Hanrick v. Hanrick , 1884 Tex. LEXIS 323 ( 1884 )

Watts, J. Com. App.

Ho new cause of action was asserted by the amended petition filed January 3, 1883. . It was alleged in the original petition that O’Brien and wife fraudulently claimed an interest in the land, but, in truth, they have no interest whatever. By the amended petition the character of the pretended claim asserted by O’Brien and wife was fully alleged. This was but an amplification of the previous allegations as to their pretended claim of an interest in the subject-matter of the suit. Jones v. George, 56 Tex., 152.

So far as the appellant was concerned, the fact that by the amendment other persons claiming under O’Brien and wife were made parties defendant, did not change the character of the suit. And in Thouvenin v. Lee, 26 Tex., 614, it was remarked that •“ the statute only operates as a bar when it is sought, under the name of an amendment, to prevent a new suit.”

The cause of action, as asserted against appellant, was in no way affected, altered or changed by the amendment. Service of the amended petition upon appellant was not necessary. In our opinion the exceptions to the amendment upon that ground were properly overruled.

There was no such misjoinder of causes of action and parties defendant in this case as would have authorized the court below in sustaining an exception to the petition on that ground. Under our liberal system of procedure, the plaintiff has the right to assert in the same suit' either or both legal and equitable grounds for the recovery.

While the allegations showed that the legal title to their interest in the land was in others, it was clearly shown that the plaintiffs were the equitable owners, and that the legal title was held in trust for them. And there is nothing that inhibits the court from granting full relief, under such circumstances, in the same suit.

All the questions sought to be presented by the fourth, fifth, sixth and seventh assignments of error have been considered and settled in another case between the same parties, and it is not necessary again to pass upon them here. Appellees and those through whom they claim did take by descent from Edward Hanrick, deceased, a defeasible title, which was rendered indefeasible by operation of law. Hanrick v. Hanrick, 54 Tex., 101; and the same case again decided at the present term.

The eighth assignment is not sustained by the record. Appellant first took possession of the land in 1872, and this suit was commenced in 1878, so that the requisite adverse possession necessary to sustain the defense of ten years’ limitation was not shown.

There is nothing in the other assigned errors relied upon that has not already been disposed of under the assignments which have heretofore been considered.

Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.

Affirmed.

[Opinion adopted June 3, 1884.] ^*

* The record in this case was not obtained in time to publish the opinion in 62 Texas.