denial, and by a special plea, which in substance amounted to a denial. Under such an issue, the petition not being excepted to, the court had no opportunity to pass upon the legality of such a suit- in such a form.

The cause having been tried upon the issues of fact made by the parties themselves, the court held, as shown in the charge, that as Castleman had alleged title in Goodman by Ms (Castleman’s) sale to Mm, the right of Goodman to the land must be established by proof, other than the declaration of use to Mm in the petition, before a recovery could be had in this suit. Admitting that such a suit so brought could be maintained, for which no precedent is shown to ns, the charge seems to be quite reasonable and proper; for, if Castleman could bring a suit for title to land for the use of Goodman, it must be on the theory that Goodman was substantially the owner of it, as he had in effect alleged in his petition. Under this view of the case, the court charged the jury, at the request of' plaintiff, that if it was shown that Castleman had acquired the title from Sherry, and Goodman from Castle-man,-they should find for the plaintiff".

It is evident that the court conformed Ms charge, as nearly as he consistently could, to the case'set up in the pleadings of the plaintiff.

The evidence upon the issues made by the parties was conflicting, to some extent, in reference to the completion of the verbal contract of sale, and it was not proved that Goodman had paid for the land.

There is therefore no ground for disturbing the verdict of the jury.

As to the objection to the impaneling a jury without the jury fee being paid, it may be answered, that at the time of the trial, the Legislature had not regulated that subject, as contemplated by the Constitution, before it could be practically put in operation. (Const. 1876, sec. 10, art. V; Jury Law, Genl. Laws, 1876, Aug., 1876, sec. 17 page 81.)

The exceptions to a part of the statement of facts, made at a former trial, as evidence, were properly ruled on by the court. It was not shown that they were signed by the party so as to stand on the footing of admissions in writing, and were properly excluded by the court.

Judgment affirmed.

Affirmed.