¶1This is an action of trespass to try title.
¶2The defendant pleaded not guilty.
¶3Judgment was rendered in favor of plaintiff for the recovery of the land and for the value of its use and occupation from the date of the filing of the original petition.
¶4The only question raised by the assignment of errors relates to the judg. ment for the value of the use and occupation of the land.
¶5It appears from a bill of exceptions that no evidence was introduced to show that defendants had ever been in the actual occupancy of the land, but the court held that their plea of “ not guilty” was sufficient to charge them with possession for the purposes of the judgment from the time of the institution of the suit.
¶6We are unable to concur in this conclusion.
¶7The Revised Statutes direct that in the action of “trespass to try title,” among other things, the petition shall state that the plaintiff “was in possession of the premises or entitled to such possession.”
¶8Other articles read as follows: “ Article 4794. Such plea (‘ not guilty ’), or any other answer to the merits, shall be an admission by the defendant, for the purpose of that action, that he was in possession of the premises sued for, or that he claimed the title thereto at the time of commencing the action, unless he states distinctly in his answer the exact extent of his possession or claim, in which case it shall be an admission to such extent only.”
“Article 4808. Upon the finding of the jury, or of the court where the case is tried by the court, in favor of the plaintiff for the whole or any part of the premises in controversy, the judgment shall be that the plaintiff recover of the defendant the title or possession, or both, as the case may be, of such premises, describing them, and where he recovers the possession, that he may have his writ of possession.
“Article 4809. When it is alleged and proved that one of the parties is in possession of the premises, the court or jury, if they find for the adverse party, shall assess the damages for the use and occupation of the premises; and if special injury to the property be alleged and proved, the damages for such injury shall be also assessed.”
¶9We think the necessary construction of these provisions of the law is that the admission of possession by the answer authorizes only a recovery of the title and possession of the land, but that damages for the use and occupation of the premises can be recovered only when the facts authorizing such recovery are alleged and proved as other issues are required to be.
¶10The judgment is reversed and the cause is remanded.
¶11Reversed and remanded.
¶12Delivered January 17, 1890.
¶13Chief Justice Stayton not sitting.