Roberts, Chief Justice.
In 1840, when the common law was adopted as our fundamental system of jurisprudence, it was provided, that “the proceedings in civil suits shall, as heretofore, be conducted by petition and answer.” (Paschal’s Dig., art. 979.) Subsequently it was thought proper to give directions, in framing a petition, requiring that it “ shall set forth clearly the names of the parties, and their residence, if known, with a full and clear statement of the cause of action, and such other allegations, pertinent to the cause, as may be deemed necessary to sustain the suit, and also a full statement of the nature of the relief he requests of the court.” (Act of 1846, Paschal’s Dig., art. 1427.) Under the guidance of these rules, we often find a petition to contain a historical statement [428]*428of the facts, out of which the rights of the plaintiff have grown, which may embrace several causes of action, either perfectly or imperfectly stated, resulting in a prayer for several alternative reliefs. The defendant, being also allowed in his answer “to plead as many several matters, whether of law or of fact, as he shall think necessary to his defense ” to such a petition, will most likely except, in such way as to test the legal competency of every fact and combination of facts, to produce the varied and numerous results prayed specially for in the petition, or which may be properly attained under the general prayer for relief, which is usually inserted at the close of tire petition. Upon a hearing of such exceptions,the court is required to ^ascertain what combination of facts can he found stated in the petition and in its amendments, which will constitute a cause of action responsive to any of the special reliefs prayed for, or to the general relief in the prayer of the petition. If such a combination of facts stated can be found, the court must sustain the petition as containing a good cause of action, although three fourths or nine tenths of its allegations are liable to the exceptions taken to them, and must thenceforth be treated as useless surplusage. It is not to be understood, however, that the statements of the facts can be distorted from their true meaning and purpose, as used in the petition, and abstracted from their proper connections with other facts stated, to accomplish this object; but, on the contrary, they must be of such a character as to stand in consistent harmony when separately and conjointly considered. (Whitlock v. Castro, 22 Tex., 113; 30 Tex., 21.)
Such is, practically, our system of pleading, and such a case is the one now under consideration.
The objects of this suit, as indicated by the alternative reliefs prayed for, are, the recovery of a league and labor of land, embracing the Galveston city league, upon the eastern end of Galveston island, with damages; or, the headlight certificate of Edgar, located upon said land previous to 1842; or, the alleged value of said certificate, by reason of its con[429]*429version at that date; or, a title to the lots, alleged to have been fraudulently traded to Mrs. Edgar for said certificate at said time.
The exceptions, and especially those which set up the statutes of limitation, were taken to the facts of the petition, upon which all of these reliefs were predicated, except the first, which was the recovery of the land. And they were "well taken as to those facts, relating to the recovery of the land, by reason of Edgar’s immigration in 1885; his selection and settlement in April, 1836; his subsequent improvements and the filing of his headright certificate upon it in July, 1839. That was settled in the decision of the previous suit by this court, and we have no desire to reconsider the positions taken in the elaborate opinion of Chief Justice Hemphill, then delivered. (Edgar v. The Galveston City Co., 21 Tex., 327.)
In the original petition, we find the following: “And your petitioner further shows unto your honor, that besides the above and foregoing, he is otherwise the legal owner in fee simple of the league and labor of land lying and being situate on the east end of Galveston island, in the county of Galveston, commonly known as the city league, and on which is located the city of Galveston, and that the said league and labor of land aforesaid, being so in the lawful possession of your petitioner, and he the owner thereof, the said defendants did, on the first day of May, 1842, with force and arms, enter thereupon, and dispossess your petitioner, and have ever since forcibly held, and do now forcibly hold and detain the same, and refuse to yield or surrender possession thereof to your petitioner; all of which is to the damage of your petitioner of one hundred thousand dollars.”
In the amended petition, we find the following description of the land sued for: “ The league and labor of land mentioned in the petition, and in this amended petition, is the same which defendants claim, and is commonly called by the name of Galveston city league and labor, and begins at the most eastern point or eastern extremity of Galveston island, [430]*430and thence runs in a westwardly and southwestwardly direction, with the course of the gulf beach, to the southeast corner of what is called lot Ho. 1, in section Ho. 1, according to the survey of Galveston island, known as Trimble and Lindsay’s survey; thence with the east boundary line of said section Ho. 1, in a northerly direction, across the island to the northeast corner of lot Ho. 10, in said section Ho. 1; thence in an easterly direction, following the meanderings of Galveston bay, to the place of beginning, containing one league and labor of land.”
Amongst the numerous prayers, we find the following prayer, in the original petition:
“And your petitioner prays for the judgment and writ of your honorable court, to restore him to the possession of said league and labor of land, and for all damages for the detention of said property, and costs.”
These parts of the petition exhibit a good cause of action, and must be so held, unless the petition contains other allegations that constitute a defense to it. In searching through the various allegations of the petition and amended petition, to ascertain whether or not plaintiff has stated facts enough to make out a defense to his action in favor of defendants, a distinction must be made between what is stated in the nature of a replication to and by way of the denial of the validity of the defenses set up in the answers of the defendants, and what is stated by way of explanation, incidentally, of his cause of action, which, when pertinent, is permitted by the statute that has been quoted.
