Schmidt v. Mackey

Citations

• 31 Tex. 659

Syllabus

<p>Where the petition was founded upon a joint and' several promissory note,, executed by four defendants, and also prayed for a foreclosure of a mortgage upon a lot, being part of another lot, whereon was S's store; but, in the effort to describe the lot, the petition only called for two rectangular lines, and the mortgage, which was attached as an exhibit, only called for three lines, omitting the northern line, and calling for the closing line as a diagonal, instead of the last line of a parallelogram, and the only defense was a demurrer, setting forth special causes, having no reference to these mistakes, and a general denial, and the cause was submitted to the judge, who overruled the demurrer, and rendered a money judgment against all the defendants, and a decree of foreclosure for the sale of the lot by proper descriptive calls: Held, that the general demurrer ought to have been sustained, and the plaintiff allowed to amend his descriptive calls and to aver a mistake in the mortgage, (if it was. correctly copied:) also held, that the court could not presume in favor of the judgment, because there was no predicate laid in the pleadings for proof which would support the decretal order of sale of a lot not described in the pleadings; and, because of the error, in the foreclosure, the whole judgment was reversed, and the court below instructed to allow an amendment.</p>