Opinion
November 10, 1911. Rehearing Denied December 7, 1911.
Error to District Court, Newton County; W. B. Powell, Judge.
Action by Jesse H. Jones and others against A. R. Wagner. Judgment for defendant, and plaintiffs bring error. Affirmed.
J. R. West, for plaintiffs in error.
B. E. Moore, for defendant in error.
This is an action of trespass to try title brought by plaintiffs in error against the defendant in error to recover a tract of 160 acres of land on the Lewis survey in Newton county. In addition to the usual allegations in an action of trespass to try title, plaintiffs' petition alleged that they feared defendant would make use of his possession to commit injury and waste by cutting and removing growing timber from the land, and prayed for the issuance of a writ of sequestration. This writ was issued as prayed for and the land taken into possession by the officer charged with the execution of the writ. The defendant's answer contains a plea of not guilty and plea of limitation of ten years, and also plea in reconvention for damages for the levy of the writ of sequestration. Upon the trial in the court below a general demurrer presented by plaintiffs to defendant's answer was overruled, but two special exceptions presented to that portion of the answer seeking to recover damages for the unlawful levy of the writ of sequestration were sustained. After the court had ruled upon the general demurrer and special exceptions, plaintiffs dismissed their suit. The cause then went to trial on defendant's plea of title by limitation and prayer for recovery of the land, and the trial resulted in a verdict and judgment in favor of defendant for the title and possession of the land.
The answer of the defendant, omitting the plea in reconvention for damages, to which exceptions were sustained, as before stated, is as follows: "In this cause comes the defendant, A R. Wagner, demurs to plaintiffs' petition, says same shows no cause of action and prays judgment. If required to further answer, the defendant says he is not guilty of the several wrongs, injuries and trespasses charged in plaintiffs' petition, and he demands strict proof of same and puts himself upon the country. This defendant shows to the court that he is now, and for more than 30 years has been, the head of a family and that he resided upon and in peaceable and adverse possession of the land described in plaintiffs' petition, together with his said family, for a period or more than 10 years continuously before the filing of plaintiffs' said petition, cultivating, using and enjoying the same; claiming same adversely against all others, and that his said occupancy was open and notorious. Wherefore, defendant prays that upon a hearing he have judgment for title and possession of the land herein named, for his damages and costs, and for such other relief as the facts show him entitled to in law or in equity."
Under appropriate assignments of error plaintiffs complain of the judgment of the court below on the ground that defendant's answer was not sufficient to entitle him to prosecute a suit for the recovery of the land against plaintiffs, or to entitle him to a hearing on his prayer for the recovery of the land after plaintiffs had dismissed their suit against him.
It is contended that the cross-bill contains no description of the land, no allegation that defendant has title thereto, nor that he was in possession and was ejected by plaintiffs, and as the allegations of the answer would be wholly insufficient to maintain an independent suit for recovery of the land, or to remove cloud from title, such answer is insufficient to entitle defendant to affirmative relief in this suit.
We cannot agree with plaintiffs' counsel in this contention. Notwithstanding plaintiffs had dismissed their suit, their petition could be looked to in aid of defendant's answer for the purpose of identifying and furnishing a description of the land mentioned in the plea of limitation. This plea, while it does not allege in terms that defendant has title to the land, alleges facts which, if true, show that title had vested in him under the statute of limitation in the absence of pleading and proof of disability on part of the prior holders of the title.
It is true this plea may be used as a defensive plea and is often used only in this way, but when coupled with a prayer for recovery of the land to which it is sought to be applied, it becomes an affirmative plea of title and will support a judgment for the recovery of the land.
If the facts stated in a defensive plea show no more than that the plaintiff is not entitled to recover, such plea would not support a prayer for affirmative relief. This was the decision in the case of Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427. But where the facts stated in the plea are sufficient to entitle the defendant to maintain a cause of action thereon the fact that the allegations of the plea are sufficient to defeat plaintiff's claim and are pleaded for that purpose, as well as for the purpose of showing an affirmative right in defendant, do not destroy or in any way effect their sufficiency to support a prayer for affirmative relief. We understand this to be the rule announced in Short v. Hepburn, 89 Tex. 622, 35 S.W. 1056.
We think the allegations and prayer clearly indicate that the defendant intended to insist upon the plea of limitation as an affirmative plea in reconvention for the recovery of the land, and did not make such plea only in defense of plaintiffs' suit.
The only remaining question presented by appellants' brief is whether the trial court erred in permitting defendant to show by the witness, R. E. King, that a book which witness had in his hands was "Vol. 2 of the State Abstract Books," and that said book showed that the land in controversy had been patented to Lewis.
The proposition advanced under the assignment presenting this question is the following: "The Memoranda contained in the `Abstract of Titles and Patented Lands' were not competent to prove that the land in controversy had been patented, especially in the absence of any proof accounting for the absence of the original evidence, as in this case."
We think the evidence was admissible for the purpose of showing that the state had parted with its title to the land. The book in question was issued by the state and placed in the hands of its officers for the purpose of enabling them to ascertain what lands are subject to taxation and the entry in this book showing that the survey of land in question had been patented by the state was prima facie evidence of that fact and was admissible as primary evidence.
We think none of the assignments presented in appellants' brief should be sustained, and that the judgment of the court below should be affirmed, and it has been so ordered.
Affirmed.