Plaintiff’s allegations of defendant’s possession of the land since 1842, holding under a title from the Government, through Menard, is thus qualified by the allegations, that said title is fraudulent and void in the replication to defendant’s answer, and also by his allegation that he has been in the peaceable possession of said land during that whole time, and he fails to show any other facts that might be necessary to [431]*431give the defendants a title to the land, under any section of the statute of limitations.
So, too, the plaintiff admits that this, is a second suit for the same land, and that a judgment final was -rendered against him in favor of the defendants in the former suit.
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Roberts, Chief Justice.
In 1840, when the common law was adopted as our fundamental system of jurisprudence, it was provided, that “the proceedings in civil suits shall, as heretofore, be conducted by petition and answer.” (Paschal’s Dig., art. 979.) Subsequently it was thought proper to give directions, in framing a petition, requiring that it “ shall set forth clearly the names of the parties, and their residence, if known, with a full and clear statement of the cause of action, and such other allegations, pertinent to the cause, as may be deemed necessary to sustain the suit, and also a full statement of the nature of the relief he requests of the court.” (Act of 1846, Paschal’s Dig., art. 1427.) Under the guidance of these rules, we often find a petition to contain a historical statement [428]*428of the facts, out of which the rights of the plaintiff have grown, which may embrace several causes of action, either perfectly or imperfectly stated, resulting in a prayer for several alternative reliefs. The defendant, being also allowed in his answer “to plead as many several matters, whether of law or of fact, as he shall think necessary to his defense ” to such a petition, will most likely except, in such way as to test the legal competency of every fact and combination of facts, to produce the varied and numerous results prayed specially for in the petition, or which may be properly attained under the general prayer for relief, which is usually inserted at the close of tire petition. Upon a hearing of such exceptions,the court is required to ^ascertain what combination of facts can he found stated in the petition and in its amendments, which will constitute a cause of action responsive to any of the special reliefs prayed for, or to the general relief in the prayer of the petition. If such a combination of facts stated can be found, the court must sustain the petition as containing a good cause of action, although three fourths or nine tenths of its allegations are liable to the exceptions taken to them, and must thenceforth be treated as useless surplusage. It is not to be understood, however, that the statements of the facts can be distorted from their true meaning and purpose, as used in the petition, and abstracted from their proper connections with other facts stated, to accomplish this object; but, on the contrary, they must be of such a character as to stand in consistent harmony when separately and conjointly considered. (Whitlock v. Castro, 22 Tex., 113; 30 Tex., 21.)
Such is, practically, our system of pleading, and such a case is the one now under consideration.
The objects of this suit, as indicated by the alternative reliefs prayed for, are, the recovery of a league and labor of land, embracing the Galveston city league, upon the eastern end of Galveston island, with damages; or, the headlight certificate of Edgar, located upon said land previous to 1842; or, the alleged value of said certificate, by reason of its con[429]*429version at that date; or, a title to the lots, alleged to have been fraudulently traded to Mrs. Edgar for said certificate at said time.
The exceptions, and especially those which set up the statutes of limitation, were taken to the facts of the petition, upon which all of these reliefs were predicated, except the first, which was the recovery of the land. And they were "well taken as to those facts, relating to the recovery of the land, by reason of Edgar’s immigration in 1885; his selection and settlement in April, 1836; his subsequent improvements and the filing of his headright certificate upon it in July, 1839. That was settled in the decision of the previous suit by this court, and we have no desire to reconsider the positions taken in the elaborate opinion of Chief Justice Hemphill, then delivered. (Edgar v. The Galveston City Co., 21 Tex., 327.)
In the original petition, we find the following: “And your petitioner further shows unto your honor, that besides the above and foregoing, he is otherwise the legal owner in fee simple of the league and labor of land lying and being situate on the east end of Galveston island, in the county of Galveston, commonly known as the city league, and on which is located the city of Galveston, and that the said league and labor of land aforesaid, being so in the lawful possession of your petitioner, and he the owner thereof, the said defendants did, on the first day of May, 1842, with force and arms, enter thereupon, and dispossess your petitioner, and have ever since forcibly held, and do now forcibly hold and detain the same, and refuse to yield or surrender possession thereof to your petitioner; all of which is to the damage of your petitioner of one hundred thousand dollars.”
In the amended petition, we find the following description of the land sued for: “ The league and labor of land mentioned in the petition, and in this amended petition, is the same which defendants claim, and is commonly called by the name of Galveston city league and labor, and begins at the most eastern point or eastern extremity of Galveston island, [430]*430and thence runs in a westwardly and southwestwardly direction, with the course of the gulf beach, to the southeast corner of what is called lot Ho. 1, in section Ho. 1, according to the survey of Galveston island, known as Trimble and Lindsay’s survey; thence with the east boundary line of said section Ho. 1, in a northerly direction, across the island to the northeast corner of lot Ho. 10, in said section Ho. 1; thence in an easterly direction, following the meanderings of Galveston bay, to the place of beginning, containing one league and labor of land.”
