Walker, P. J. Com. App.
The question most prominent and important in this case is one of pleading and practice. It is not whether the plaintiff had rights under the facts of the case for the successful maintenance of which he might have sued and recovered upon appropriate allegations and a proper prayer for relief, but it is distinctly questioned by the defendants whether he is entitled upon such facts to recover in a suit brought in form of an action of trespass to try title, alleging ownership, right of possession, followed by the usual prayer for the recovery of possession of the premises. The district court determined that proposition in the negative, as is [632]*632manifest from the charge given to the jury, and the approval of the verdict of the jury.
The maxims announced in Hall v. Jackson, 3 Tex., 305, that facts, although proved, cannot form the basis of judgment unless alleged; that the pleadings must constitute a sufficient legal basis on which to predicate the judgment, constitute, as it were, a beginning corner, and a corner-stone of our system of pleading and procedure.
In Dennison v. League, 16 Tex., 399, the principle was pointedly and vigorously reasserted, the court declaring that there is no rule so stringently enforced as that the allegations must be broad enough to let in the proof, and no evidence not supported by the allegations can support the verdict. Evidence, although admitted without objection, which was not anticipated by proper allegations in the pleadings, should be disregarded. Paul v. Perez, 7 Tex., 338, 345. See 10 Tex., 220, 234; 11 Tex., 457.
It follows from the application of these rules of law to this case, that under the plaintiff’s pleading, if he recovers from the defendant, that recovery must-be one that conforms to the nature of his action and the prayer of his petition. If he recovers at all, he must show himself entitled, under all the evidence in the case, to a judgment for the possession of the land; failing in that, the defendants must recover. The plaintiff could not, in a word, obtain in this action, as the pleadings stand, a decree of foreclosure of a mortgage upon the land, or other like equitable remedy to adjust the relative rights of all parties in the subject matter of controversy; he must show a right to gain exclusive possession of the land as against the defendants, or else fail in the suit.
The defenses set up by the defendants were sustained by the verdict of the jury, and it is now a question of law as to whether the facts proved in support of the defendants’ answers qualified or not the seeming absoluteness, prima facie, of the plaintiff’s legal title, so as to interpose against it a valid ground to prevent the plaintiff from dispossessing the defendants.
The appellant Edrington and the appellee Newland, as witnesses, gave their respective versions of the facts which have induced this ligation, and most of the essential history of them as detailed by those parties is virtually the same, especially so in respect to the fact that Newland sought the appellant to procure from him, and did obtain the requisite loan, for the purpose, as mutually understood and agreed to, that Newland might be restored to his former homestead ; and that the deed was taken by their mutual consent in the name of Edrington.
[633]*633The testimony of Newland shows that he, ¡Newland, was the purchaser of the premises as between himself and the plaintiff; that the latter held the legal title with the rights of a mortgagee; that he obtained and accepted the deed of conveyance from Moore, in pursuance of an agreement with Newland, which had the effect to establish the relation of mortgagor and mortgagee as to the property, in order to secure the payment of the loan. That under the terms of the contract Newland should have an indefinite time within which to pay the principal, so long as he paid interest thereon in the guise of rent, provided for in a formal instrument of lease.
Further, it was stipulated “ that when convenient for defendant, he could return to the plaintiff the amount of money so furnished by plaintiff to defendant, and then plaintiff would convey the property in controversy to defendant.” This contract fairly recognized the loan, and the consequent debt therefor, together with the mode and periods for its payment, as well as the security for the ultimate satisfaction of the debt. Surely the plaintiff was entitled to enforce the collection of the debt according to the conditions and stipulations w'hich were provided between the parties; and it is the sequence to that proposition, that he could not at the same time claim the ownership of the land, as well as to be the creditor of Newland for the purchase money which went to invest him, Edrington, with the apparent title; he cannot have both the land and the money.
Edrington, however, disclaims and disavows any claim as creditor, but claims the land alone. The evidence of Newland, which we must now assume to be true after the finding of the jury, will not allow of a view different from that of his being the lender of the purchase money, and he must be deemed the creditor of Newland.
Under this view, the plaintiff cannot recover in this action; the mortgagee is not entitled to the possession of the land mortgaged, and his remedy is, of course, to foreclose, and not in form of an action of trespass to try title. See Parker v. Beaver, 19 Tex., 410; Duty v. Graham, 12 Tex., 427; Hannay v. Thompson, 14 Tex., 144-5; McKey v. Welch, 22 Tex., 390; Mann v. Falcon, 25 Tex., 274-6.
