Medlin v. Wilkens , 1 Tex. Civ. App. 465 ( 1892 )

FISHER, Chief Justice.

July 18,1868, appellants sued the appellees in trespass to try title. September 3,1888, the appellants amended their petition, upon which the case was tried.

The amended petition described the land sued for as “ One suerte of land in the city of San Antonio, Bexar County, Texas, known as the Maria Gertrudes de Torres suerte, bounded on the north by Thomas Martinez suerte, west by the Acequia Madre, south by the Fuentes suerte, and east by what was known at the time of the original grant as vacant land, and having a front of about 120 varas on said Acequia Madre, and running back 440 varas to said vacant lands, and being fully described in the plat made by G-. Friesleben, and made a part of the report of C. Hart-nett, surveyor herein; said property having been, without consent of petitioners, subdivided into lots and streets and alleys, as shown by said plat, as follows: Lots 1, 2, 3, 4, 5, 6, 7, 8, between Water Street on the west and Second Street on the east, bounded south by North Street and north by the north line of the suerte; lots 1, 2, 3, 4, 5, 6, 7, 8, bounded west by Second Street, south by North Street, east by Third Street, and north by the north line of suerte; lots 1, 2, 3, 4, bounded west by Third Street, south by North Street, east by east line of suerte, and north by north line of the suerte; lots 16, 15, 14, 13, 12, 11, 10, 9, bounded west by Water Street, south by an alley, east by Second Street, and north by North Street; lots 22, 21, 20, 19, 18, 17, 16,15, bounded west by Second Street, south by alley, east by Third Street, north by North Street; lots 14, 13, 12, bounded west by Third Street, south by alley, east by east boundary line of this suerte, and north by North Street; and also a tier of fractional lots, bounded' west by Water Street, south by said Fuentes suerte, and east by east line of this suerte, and north by said alley; said tier of fractional lots crossing Second and Third streets. Said lots and streets comprising said Maria Gertrudes Torres suerte.”

The petition also alleged that plaintiffs and defendants claimed the land from Philip Dimmitt as common source.

Defendants plead not guilty, and the three, five, and ten years statutes of limitations; also deny that they are in possession of the land described in plaintiffs’ petition as the Maria Gertrudes de Torres suerte, and allege that they are in possession of the Ramon de la Fuentes suerte, of which the land sued for is a part; deny any title of plaintiffs in the land, and say that Philip Dimmitt is not common source.

The plaintiffs, in replication to the pleas of limitations, plead minority and coverture.

Verdict and judgment were rendered in favor of defendants.

Findings of Fact. — 1. That the plaintiffs are the heirs at law of Philip Dimmitt and his wife. Philip Dimmitt died in 1841, and his wife in 1855.

2. From admission made at a former trial of this case and from recitals in deeds, it is evident that the Torres suerte and the Fuentes suerte formerly belonged to Philip Dimmitt.

3. No written conveyance was shown by defendants, passing title out of Philip Dimmitt and wife.

4. From the entire range of facts, the evidence is not sufficient to entitle the defendants to recover and hold all of the land by limitation.

5. The plaintiffs failed to show by evidence that the defendants were in possession of the Torres suerte, the land sued for; but, upon the contrary, the evidence in the record shows that these defendants and Beck, under whom they claim, asserted title to the Fuentes suerte, and that they were in possession of land within the boundaries of said suerte, and not in possession or claiming land within the Torres suerte.

Delivered November 16, 1892.

This being an ordinary action of trespass to try title, and the plaintiffs claiming title to the Maria Gertrudes de Torres suerte, and alleging a trespass by defendants upon that survey, and the defendants having denied that they were in possession of that suerte, but were in possession of the Fuentes suerte, the burden was upon the plaintiffs to prove that defendants were in possession of the land sued for and described in their petition. Having failed to do this, but, upon the contrary, the evidence showing that the defendants were within .the bounds of the Fuentes suerte, and not within the limits of the Torres suerte, the plaintiffs were not entitled to recover.

The fact that Philip Dimmitt was formerly the o.wner of the Torres and Fuentes suertes, and may be regarded as the common source of title, would not relieve the plaintiffs from proving possession by defendants of the land sued for and described in their petition, when such possession is expressly denied.

Plaintiffs will not be permitted to sue for one tract of land and recover another not described and mentioned in their petition.

The evidence of witness Semlieges, as complained of in appellants’’ third assignment of error, was admissible, not upon the ground that plaintiffs were bound by the testimony of the deceased witness Paschal as given on the former trial, but upon the ground that Paschal’s statement as to what was said and done by Rodriguez when he pointed out the lines of the Fuentes suerte was admissible, it appearing that Rodriguez was dead when Paschal testified, and that he had known the lines of the suerte since 1825, the boundaries of the land being ancient when he pointed it out to Paschal.

This disposition that we make of the case relieves us of the necessity of passing upon all the questions raised by the various assignments of error.

The reading of a portion of their answer by appellees to the jury, as complained of in appellants’ sixteenth assignment of error, was in explanation of certain parts of the answer that were read by the appellants to the jury.

We think it was error for the appellants, in the first instance, to read abandoned pleadings as evidence to prove a fact material; but when they did so, it was permissible for the appellees to introduce other parts of the answer that explained that so read.

The judgment of the court below is affirmed.

Affirmed.