majority">Station, Associate Justice.

This suit was brought by Valeriano Ramirez against Margarito Sanchez on the 30th March, 1880.

The petition is- in the usual form of petitions in suits of trespass to try title, but in addition to the averments usual in such petitions, it is alleged that the defendant claimed under an instrument upon its face purporting to be an absolute deed to the property in controversy, which on the 29th day of August, 1877, was executed by the plaintiff, to the defendant, which instrument, it was alleged, was intended only as a mortgage to secure a debt then due from Ramirez to Sanchez, a part of which, it was alleged, had been paid, leaving a balance due to Sanchez of $115.32.

It seems that Sanchez had been in possession of the property, and $228 was claimed as rent therefor; for which sum, less the sum admitted to be due to Sanchez, plaintiff asked judgment, as well as for the recovery of the land sued for.

The defendant answered: 1st. By a plea of not guilty. 2d. Former judgment rendered between the same parties in an action similar to the present, and involving the title to the same property, which judgment was rendered in the district court for Webb county at the October term of that court for the year 1879. 3d. Improvements in good faith.

There was an exception filed to the plea of former judgment, • which, upon hearing, was sustained by the court, and a trial was had which resulted in a judgment in favor of the plaintiff for the land, and annulling the deed made by Ramirez to Sanchez, and also for the sum of $150, same being excess of damage found due to plaintiff over the indebtedness to the defendant.

A remittitur of $37.32 of this judgment was made.

There is no statement of facts, and only two assignments of error. The first questions the propriety of the ruling of the court in sustaining exceptions to defendant’s plea of former judgment. *313The plea upon its face shows that the former suit was substantially a suit of trespass to try title, between the same parties and in reference to the same matter, and also that the present suit was brought within less than a year after the former judgment.

It is claimed, however, that the statute in force prior to the adoption of the Revised Statutes (Pasch. Dig., 5298) has no application to this cause, for the reason that in the former suit, upon the pleadings of the defendant, a judgment was rendered in his favor quieting his title to the property now in controversy. We are of the opinion that this is not an open question in this court. In the case of Magee v. Chadoin, 44 Tex., 494, it appeared that the judgment set up by Chadoin as a bar to the second suit by Magee was rendered in his favor upon pleadings filed by him as a defendant, setting up title in himself and praying for a decree divesting Magee ánd the others of title to the property in controversy; and it was held that the former judgment in favor of Chadoin interposed no bar to the second suit by Magee. We see no reason to doubt the correctness of this decision, which seems to be in harmony with the spirit of the statute allowing the second suit.

Any other rule would place it in the power of the defendant, by his manner of pleading, upon, failure of a plaintiff to show sufficient title in the first suit, practically to repeal the statute.

In the case of H. & T. C. R. R. Co v. McGee, it was held that a judgment in favor of a defendant in a suit of trespass to try title, that the plaintiff take nothing by its suit, and that the defendant be quieted in his possession of the land described in plaintiff’s petition, and that defendant have and recover of the plaintiff all right, title and interest in and to the land, the defense consisting of the plea of “ not guilty,” did not interpose any obstacle to a second suit. The case of Blessing v. Edmonson, 49 Tex., 336, contains also "an intimation that the form of the judgment in favor of a defendant does not affect the right of a plaintiff to a second suit. The question (the law having been changed by the Revised Statutes) will soon cease to be of any practical importance.

The first suit having been instituted prior to the adoption of the Revised Statutes, the second suit was properly brought. Hall v. Wooters, 54 Tex., 232.

The second assignment of errors calls in question the correctness of the judgment of the court in so far as it canceled the debt due from Ramirez to Sanchez. In this respect the court did not err; for the debt was paid by an appropriation of the damage due to the plaintiff, so far as ivas necessary for that purpose, and being so *314paid, the decree of the court canceling it could not operate to the prejudice of Sanchez. There being no error in the judgment, it is affirmed.

[Opinion delivered January 16, 1883.]

Affirmed.

Citation profile

How this case has been treated — in progress