Hannay v. Thompson
Texas Supreme Court
Appeal from. Harris. Action of trespass to try title. Defendant pleaded not guilty. On the trial the defendant admitted title from the State to the plaintiff and gave in evidence an absolute deed of conveyance of the property, and possession under it, from the plaintiff.
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Appeal from. Harris. Action of trespass to try title. Defendant pleaded not guilty. On the trial the defendant admitted title from the State to the plaintiff and gave in evidence an absolute deed of conveyance of the property, and possession under it, from the plaintiff. Whereupon the plaintiff offered to introduce parol evidence to show that the conveyance was executed to secure the payment of borrowed money ; to which the defendant objected on the ground that there was no averment of such fact, or of the mortgage, in the plaintiff’s pleadings ; and because there was nothing in the…
1Opinion of the CourtWheeler, J.
If the defendant had pleaded his title specially under the decisions of the Court, (Rivers v. Foot, 11 Tex. 662; Paul v. Perez, 7 Id. 338,) the plaintiff might have been required to give notice by pleading, of the intention to show by parol evidence that the absolute conveyance under which the defendant claimed and held possession, was a mortgage. But as the conveyance was not pleaded, and the plaintiff had not notice of the title under which the defendant claimed, she was not bound to anticipate his defence, or the evidence he would adduce in support of it, and had the right to rebut such…
2Cases cited1 opinion
- Rivers v. FooteTexas Supreme Court · 1854
3Cited by21 opinions
- Jasper State Bank v. BraswellTexas Supreme Court · 1938
- Duke v. ReedTexas Supreme Court · 1885
- Loving v. MillikenTexas Supreme Court · 1883
- Calhoun v. LumpkinTexas Supreme Court · 1883
- McSween v. YettTexas Supreme Court · 1883
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