Amongst the numerous prayers, we find the following prayer, in the original petition:
“And your petitioner prays for the judgment and writ of your honorable court, to restore him to the possession of said league and labor of land, and for all damages for the detention of said property, and costs.”
These parts of the petition exhibit a good cause of action, and must be so held, unless the petition contains other allegations that constitute a defense to it. In searching through the various allegations of the petition and amended petition, to ascertain whether or not plaintiff has stated facts enough to make out a defense to his action in favor of defendants, a distinction must be made between what is stated in the nature of a replication to and by way of the denial of the validity of the defenses set up in the answers of the defendants, and what is stated by way of explanation, incidentally, of his cause of action, which, when pertinent, is permitted by the statute that has been quoted.
Plaintiff’s allegations of defendant’s possession of the land since 1842, holding under a title from the Government, through Menard, is thus qualified by the allegations, that said title is fraudulent and void in the replication to defendant’s answer, and also by his allegation that he has been in the peaceable possession of said land during that whole time, and he fails to show any other facts that might be necessary to [431]*431give the defendants a title to the land, under any section of the statute of limitations.
So, too, the plaintiff admits that this, is a second suit for the same land, and that a judgment final was -rendered against him in favor of the defendants in the former suit. But these facts are admitted, with the qualification involved in the allegations made in the same connection, that the former suit was to recover the same land, and contained similar allegations in many respects, and that upon exceptions thereto, judgment was rendered against him in favor of the defendants, which judgment was affirmed by the Supreme Court, and that in less than twelve months thereafter, this suit was brought by him against the same defendants to recover the same land.
If the statute of our State does not allow a second suit upon the same cause of action, under the circumstances thus set out by plaintiff, what he has stated amounts to the admission of a bar to his action by a former recovery, and would prevent his pleading, taken all together, from presenting a good cause of action.
We are of opinion, however, as stated by Justice Lipscomb, that the object of the statute was to allow the plaintiff to have two trials upon the merits. (Dangerfield v. Paschal, 20 Tex., 541.) In the case just cited, the judgment in the first suit was not rendered upon the verdict of a jury as literally prescribed by the statute, but by the finding of the court upon a demurrer to the evidence; still the Supreme Court held, that the plaintiff was none the less entitled to bring a second suit within twelve months, as though the judgment had been rendered upon the verdict of the jury.
Certainly a judgment of the court, founded on the verdict of the jury, is as complete a bar in ordinary cases, on the principle of res judicata, as a judgment on demurrer can be. One is for the lack of sufficient facts proved, and the other for the lack of sufficient facts alleged, and both are equally judgments upon the merits of the case, as presented on the trial.
[432]*432The law is .construed, according to its spirit, in order to embrace a case that is wanting in one of the incidents mentioned in the statute, though embodying the substance of what the statute requires, and coming within the object evidently contemplated in the passage of the act. (Paschal’s Dig,, arts. 5298, 5299.)
In the action of ejectment, any number of suits might be brought in succession between substantially the same parties and for the same land. Our statute, in abolishing the fictions of said action, and substituting trespass as the form of action for the trial of title to land, gave the plaintiff two suits, one after the other, and provided that he should not be precluded and barred by the first one, although he had had a trial of his right, in the fullest and most complete mode known to the. law, by a verdict of the jury, and judgment of the court thereon against him. It is not reasonable that it ever could have been contemplated by the Legislature, in passing this law, that he should be precluded and barred by a less full and less complete mode of trial of his right by a judgment of the court against him upon demurrer to the pleadings, or to the evidence, or upon submitting the case to the court upon the law and facts, without a jury.
We are of opinion, therefore, that the petition contains a good cause of action for the recovery of the league and labor of land, with damages for the detention and holding of the same as prayed for. The alternative claim for a title to certain lots, is not presented with appropriate averments, showing any right, with that fullness and certainty that would justify a recovery. The alternative claim for the certificate itself, as personal property, -is defeated -by plaintiff’s own, allegation, that it has been merged into a patent. The alternative claim for damages, for the wrongful conversion of the certificate, as shown in the petition, has long since been barred.
The exceptions of the defendants were well taken to these alternative claims, as well as to the title to land by mere [433]*433immigration, selection, settlement, improvement, and filing of certificate on the land, as before indicated, which leaves standing, as a good cause of action, the formal action of trespass for the land, the constituents of which have been copied in this opinion. It is probable that they were inserted in the petition, to secure a trial by a jury, and to prevent this suit ‘from being dismissed upon exceptions, as the former suit was.
If it be true that the plaintiff has a title to the league and labor of land, as he alleges, “besides the above and foregoing ”—meaning thereby the one dependent upon the facts specially set forth in his historical statement—it is proper that he should have an opportunity to submit it to a jury of the country, under the direction of the court, as in other eases.
The judgment is reversed and the cause remanded.
Reversed and remanded.