Ellis v. Mills

Citations

• 28 Tex. 584

Syllabus

<p>The plaintiff sued the defendants' in an action of trespass to try title. The defendants plead the general issue, and' put in evidence the record of a former suit of trespass to try title, instituted against them by the plaintiff for the same land and on the same title, which former suit had been dismissed by the plaintiff on a compromise between him and the defendants, by which the defendants agreed to pay the costs of the suit and the fees of the plaintiff’s attorneys, and the plaintiff agreed to dismiss the suit and to withdraw his claim to the land. The defendants further proved that they had complied with the terms of the compromise on their part: Held, that the plaintiff was precluded by the compromise from maintaining this second action against the defendants, notwithstanding that the compromise may have resulted differently from what the plaintiff anticipated, in consequence of the refusal of the commissioner of the general land office to permit him to float his certificate from the land.</p> <p>It will be seen that evidence of the compromise and the former judgment based thereon were admitted under the general issue of “not guilty.” (Paschal’s Dig., Art. 5307, Note 1153.)</p> <p>If a party seek to avoid a compromise for which value has been paid, and ' which has become the judgment of a court, on account of any fraud or mistake, he must attack it by a direct proceeding for that purpose. (Paschal’s Dig., Arts. 5292, 5307, Notes 1142, 1153.)</p> <p>But a party who has made a compromise, whereby he got fees and costs paid, and got a'patent for the land in suit, cannot be permitted to disregard and evade it, by maintaining a second suit against the defendants for the land upon the strength of the patent thus obtained, more than, a year after the judgment, and he retaining the benefits he had derived under the compromise. (Paschal’s Dig., Art. 5298, Note 1145.)</p> <p>Where, upon the merits, the plaintiff has no right to recover, immaterial rulings against hi