Hill v. Allison

Bonner, Associate Justice. By a familiar rule, the pleadings of the plaintiff" must be taken most strongly against him. Their legal effect, as shown by his affirmative allegations, is, that he and the defendant claim title to the lots in controversy from a common source,—the defendant claiming through the plaintiff, first, under a lease from him, and, second, under a subsequent sheriff’s deed purporting to convey the title of plaintiff to him. [393] In anticipation of defendant’s answer, and in the nature of a plea in confession and avoidance of his title, the plaintiff, in the first instance, by affirmative allegation, tenders the issue of the invalidity 6f this sheriff’s deed to convey the property, because it was at the time of the levy and sale the homestead of defendant and his family. The defendant does not answer specially, but simply by plea of not guilty. The effect of this was to put the plaintiff upon proof of his right to recover on the issue tendered by him. (Harlan v. Haynie, 9 Tex., 462.) . The real issue, then, between the parties, as presented by the pleadings, was the validity of this sheriff’s deed to pass title to the property; and, under the case as made, the burden of proof to avoid it devolved upon the plaintiff' himself. He seems to have proceeded upon this theory. Whether the testimony was sufficient to sustain his allegations of homestead, we express no opinion. The court, however, did not present this issue to the jury,—though particular attention was called to it by the special charges asked by the defendant,— but rested the case solely on the possession of the defendant under the lease to him from the plaintiff. This action of the court is assigned as error. We think the same well taken, and that the cause should be reversed and remanded. It is accordingly so ordered. Reversed and remanded.