Akinson v. Ward

2 Posey 236

Opinion

Opinion.— Held, a judgment of this character was not warranted by the verdict. It was not authorized under either the petition or the verdict.

The plaintiff Ward only was entitled to recover. The trial was had under the Ee vised Statutes, and under the allegations of the petition Ward alone could recover his own individual one-third. It was held in Stovall v. Carmichael, 52 Tex., 390, that before the Ee vised Statutes, if the tenant in common instituted a suit for trespass to try title for recovery in his own behalf of an undivided interest, he wrould be entitled by a judgment in his favor to no more than to be placed in possession with defendant. Since the Eevised Statutes, however, one can only recover his portion as sued for and distinctly stated in the petition and pleadings. See Grothaus v. De Lopez, 57 Tex., 670.

Ee VERSED AND REMANDED.