Mickie v. McGehee , 27 Tex. 134 ( 1863 )

Bell, J.

We are of opinion that the court below did not err in overruling the exception taken by the counsel for the defendants to the jurisdiction of the court. The plaintiff below was entitled to maintain the action in the county of his own residence; and we do not think the rule should be varied because he sought to recover his damages out of a particular fund or sum of money due by some person residing in another county. (See Butterworth v. Kinsey, 14 Tex., 495.) But we are of opinion that the court below erred in the instructions given to the jury at the request of the plaintiff’s counsel, in respect to the plaintiff’s right to recover damages. The case was not one, in its nature, for exemplary damages. It is true that a mortgagor, on the payment of the debt, is entitled to the release of the mortgage; but if he be driven to his action to compel the execution of a release, or to obtain a decree canceling the mortgage deed, he is not entitled to recover punitory damages from the other party, unless, indeed, a case of very special circumstances were shown, which might form an exception to the general rule. In the present case, the plaintiff below had the possession and use of the mortgaged property, and is not shown to have been in any way damaged by the refusal of the defendants to execute a release of the mortgage. By reason of his prayer for general relief, he was entitled to a decree canceling the mortgage deed, or requiring the defendants to execute a release of the mortgage, and to his costs, and he was entitled to nothing more. (See the cases of Neill v. Flack, 22 Tex., and Bracken v. Neill, 15 Tex., 109.)

The judgment is reversed and the cause remanded.

Reversed and remanded.