Pouns v. Zachery

KEY, Associate Justice.

O. C. Pouns instituted this suit in the form of an action of trespass to try title. Zachery, the defendant, filed a disclaimer as to part of the land and pleaded not guilty as to the remainder. The court rendered judgment for the defendant as to all the land sued for, and the plaintiff has appealed and presents the case in this court on two assignments of error.

Tinder the first assignment the contention is made that the plaintiff was entitled to recover because he put in evidence a judgment establishing his right to an easement in the land. Appellant sued in trespass to try title, asking for a recovery of the land, and did not in his petition show that he was entitled to a decree protecting him in his easement. As the case was presented, appellant was not entitled to recover anything on account of the judgment referred to. (Cornick v. Arthur, 73 S. W. Rep., 410 .)

Under the second assignment it is contended that "the plaintiff was entitled to judgment against the defendant for that portion of the land included in the defendant’s disclaimer. That contention is correct. The judgment of the court below will be reversed and judgment here rendered for appellant Pouns for that portion of the land as to which appellee disclaimed- title. As to the land claimed by appellee in his answer, and not included in his disclaimer, judgment will be rendered for him. The costs of the lower court will be taxed against appellant, and those of this court against appellee.

Reversed and rendered.