Wheeler, C. J.
The defence mainly relied on was the statute of limitations. Tim plaintiff relies on two grounds as an answer to this defence. He insists, first, that his case is within the exception to the running of the statute in favor of alien heirs; and, secondly, that the running of the statute was interrupted by the former suit, brought in 1847. The court sustained the ease of the plaintiff upon both grounds; and the question to be determined is whether these rulings of the court were correct.
Upon the first point we are of opinion that the evidence was not sufficient to warrant the court in applying to the case the exception in favor of alien liens. Granting that it sufficiently appears that the parents of Henry L. Lane, the grantee, were his heirs, there is no evidence that they were aliens at the time of the descent cast. There is no proof of their assumed alienage. It is scarcely necessary to say, that the observation of the witness, Talbot, that Henry L. Lane told him shortly before his death, when about to start upon a journey, that “ he intended going to-Tennessee to bring out his parents to Texas,” is no evidence that his parents were aliens: and that is the evidence upon which the court must have proceeded in charging to the jury upon the effect of the supposed alienage of ti m heirs of Henry L. Lane, and in overruling the motion for a nowr trial. If it were proved that the parents of Henry L. Lane resided -in Tennessee at the time of his death, it would not follow that they were aliens. If persons of [365]*365foreign birth, it must appear that they were not residing in Texas on the day of the declaration of independence. (Const. Rep. Genl. Prov. Sec. 10.) The evidence was manifestly insufficient to amount to proof of alienage: and we are of opinion, therefore, that the court erred in the instruction to the jury upon that subject and in refusing the motion for a new trial; for which, the judgment must be reversed. In view of another trial it is material to decide the remaining question. And it is to be observed that the former suit was disposed of by the judgment of the court sustaining a demurrer to the petition. Is that such a decision of the case as the statute giving a second action contemplates ? We think not. The 7th section of the act providing the action of “trespass to try title,” gives a second action, to be instituted within one year, where verdict and judgment shall have passed against tire plaintiff in the first suit. (O. & W. Dig. Art. 2043.) Tlfis section of the act of 1840 was so amended by the act of 1844 as to provide that “ in case a verdict and judgment should pass ” against the plaintiff, and he should appeal to the Supreme court, and that court should decide against him, he shall have one year from the decision of the Supreme court to bring a second, action. (Id. 2049.) Both statutes speak of a verdict and judgment, and manifestly intend a decision of the case upon the facts, and a judgment upon the merits which, but for the statute, would be a bar to another action for the same cause. The present is not such a judgment. The effect of a judgment sustaining a demurrer in our practice is simply a dismissal of the suit, if the plaintiff fails to amend. It is the same whether the demurrer be general or special, and it has never been held to be a bar to the bringing of another suit for the same cause. Where a demurrer is sustained, the plaintiff has his election to amend, or to suffer the case to be dismissed and bring another suit supplying the deficiency in his former petition, or lie may appeal from the decision and have the judgment sustaining the demurrer revised, and if erroneous, corrected. It is the right of the plaintiff in all eases where a- demurrer is sustained, though it be a general demurrer, to amend, and thus obviate the effect of the demurrer. If he fails to amend, the consequence is that the case is dismissed. The dismission of [366]*366the case, therefore, is the immediate consequence rather of the failure to amend, than of the judgment upon the demurrer; and whatever the form of the judgment^ its effect, it is conceived, is the same. It operates a dismission of .the suit merely and is not a bar to another suit for the same cause, It manifestly is not such a decision of the case upon the merits as the statute providing a second action contemplates. The former suit not having been prosecuted to a final decision and judgment upon the facts and merits of the case, is not within the provision of the statute giving a second action.
In the case of Dangerfield v. Paschal, 20 Tex. R., 536, the decision of the merits of the case upon the facts was submitted to the court upon a demurrer to evidence. The jury were discharged and the decision of the court substituted for the verdict of the ■jury. The effect of the judgment was the same as if it had been rendered upon a verdict. It was very different from a judgment upon a demurrer to the petition.
