Bourke v. Vanderlip

22 Tex. 221

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, Ch. J.

It is not perceived, that there was any legal impediment to the making of a valid agreement, in consideration of the giving of further time to the debtor, to waive, on his part, the twenty days’ notice provided for in the deed of trust. In the face of such an agreement, (which had been acted on by the giving of the time, by the creditor,) the debtor, we think, was not entitled to the aid of a court of equity, to be relieved from his agreement, by an injunction to restrain the sale.

It is insisted, that the judgment was erroneously rendered for the defendants in the injunction, for the money secured by the deed of trust, because, it is said, there was no plea in re-convention. But it is to be observed, that it appeared, by the plaintiff’s own averments, that the defendants were entitled to a recovery. Their cause of action was fully set forth, and admitted by the plaintiff, in his petition, which the defendants averred to be true. It was not necessary to repeat, by distinct averments in the answer, what the petition admitted. It was sufficient for the defendants to ask the judgment, to which they were entitled upon the plaintiff’s own averments. This they did, by the prayer of their answer. Where the case of a party is thus confessed, by the adverse party, there can be no necessity that he should aver and prove it. The object of an allegation, is to admit proof; but there is no necessity for proof, where the facts are admitted, and therefore not in issue between the parties. The coxmt having acquired jurisdiction of the case, very propei’ly proceeded to adjudicate the lights of the parties, as disclosed by their allegations and proofs.

The judgment appears to have been rightly rendered by the court, (a jui’y having been waived,) against principal and sureties in the injunction bond. (Hart. Dig. Art. 1602-3.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.