Musquis v. Blake , 24 Tex. 461 ( 1859 )

Wheeler, C. J.

We are of opinion, that the court erred in overruling the plaintiff’s exceptions to the defendants’ amended answer. The question here presented, was examined and decided in the case of Kilpatrick v. Sisneros, (23 Texas Rep. 113,) at our last session at Galveston, adversely to the grounds taken by the appellee in this case. A re-examination of the subject here, is therefore unnecessary. The revolution did not divest or impair the plaintiff’s right of property in the land, which had been granted to him; nor did his removal to Mexico incapacitate him to maintain this action for its recovery.

The first instruction given at the instance of the defendants, is likewise erroneous. It denies the plaintiff’s right to maintain the action upon the same ground upon which the court overruled the exceptions to the plea.

It is insisted for the appellees, that these erroneous rulings do not require a reversal of the judgment, for that the facts of the case bring it within the principle of the decision of this court, in the case of Guilbeau v. Mays, 15 Texas Rep. 410; and upon the authority of that case, the defendants were entitled to the judgment which was rendered, notwithstanding the errors in the ruling and’ charge of the court.

But it must be observed, in the first place, that the ruling of the court upon the plea, made it manifest to the plaintiffs, that according to the opinion of the court, they must fail in their action, on account of the supposed alienage and incapacity of the plaintiff to' sue, whatever evidence they might have it in their power to produce, touching the registry of their grant, or notice of it to the subsequent grantee. They may-have been deterred by this ruling, from producing all the evidence they would otherwise have produced upon that branch of the case, seeing that it would be of no avail. Moreover, the charge of the court went farther than the decision in Gruilbeau v. Mays warranted, in holding, (in the 5th instruction,) that the want of registration in the county, was suEcient of itself to postpone the plaintiff’s grant to the subsequent location and survey of the defendants. This is contrary to Gruilbeau v. Mays, and also to the case of Byrne v. Fagan, since decided. (16 Texas Rep. 391.)

There can be little doubt that these rulings controlled the verdict of the jury, and that they were thereby prevented from passing upon or considering the evidence, upon which it is now insisted the defendants were entitled to a verdict and judgment in their favor. Under these circumstances, we think it would be going too far to aErm the judgment, upon evidence here relied on for an aErmance, when its decision below appears to have been controlled by rulings of the court, which we deem to have been erroneous.

As the evidence upon another trial may be different, it is unnecessary to decide how far the evidence upon the former trial should be held to bring the case within the decision in Gruilbeau v. Mays. We are of opinion, that the judgment he reversed, and the cause remanded for a new trial.

Reversed a,nd remanded.