Davis v. Turner , 26 Tex. 98 ( 1861 )

Wheeler, C. J.

It may be doubtful whether the instrument of the 25th of December, 1845, under which the plaintiff claims, expresses on its face a valuable consideration. The money consideration of one dollar was probably only nominal, and inserted under the supposition that it was necessary to name a money consideration in order to give validity to the instrument. It does not appear in what the “ kindness” mentioned as a consideration consisted. It may have consisted of services which were of a pecuniary value. It is averred in the petition that it was an “ ample and full consideration” “ paid” by the plaintiff. The allegation might have been more specific, if its sufficiency had been questioned by exception. Rut it was not, and, in the absence of a statement of facts, it would be going too far to say there was not evidence admitted under the averment that a valuable consideration did in fact pass, sufficient to support the agreement. It is averred, moreover, that the defendant went into possession under the instrument, and has ever since continued in the actual possession. What the proof was under this allegation, we are not informed. Rut if the possession consisted in an actual residence on-the land for the period of nearly ten years, which elapsed from the date of the instrument to the bringing of the suit and the making" of permanent improvements involving an expenditure greatly exceeding the value of the use, it would seem that it should go far to> support the right of the plaintiff, though the consideration which passed at the time of making the instrument were of doubtful adequacy. In the absence of a statement of facts, every thing must be1 taken to have been proved which could legally have been proven under the allegations; and we are not prepared to say the plaintiff might not have made out a case in evidence sufficient to entitle* him to the judgment rendered in his favor. It is, therefore, affirmed.

Judgment affirmed.-