The effect of the decision sustaining the demurrer being merely the dismission of the case, a further consequence is that the suit did not interrupt the running of the statute of limitations. In the case of Shields v. Boone (22 Tex. R., 193) we decided that where a nonsuit was taken by the plaintiff, the suit did not interrupt the -running of the statute. And the doctrine is the same where the nonsuit is not voluntary, but is by the "judgment of the court. (Angell on Lim., Sec. 328.) The principle of the rule ■applies equally to the present case. It was the fault of the plaintiff that he did not prosecute his former suit to effect. If his petition was defective he should have amended, and thus have .obviated the consequence of the decision upon the demurrer; if not defective, he should have prosecuted his appeal or writ of error to effect, and obtained a reversal of the judgment sustaining the demurrer. But he failed • to appeal, and though he obtained a writ of error he failed to prosecute it, and by his neglect suffered ■the defendant to have the judgment affirmed without reference to the merits. If the running of the statute could be -thus interrupted and suspended, the spirit and policy of -the statute, which [367]*367declares that “In all actions of trespass to try titles to lands, commenced within the time limited by law, the plaintiff shall proceed with all convenient expedition to the trial of the same,” (O. & W. Dig., Art. 2043) might certainly he defeated.
The failure to prosecute the suit to a decision on the merits, was as much the fault or negligence of the plaintiff as if he had suffered a nonsuit, or had suffered the case to be dismissed for the want of prosecution, and it is conceived the consequence must' be the same. The decision sustaining the demurrer and the failure to amend, being, in effect, a dismission of the suit, it is as if no Suit had in fact been brought. The running of the statute was not interrupted, but, having commenced, it continued to run down to the time of bringing the present suit.
The question of pleading discussed in argument, that is, whether it was necessary in this action for the plaintiff to reply to the plea of the statute the exception relied on to take the case out of its operation, is not properly presented by the record for decision. If evidence had been offered by the plaintiff to prove the alienage of his vendors, with a view to bring the case within the exception of the operation of the statute in favor of alien heirs, the defendant might have raised the question of the necessity of pleading the exception, by objecting to the admission of the evidence the want of a foundation for its introduction in the pleadings.
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Wheeler, C. J.
The defence mainly relied on was the statute of limitations. Tim plaintiff relies on two grounds as an answer to this defence. He insists, first, that his case is within the exception to the running of the statute in favor of alien heirs; and, secondly, that the running of the statute was interrupted by the former suit, brought in 1847. The court sustained the ease of the plaintiff upon both grounds; and the question to be determined is whether these rulings of the court were correct.
Upon the first point we are of opinion that the evidence was not sufficient to warrant the court in applying to the case the exception in favor of alien liens. Granting that it sufficiently appears that the parents of Henry L. Lane, the grantee, were his heirs, there is no evidence that they were aliens at the time of the descent cast. There is no proof of their assumed alienage. It is scarcely necessary to say, that the observation of the witness, Talbot, that Henry L. Lane told him shortly before his death, when about to start upon a journey, that “ he intended going to-Tennessee to bring out his parents to Texas,” is no evidence that his parents were aliens: and that is the evidence upon which the court must have proceeded in charging to the jury upon the effect of the supposed alienage of ti m heirs of Henry L. Lane, and in overruling the motion for a nowr trial. If it were proved that the parents of Henry L. Lane resided -in Tennessee at the time of his death, it would not follow that they were aliens. If persons of [365]*365foreign birth, it must appear that they were not residing in Texas on the day of the declaration of independence. (Const. Rep. Genl. Prov. Sec. 10.) The evidence was manifestly insufficient to amount to proof of alienage: and we are of opinion, therefore, that the court erred in the instruction to the jury upon that subject and in refusing the motion for a new trial; for which, the judgment must be reversed. In view of another trial it is material to decide the remaining question. And it is to be observed that the former suit was disposed of by the judgment of the court sustaining a demurrer to the petition. Is that such a decision of the case as the statute giving a second action contemplates ? We think not. The 7th section of the act providing the action of “trespass to try title,” gives a second action, to be instituted within one year, where verdict and judgment shall have passed against tire plaintiff in the first suit. (O. & W. Dig. Art. 2043.) Tlfis section of the act of 1840 was so amended by the act of 1844 as to provide that “ in case a verdict and judgment should pass ” against the plaintiff, and he should appeal to the Supreme court, and that court should decide against him, he shall have one year from the decision of the Supreme court to bring a second, action. (Id. 2049.) Both statutes speak of a verdict and judgment, and manifestly intend a decision of the case upon the facts, and a judgment upon the merits which, but for the statute, would be a bar to another action for the same cause. The present is not such a judgment. The effect of a judgment sustaining a demurrer in our practice is simply a dismissal of the suit, if the plaintiff fails to amend. It is the same whether the demurrer be general or special, and it has never been held to be a bar to the bringing of another suit for the same cause. Where a demurrer is sustained, the plaintiff has his election to amend, or to suffer the case to be dismissed and bring another suit supplying the deficiency in his former petition, or lie may appeal from the decision and have the judgment sustaining the demurrer revised, and if erroneous, corrected. It is the right of the plaintiff in all eases where a- demurrer is sustained, though it be a general demurrer, to amend, and thus obviate the effect of the demurrer. If he fails to amend, the consequence is that the case is dismissed. The dismission of [366]*366the case, therefore, is the immediate consequence rather of the failure to amend, than of the judgment upon the demurrer; and whatever the form of the judgment^ its effect, it is conceived, is the same. It operates a dismission of .the suit merely and is not a bar to another suit for the same cause, It manifestly is not such a decision of the case upon the merits as the statute providing a second action contemplates. The former suit not having been prosecuted to a final decision and judgment upon the facts and merits of the case, is not within the provision of the statute giving a second action.
