O'Neal v. Lockhart , 2 Posey 597 ( 1879 )

Opinion.— The allegations in the petition affirmatively show that there was no priority of right or claim between the several appellees with reference to the subject-matter of the litigation. Each of them claimed to be the owner of his one hundred and sixty acre pre-emption survey; neither asserted nor claimed any right or interest in the other surveys; no community of interest in the several tracts of land was claimed; on the contrary, it appears that no such interest had ever existed.

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The question was not raised by special exceptions. Appellants’ general demurrer and special exceptions going to other supposed defects in the petition were overruled, and that ruling is assigned for error; and the appellants in their brief insist that the judgment ought to be reversed on account of the misjoinder of parties plaintiff and causes of action. In cases like the one before us the question of misjoinder, where it is obvious, may be taken advantage of by plea in abatement, under the general denial, by demurrer, motion in arrest of judgment or by writ of error. Gould’s Pleading, 273, 275.

It was held in May v. Slade, 28 Tex., 208, that when nonjoinder of parties plaintiff appeared from the allegations in the petition, that the objection might be taken by exception.

In the case of Punchard v. Delk,¹ decided at the present term, the plaintiffs sued, as tenants in common, to recover a large tract of land; it was afterwards ascertained that a partition between the plaintiffs had been made in the probate court long prior to the institution of the suit. To avoid delay, expense and several actions, the plaintiffs and defendants entered into a written agreement waiving the misjoinder, etc. It was held that this could be done, and that the agreement was binding between the parties. That decision proceeded upon the theory that the effect of the agreement was a waiver of the petition, and placed the plaintiffs before the court, and for the purposes of the suit, as co-tenants.

In this case, however, there never had been any common interest among the plaintiffs; each was seeking to recover a separate and distinct tract of land, all joining in the same petition.

We are of opinion that the court erred in overruling appellants’ demurrers.

On the trial of the case in the court below, the appellants asked the court to charge the jury, in effect, that if appellees had settled on the land in controversy as preemption, and permitted more than one year to elapse without complying with the law in having the same surveyed and the field-notes returned to the general land office, and that during that time appellants'located a certificate upon the land and had it surveyed and the field-notes returned to the general land office, and had secured, a patent therefor, that then appellants would have the superior right to the land and ought to recover. And also that the patent, prima facie, constituted title, and that the burden was upon the appellees to establish a better title before they could recover. These charges were refused by the court and the refusal assigned as error.

In our opinion the charges ought to have been given.

The other errors complained of need not be considered as they are such as will not likely occur upon another trial.

Bbveesed and remanded.

1 55 Tex., 304.