Throckmorton v. Davenport

Gould, Associate Justice. The field notes of the land sued for, as given in plaintiff’s petition, are as follows: “Beginning at the N. E. corner of a survey of 640 acres made for Hugh Maloy for the S. E. corner of this; thence N. 19° E., 950 varas to the N. E. corner of this survey; thence S. 71° W., 950 varas to the'¡¡ST. W. corner of this survey; thence S. 19'' W., 950 varas to the S. W. corner of this survey; thence H. 71° E., 950 varas to the beginning.” The petition contains no other description sufficient to identify the land. In the judgment the field notes are the same with the exception of the second and [237] fourth calls, in which the bearings are 1ST. 71° W. instead of S. 71° W., and S. 71° E. instead of 1ST. 71“ E. The effect of the change is that a very considerable part of the land adjudged to plaintiff is land not claimed in his pleadings. It is manifest error to render in favor of plaintiff a judgment not authorized by the allegations or prayer of his petition, and as this error is embraced amongst those assigned, it entitles plaintiff in error to a reversal of the judgment. Hall v. Jackson, 3 Tex., 309. This disposition of the case renders it unnecessary to notice other questions not likely to recur on another trial. We will only add, that the suit was not only to enforce a survey, but was also against parties in possession, to recover the land, and that we entertain no doubt as to the right of the plaintiff to dismiss as to the surveyor, and yet prosecute his suit to try title against the other defendants. The judgment is reversed and cause remanded. Reversed and remanded. [Opinion delivered May 10, 1881.]