In the case of Dangerfield v. Paschal, 20 Tex. R., 536, the decision of the merits of the case upon the facts was submitted to the court upon a demurrer to evidence. The jury were discharged and the decision of the court substituted for the verdict of the ■jury. The effect of the judgment was the same as if it had been rendered upon a verdict. It was very different from a judgment upon a demurrer to the petition.
The effect of the decision sustaining the demurrer being merely the dismission of the case, a further consequence is that the suit did not interrupt the running of the statute of limitations. In the case of Shields v. Boone (22 Tex. R., 193) we decided that where a nonsuit was taken by the plaintiff, the suit did not interrupt the -running of the statute. And the doctrine is the same where the nonsuit is not voluntary, but is by the "judgment of the court. (Angell on Lim., Sec. 328.) The principle of the rule ■applies equally to the present case. It was the fault of the plaintiff that he did not prosecute his former suit to effect. If his petition was defective he should have amended, and thus have .obviated the consequence of the decision upon the demurrer; if not defective, he should have prosecuted his appeal or writ of error to effect, and obtained a reversal of the judgment sustaining the demurrer. But he failed • to appeal, and though he obtained a writ of error he failed to prosecute it, and by his neglect suffered ■the defendant to have the judgment affirmed without reference to the merits. If the running of the statute could be -thus interrupted and suspended, the spirit and policy of -the statute, which [367]*367declares that “In all actions of trespass to try titles to lands, commenced within the time limited by law, the plaintiff shall proceed with all convenient expedition to the trial of the same,” (O. & W. Dig., Art. 2043) might certainly he defeated.
The failure to prosecute the suit to a decision on the merits, was as much the fault or negligence of the plaintiff as if he had suffered a nonsuit, or had suffered the case to be dismissed for the want of prosecution, and it is conceived the consequence must' be the same. The decision sustaining the demurrer and the failure to amend, being, in effect, a dismission of the suit, it is as if no Suit had in fact been brought. The running of the statute was not interrupted, but, having commenced, it continued to run down to the time of bringing the present suit.
The question of pleading discussed in argument, that is, whether it was necessary in this action for the plaintiff to reply to the plea of the statute the exception relied on to take the case out of its operation, is not properly presented by the record for decision. If evidence had been offered by the plaintiff to prove the alienage of his vendors, with a view to bring the case within the exception of the operation of the statute in favor of alien heirs, the defendant might have raised the question of the necessity of pleading the exception, by objecting to the admission of the evidence the want of a foundation for its introduction in the pleadings. And it would seem that the objection must have been sustained. It is only where the defendant introduces evidence under the plea of “not guilty” in the action of trespass to try title, in support of defences of which he has not given notice by his pleading, that the plaintiff is allowed to introduce evidence in avoidance of such defence without pleading the matter of avoidance. And this arises from the necessity of the case. The plaintiff cannot be required to plead to meet defences of which he has not had notice by, the pleading of his adversary. But the statute of limitations can not be given in evidence under the plea of “not guilty,” as other defences may. It must be pleaded specially in this as in any other action. And there is therefore the same -reason to require/ the plaintiff to reply to any exception on which he may rely as an answer to the statute -in this as in any other action.
[368]*368We áre of opinion that the judgment be reversed and the cause remanded for further proceedings.
Reversed and remanded.