Renfro v. Huling

2 Posey 279

Opinion

Opinion.—Held, the allowance or refusal of the court as to filing amendments rests largely in the discretion of the court, and while the appellate courts are strongly disinclined to revise the exercise of that discretion, yet such exercise must be according to law or it will be revised. Under the circumstances of this case the amendment should have been allowed to be filed. The deed in this case, unaided by extrinsic evidence, shows a sale in gross, the quantity of land being but a- matter of description. Held, in sales of land, though it might appear from a construction of the deed to be a sale in gross, yet, if in fact it was a sale by the acre, and so understood by the parties, and there is an unreasonable deficit, relief will be extended to the injured party unless he has in some way waived or forfeited his equity. 29 Tex., 312; 44 Tex., 455. The court’s charge submitted the issue as to the deficit in the tract, but not that as to the valley land, and it was error to refuse the special instruction asked covering this omission.

Reversed and remanded.