Koenigheim v. Miles

Citations

• 67 Tex. 113
• 2 S.W. 81
• 1886 Tex. LEXIS 624

Syllabus

<p>1. Trespass to Try Title—Practice. — Though a defendant who has pleaded a special defense, in trespass to try title, will be confined in his defense to the special matters as pleaded, yet this does not relieve the plaintiff from the necessity of proving his title, or preclude the defendant from showing that the land sued for is not embraced in the description given in plaintiff’s deeds.</p> <p>2. Same—Evidence—Estoppel.—In trespass to try title, when plaintiff’s deed shows a conveyance from a party to one portion of a tract of land, and the defendant has subsequently received a deed from the same vendor to another portion of the same tract, the defendant is not precluded from showing that plaintiff acquired no title by his deed. If the deeds were for the same land, and the claim of title by each was through a common source, the defendant would not be thereby estopped from showing a superior outstanding title in third party.</p> <p>3. Same—Judgment Costs.—When in trespass to try title against several defendants, the evidence discloses that none of them were in possession of a part of the premises sued for, and all having answered, failed to disclaim as to any part of the land, and the plaintiff exhibits a perfect title, the judgment should be against all the defendants for all the land to which he establishes his right, and for the costs of suit.</p> <p>4. Pleading—Boundary.—The establishment of the boundary of plaintiff’s land is necessary in every action of trespass to try title, when be establishes his claim to only part of the land sued for, and is an issuable fact in such case, without the necessity of special pleading for that purpose.</p> <p>6. Grant.—Where the description in the deed given of the property to be conveyed is general in the granting clause, and is immediately followed in the same clause by the exception which points out the particular property which is to be excluded from the grant, there is no repugnancy, for the exception is not out of the