These cases embrace several of the legal propositions which have been under discussion and involved herein.
The view taken by us of the leading questions in the case renders it unnecessary to reply to several of the assignments of error.
In respect to the grounds of error relied on as to the verdict for damages, we think that the same is supported under the pleading [634]*634and evidence, and that there - is no error for which the judgment ought to be reversed.
The judgment ought to have been rendered solely for the defendant H. S. Newland, and not jointly for him and his wife, notwithstanding she joined in the suit claiming damages in the supplemental petition in which she and her husband reconvened. The joinder of Mrs. Newland in the special answer above indicated in no wise adds to the legal right of her husband to recover in respect to the facts and matters therein alleged, and that answer does not set forth any special ground of action in behalf of her separate property or personal rights which would render it essential or proper that she should become a party defendant in this action. The damages claimed in the answer of Mrs. Newland and her husband are alleged to be such as were the consequence of the plaintiff’s illegal dispossession by sequestration in this suit of the defendant H. S. Newland and his family. He, then, as the marital head of the community, was plainly the only necessary or proper party to sue" for and recover damages for such injuries. See Cannon v. Hemphill, 7 Tex., 184.
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Walker, P. J. Com. App.
The question most prominent and important in this case is one of pleading and practice. It is not whether the plaintiff had rights under the facts of the case for the successful maintenance of which he might have sued and recovered upon appropriate allegations and a proper prayer for relief, but it is distinctly questioned by the defendants whether he is entitled upon such facts to recover in a suit brought in form of an action of trespass to try title, alleging ownership, right of possession, followed by the usual prayer for the recovery of possession of the premises. The district court determined that proposition in the negative, as is [632]*632manifest from the charge given to the jury, and the approval of the verdict of the jury.
The maxims announced in Hall v. Jackson, 3 Tex., 305, that facts, although proved, cannot form the basis of judgment unless alleged; that the pleadings must constitute a sufficient legal basis on which to predicate the judgment, constitute, as it were, a beginning corner, and a corner-stone of our system of pleading and procedure.
In Dennison v. League, 16 Tex., 399, the principle was pointedly and vigorously reasserted, the court declaring that there is no rule so stringently enforced as that the allegations must be broad enough to let in the proof, and no evidence not supported by the allegations can support the verdict. Evidence, although admitted without objection, which was not anticipated by proper allegations in the pleadings, should be disregarded. Paul v. Perez, 7 Tex., 338, 345. See 10 Tex., 220, 234; 11 Tex., 457.
It follows from the application of these rules of law to this case, that under the plaintiff’s pleading, if he recovers from the defendant, that recovery must-be one that conforms to the nature of his action and the prayer of his petition. If he recovers at all, he must show himself entitled, under all the evidence in the case, to a judgment for the possession of the land; failing in that, the defendants must recover. The plaintiff could not, in a word, obtain in this action, as the pleadings stand, a decree of foreclosure of a mortgage upon the land, or other like equitable remedy to adjust the relative rights of all parties in the subject matter of controversy; he must show a right to gain exclusive possession of the land as against the defendants, or else fail in the suit.
The defenses set up by the defendants were sustained by the verdict of the jury, and it is now a question of law as to whether the facts proved in support of the defendants’ answers qualified or not the seeming absoluteness, prima facie, of the plaintiff’s legal title, so as to interpose against it a valid ground to prevent the plaintiff from dispossessing the defendants.
The appellant Edrington and the appellee Newland, as witnesses, gave their respective versions of the facts which have induced this ligation, and most of the essential history of them as detailed by those parties is virtually the same, especially so in respect to the fact that Newland sought the appellant to procure from him, and did obtain the requisite loan, for the purpose, as mutually understood and agreed to, that Newland might be restored to his former homestead ; and that the deed was taken by their mutual consent in the name of Edrington.
[633]*633The testimony of Newland shows that he, ¡Newland, was the purchaser of the premises as between himself and the plaintiff; that the latter held the legal title with the rights of a mortgagee; that he obtained and accepted the deed of conveyance from Moore, in pursuance of an agreement with Newland, which had the effect to establish the relation of mortgagor and mortgagee as to the property, in order to secure the payment of the loan. That under the terms of the contract Newland should have an indefinite time within which to pay the principal, so long as he paid interest thereon in the guise of rent, provided for in a formal instrument of lease.
