Thompson v. Eanes

Citations

• 32 Tex. 190

Syllabus

<p>1— In a suit by a prior locator for the cancellation of a patent issued on a subsequent survey, he should show in his petition that he had peiformed every act and duty incumbent on him to perfect his right to the land; and his petition will be defective if it omit to state that his field notes had been examined, recorded and certified to the commissioner of the general land office, by the county or district surveyor, as required by Art. 4528, Paschal’s Digest.</p> <p>2— A petition should not state mere legal inferences, but facts, which, if admitted or proved, will enable the court to decide on their legality, as well as to render a proper judgment or decree thereon.</p> <p>8—Allegations in a petition that the plaintiffs had “located” their certificate on the land in controversy, and that the field notes of their survey had been “ duly authenticated according to law,” are allegations of mere legal inferences, and are not sufficient averments of the facts necessary to constitute a valid appropriation of the land.</p> <p>4— On a demurrer for insufficiency being sustained to a petition, the court below should have allowed the plaintiffs to amend, and should not have rendered judgment without allowing them an opportunity to do so.</p> <p>ON APPLICATION FOE RE-HEARING.</p> <p>5— Papers referred to as evidence can not be considered as a part of a petition, although the pleader denominate them such. Independent of such papers, a petition must contain, in its own allegations, “ a full and clear statement of the cause of action.”</p> <p>C—In this case, the judgment of the court below was reversed and the cause remanded for the purpose of allowing the plaintiffs to amend their petition. But in an application for a re-hearing the plaintiffs disclaim any desire to amend their defective petition; and, thereupon, this court reforms its previous judgment, and affirms the judgment of the court below.</p>