DocketNumber： Case No. 1546
Citation Numbers： 59 Tex. 187
Judges： Stayton
Filed Date： 3/27/1883
Status： Precedential
Modified Date： 9/2/2021
The court below having sustained demurrers to the plaintiffs’ petition, it only becomes necessary to consider its sufficiency.
The demurrers were as follows:
“1st. The petition does - not show that defendants jointly held possession of the land described or jointly committed waste or tres*190 pass on said land, or held or claimed any community of interest in the same, and the petition shows a misjoinder of parties defendant, there being no sufficient facts showing any joint liability.”
“ 3d. It shows that this suit is an attempt to hold defendants liable as joint trespassers, etc., by reason of their joining in an appeal bond in said suit and exercising their constitutional right of appeal, and without alleging any breaches of said bond, or alleging that defendants jointly possessed or jointly committed joint trespass on the land or held any community of interest therein.”
The petition states the recovery of the land by the guardian of Mrs. Walker, under and through whom the plaintiff biunn claims, and the tenancy in common of Mrs. Allen, the other plaintiff; and although Mrs. Allen was not a party to the former suit, yet the judgment in favor of her co-tenant for all of the land inures to her benefit, in so far as her right to the possession of the land is concerned, unless the defendants in this suit, who were also defendants in the former suit, have some title to the land to assert as against her.
The former judgment, having been rendered in a cause in which. Mrs. Allen was not a party, can have no effect as between her and the defendants in that suit, except in so far as the assertion of title in that suit by her co-tenant may have interrupted the running of the statute of limitations.
It, however, operates as a conclusive bar in favor of the plaintiffs in that suit to any claim by the defendants in that suit, of any right in the defendants at the time the judgment was rendered, unless it in some manner, as to some or all of the defendants, has been set aside.
In the former suit Mrs. Allen was not a necessary party; in this she is, and her right to recover may now be contested by the defendants.
This action .is brought to recover for the use and occupation of the land and for damages thereto by cutting timber, since the former judgment, and prior to the time the plaintiffs were put in possession of the land under a writ of restitution after the judgment was affirmed.
The petition alleges that the former action was brought to recover title to. an undivided one-half of the land and to recover the possession of the entire tract, to which, as co-tenants with Mrs. Allen, the plaintiffs claimed to be entitled; that in that suit the defendants made a joint defense, and against them all a judgment was rendered as asked; from which they all prosecuted an appeal by giving
The petition also alleges the holding of the land by all of the defendants, prior to the former judgment, except the defendant John F. Arlidge, who was made a party defendant for the reason that he had subsequently married one of the defendants; the petition also' alleged that the defendants continued to hold the land after that judgment was rendered until after its affirmance they were dispossessed.
We are of the opinion that the petition stated a good cause of action against all the defendants except John F. Arlidge, as joint trespassers.
It is the right of a defendant who, with others, is sued for a tract of land, unless he claims in his own right or in connection with his co-defendants the whole of the land, to put in a defense restricted to so much of the land as he does assert title to, and to disclaim as to the residue; and such an answer would relieve a defendant from liability for rent of or damage to any part of the land which he did not assert claim to, unless it should be made to appear that he had in some way used or damaged land title to which he disclaimed.
Under such an answer, no right would be withheld from a plaintiff by the defendant making it, except such right as might apply only to the land the title and possession of which was put in issue by the answer.
When, however, several defendants sued for an entire tract of land, or for an undivided interest therein, they having no title, put in one common defense which denies in toto any right of the plaintiff to the land, they thereby do more than is necessary to be done by them for their proper defense, if, in fact, they only claim and use separate and distinct parts of the tract of land sued for, and become participants in the wrongful holding of others with whom they make common defense, if it ultimately be determined that the land belongs to the plaintiff.
In such case they assist others in holding that to which those only claiming a part have no right, interest or claim.
The law gives to every one the right to make such defense as may be necessary to the protection of his own rights, and, if he does no more, imposes upon him an obligation to respond in damages resulting therefrom, measured by the injury naturally flowing from his own act which' is made the foundation of the action. If he goes further and interposes defenses not necessary or proper for protection
This could have no application to sureties who, with their principals, executed such bonds as are necessary to enable persons properly to have their rights legally determined by the courts; for the obligations of such persons flow from and are measured by the contracts which they make. Under the Bevised Statutes, however, a party who seeks to supersede a judgment for the recovery of land must execute a bond conditioned to pay the value of the rent or hire of the property in any suit which may be brought therefor. R. S., 1405.
. It is claimed that the following parts of the petition in this cause base the plaintiffs’ right to a joint recovery against the defendants upon the sole fact that they executed a joint appeal bond, viz.: “ that by reason of the premises the said defendants became and continued to be joint trespassers upon the said land, and became jointly liable to plaintiffs for rents and profits issuing out of and arising from the said land and for the destruction of timber.” “ The said defendants did with force and arms, on the 26th day of December, 1878, break and enter upon your petitioner’s close aforesaid, and by means of their joint action aforesaid did appropriate the rents and profits for the year 1879, as aforesaid, and did commit waste and injury, and cut and fell the timber growing upon the said land and .appropriate the same to their own use, to the damage of plaintiff.”
A fair construction of this language makes it apply not simply to the execution of the appeal bond, but to every act of the defendants set out in the petition, which embrace everything which occurred from the time the defendants entered upon the land, including the manner of defense, and the execution of a joint appeal bond.
It is, therefore, unnecessary to consider what liability the execution ■pf a joint appeal bond alone would have imposed upon all of the defendants, if their holding of the land was not such as to impose .a joint liability. The petition, taken altogether, we are of the opinion, shows that the defendants are joint trespassers. •
If the land had passed into the hands of the plaintiffs in the
If she be not the co-tenant of the other plaintiffs, then this action cannot be sustained; whether she is or not will be a matter for inquiry upon the trial.
For the error of the court in sustaining the demurrers to the petition, the judgment is reversed and the cause remanded.
Bevedsed and demanded.
[Opinion delivered March 27, 1883.]