Further, it was stipulated “ that when convenient for defendant, he could return to the plaintiff the amount of money so furnished by plaintiff to defendant, and then plaintiff would convey the property in controversy to defendant.” This contract fairly recognized the loan, and the consequent debt therefor, together with the mode and periods for its payment, as well as the security for the ultimate satisfaction of the debt. Surely the plaintiff was entitled to enforce the collection of the debt according to the conditions and stipulations w'hich were provided between the parties; and it is the sequence to that proposition, that he could not at the same time claim the ownership of the land, as well as to be the creditor of Newland for the purchase money which went to invest him, Edrington, with the apparent title; he cannot have both the land and the money.
Edrington, however, disclaims and disavows any claim as creditor, but claims the land alone. The evidence of Newland, which we must now assume to be true after the finding of the jury, will not allow of a view different from that of his being the lender of the purchase money, and he must be deemed the creditor of Newland.
Under this view, the plaintiff cannot recover in this action; the mortgagee is not entitled to the possession of the land mortgaged, and his remedy is, of course, to foreclose, and not in form of an action of trespass to try title. See Parker v. Beaver, 19 Tex., 410; Duty v. Graham, 12 Tex., 427; Hannay v. Thompson, 14 Tex., 144-5; McKey v. Welch, 22 Tex., 390; Mann v. Falcon, 25 Tex., 274-6.
These cases embrace several of the legal propositions which have been under discussion and involved herein.
The view taken by us of the leading questions in the case renders it unnecessary to reply to several of the assignments of error.
In respect to the grounds of error relied on as to the verdict for damages, we think that the same is supported under the pleading [634]*634and evidence, and that there - is no error for which the judgment ought to be reversed.
The judgment ought to have been rendered solely for the defendant H. S. Newland, and not jointly for him and his wife, notwithstanding she joined in the suit claiming damages in the supplemental petition in which she and her husband reconvened. The joinder of Mrs. Newland in the special answer above indicated in no wise adds to the legal right of her husband to recover in respect to the facts and matters therein alleged, and that answer does not set forth any special ground of action in behalf of her separate property or personal rights which would render it essential or proper that she should become a party defendant in this action. The damages claimed in the answer of Mrs. Newland and her husband are alleged to be such as were the consequence of the plaintiff’s illegal dispossession by sequestration in this suit of the defendant H. S. Newland and his family. He, then, as the marital head of the community, was plainly the only necessary or proper party to sue" for and recover damages for such injuries. See Cannon v. Hemphill, 7 Tex., 184.
We will add, before concluding this opinion, that the claim set up under the plaintiff’s deed under his evidence, to rebut and repel the idea that the transaction was a mortgage, and maintaining that his deed did constitute an absolute, valid title without conditions, rests upon his statement that the contract between the plaintiff and defendant was to the effect that Newland had no other interest in the premises than such as he acquired as a tenant. That Newland, under the agreement, was entitled to remain and occupy the premises until the value of the rent should satisfy and discharge the amount of money which Newland had advanced in the' purchase made by plaintiff from Moore. Eewland had advanced about $100, or perhaps $105, besides which, he paid to plaintiff at the time of the transaction six months’ rent, $52.50. Assuming these to be the true facts, the testimony does not show what was the value of the rents of the premises further than was agreed upon for the first six months: The plaintiff, to be entitled to evict and dispossess the defendant under these circumstances, must have proved that the defendant, at the date of the institution of this suit, was in default in refusing to deliver possession under a wrongful holding over, after having occupied the premises beyond the period of time which he had paid for under the terms of the contract, as the same was construed and detailed by the plaintiff. The suit was brought about one year and a half after the making the transaction which is [635]*635the subject of this suit; Newland had paid to Edrington, say $150, more or less. It is not shown that the rent up to the date of suit (December 13, 1877) was or was not fully paid, and, unless it was so shown, the plaintiff could not maintain this action, he not being entitled thereto until the money paid to him by Newland had been absorbed by the occupation of the premises.
There is,- therefore, no view which can be taken — even that most favorable to the plaintiff,— according to the evidence of any of the witnesses, which could have warranted a verdict for the plaintiff.
We conclude that the judgment ought to be affirmed, and reformed in the form thereof as has been indicated herein.
Affirmed and reformed.
[Opinion delivered October 31, 1882.]