Smith v. Tucker

25 Tex. 594

• Court: Texas Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Wheeler, C. J.

There is the same defect in the verdict in this case as in the case of Mays v. Lewis, 4 Tex. R., 38.

It does not find the facts essential to support the judgment, but refei’s the court to the evidence given upon the trial to render certain the finding of the jury. In Mays v. Lewis it was held that no judgment could be rendered upon a verdict which found for the plaintiff “ the full amount specified in the promissory 3iotes adduced in the case,” because the verdict referred to the evidence to ascertain the amount found by the jury, and could not be rendered certain by reference to the pleadings. The verdict in this case finds for the plaintiff “ the land described in the petition, less seven hundred sixty-seven and a half acres, as described in the deed read in evidence from B. F. Hooper to 0. M. Adams.” The pleadings contain no description of the land conveyed by this deed, and hence it became necessary for the court to look outside of the ve3-dict and the pleadings to the evidence given upon the trial for the facts upon which to render judgment. The deed from Hooper to Adams must be looked to to help out the verdict and render it certain what part of the land it was the jury meant to Í3iclude in theit finding for the plaintiff. It was the land desC3’ibed in the petition, less seven hundred and sixty-seven and a half acres, but out of what part of the tract, or by what boundaries the land thus excepted out of the findings for the plaintiff should be taken, and consequently by what boundaries or description the court should give judgment for the plaintiff for the residue, could only be ascertained by reference to the deed. It is plain, therefore, that the court gave judgment upon the evidence, and not upon the verdict. It is the province of the jury to find the facts from the evidence, and of the court to give judgment upon the findings of the jury. There can be nothing clearer or better settled than that a verdict, which is not so -certain that the court can give judgment upon it without looking out of the record to the evidence given upon the trial, will not support a judgment. As the verdict in this case has not such certainty, it results that the judgment must be reversed and the cause remanded for a new trial.

We observe that the statement of facts has not the approval of the presiding judge, as the statute requires. (O. & W. Dig., Art. 548.) This omission was probably an oversight. But it may be that the statement was not, in fact, approved. And in the present state of the record, we do not think proper to revise the charge of the court, or the other questions sought to be raised upon the record.

As the question of the right of abandonment by Hooper, is a question vital to the cause and which must almost necessarily arise upon another .trial, it is proper to say that we concur with the court below in the opinion that, after selling and conveying away portions of the land embraced in his survey, Hooper had not the right to abandon his location, and sell or otherwise dispose of the certificate in prejudice of the rights of his former vendees. The sale of the certificate did not carry with it the right to the land, as that was not in contemplation of the parties, and was not intended to be conveyed. At most, it conferred the right to appropriate so much of the survey as had not already been disposed of by Hooper, and no such attempted appropriation is shown. If it was competent for Hooper thus to transfer the right to the certificate as between himself and his vendee, a subsequent purchaser of the land, without notice, would be unaffected by it.

The judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.