English v. Hutchins

2 Posey 407

Opinion

Opinion.— The appellant assigns as error the overruling of defendant’s demurrer and special exceptions to the , plaintiff’s amended petition. The plaintiff’s action was plainly a suit to try the title to the land, and where that is the case it is in effect an action of “trespass to try title,” and it is not essential to constitute it such that the technical allegations of actual trespass and ouster, as urged in the defendant’s special exceptions, shall be made in conformity to the rules applicable to actions of ejectment at common law. The plaintiff in his petition alleged ownership and set out the title under which he claimed; he alleged possession by the defendant, and prayed for restitution of possession and for general relief. These elements were sufficient to constitute it an action of trespass to try title. See Grimes v. Hobson, 46 Tex., 416; Dangerfield v. Paschal, 20 Tex., 537; Sheppard v. Cummings, 44 Tex., 503.

Appellant’s third ground of assigned error is that the court erred in admitting in evidence, over defendant’s objec-' tion, an agreement signed by the San Marcos Milling & Manufacturing Company. The objection urged was on the ground in effect that it did not purport to be the authorized act of the defendant or a company of persons under the name affixed or signed to it. Under the issues in the case there was no error in admitting it. The only remaining question is as to whether there was evidence of the required notice of the sale under the deed of trust. According to dates written on notices there were only twenty-nine days, but Hutchins testified that .they were issued on the day preceding that date, thus making thirty days. Parol evidence was admissible for- that purpose. The charge of the court was correct. From a due consideration of all the questions presented by the assignment of errors there is no such error for which the judgment ought to be reversed.

Judgment affirmed.