Hickson v. Mobley

Simmons, Justice.

Mrs. Hickson filed her bill in Harris superior court against Bryan, administrator, and others, in which she made many allegations, as will be seen in the report of this case. The case was referred to J. M. McNeill, Esq!, as auditor, with the powers of a master in chancery. After a long and tedious hearing of the evidence in the case, he made an able and lucid report to the superior court of Harris county. To that report, counsel for Mrs. Hickson filed six exceptions, which they style “ exceptions of law.” These exceptions were heard and determined by his honor, Judge Boynton, of the Plint circuit, who, after a careful consideration of the same, overruled and dismissed them-To this judgment the complainant excepted.

One of the chief points in controversy before the auditor seems to have been as to lot of land 232. The auditor reported that the complainant could not recover this lot under the pleadings in her bill. This was excepted to as matter of law, and the exception was overruled by the judge in the court below. This was the only exception of pure law made by the complainant.

We have carefully read the bill of the complainant and the report of the auditor, and we do not see that the court committed any error in disallowing and overruling these exceptions. The auditor was right in holding that the complainant could not recover this lot of land under the allegations in her bill, and the judge in the court below was right in so ruling. The bill charges that J. M. & R. B. Mobley, two of the defendants, “ are in possession of all of the lands of said estate, which are held illegally as against your oratrix, save and except lot number' 232, Avhich was disposed of in the settlement of said Simpson estate fi.fa., as aforesaid.” There is an express allegation that she does not claim this lot of land. In other words, she admits in her bill that she has no right, under the facts as she charges, to recover this land; that it does not belong to her. Her counsel contended that while this allegation was in the bill, the facts which led her to make the allegation were not found to-be true by the auditor, and as she was mistaken as to the facts on which the allegation, was based, she ought, in a court of equity, to be allowed to recover, she having a prayer in her bill for general relief. It appears that this report was filed by the auditor several months before it was submitted to the judge. Oo.unsel for the complainant, therefore, must have known what the report of the auditor was, and .they had ample time to amend the bill, either by striking out this allegation or by putting it in the alternative. They failed to do so and preferred to let it stand as a disclaimer of the right to recover this lot of land. The prayer for general relief is broad, and will cover any relief that is germane to the bill, but we do not think it is broad enough to allow a complainant to recover possession of property in which she expressly disclaims title. This disposes of this exception.

We have carefully scrutinized the other* exceptions made to the auditor’s report, and if they are exceptions of law, the facts disclosed by the record do not show that the auditor erred in his conclusions, or that the court erred in sustaining the report of the auditor and dismissing the exceptions. We therefore think that the court did not err as complained of by the plaintiff in error; and the judgment is affirmed.