Walton v. Talbot

1 Posey 511, 1880 Tex. LEXIS 212

• Court: Texas Commission of Appeals
• Decided: June 21, 1880
• Docket: Case No. 3536
• Status: Published

Opinion

Quinan, J.

We are of opinion that this assignment is well taken.

Whatever may be said of the imperfection of the pleadings of the heirs of Hughes, who were called in and made parties by the defendants, it cannot be doubted that the petition of Walton, administrator of Hughes, set up a good cause of action, entitling him to recover, if the averments were sustained by the proof. It certainly did not show on its face that the right of recovery was barred by limitation, and consequently the defense of limitation could not be set up by demurrer against it.

Nor did the pleadings of the heirs vitiate that of the administrator. However inconsistent or repugnant their alie*gations may be, they could not have the effect of annulling what he had sufficiently alleged. Smith v. McGaughey, 13 Tex., 464.

[Opinion delivered June 21, 1880.]

For this cause the judgment must be reversed. It is unnecessary to comment upon the sufficiency of the allegations of the heirs in their petition, or to determine whether the claim, as stated by them, is subject to demurrer as a stale demand. The agreement or contract between Hughes and Mudd is not before us, and we can express no opinion whether it was executory or substantially executed. The facts in connection with it can be developed on the trial. Bell v. Warren, 39 Tex., 106. We need only say that if it should become necessary to avoid the defense of stale demand by proof, general allegations of absence, fraud, concealment, minority and coverture, are altogether too loose and indefinite. Story’s Equity Pleadings, sec. 814.

The judgment will be reversed and the cause remanded.

Bevbrsed and remanded.