Stone v. Darnell

Texas Supreme Court October 15, 1860

Stone v. Darnell, 25 Tex. 430 (Tex. 1860)

Wheeler

Opinion of the Court

Wheeler, C. J.

—When the defendant recovered back the land by the judgment of a court of competent jurisdiction, the right of the plaintiff to have the money he had paid, and which had been applied to the satisfaction of the execution, refunded, was perfect. (Townsend v. Smith, 20 Tex., 465.)

The plaintiff’s right, which he asserts in this suit, was not adjudicated or brought into litigation in the easel in the Kaufman District Court. Though a party may plead a demand in reconvention, he is not obliged to do so, nor is he precluded of his action by his failure so to plead.

The measure of the plaintiff’s damages was the purchase-money he had paid to the use of the defendant and interest. There was no error in the charge of the court.

*436There can be no question of the right of the plaintiff to dismiss as to the defendant, Haught. It is not perceived that there was any good objection to the competency of Haught as a witness at the call of the plaintiff; but that point need not be decided, since it does not appear that he was examined as a witness upon the trial, or, if examined, that he testified to anything that was material. It only appears that his competency was objected to on the score of interest, and that the court overruled the objection; but whether he was examined and testified does not appear.

There manifestly is no error in the judgment, and it is

Affirmed.

Reference

Full Case Name: B. Warren Stone v. William H. Darnell
Status: Published
Syllabus: Where the property of a defendant in execution was sold at sheriff's sale, and the defendant afterwards recovered it from the purchaser, on the gound that it was exempt from execution as his homestead, the purchaser has the right to recover back his money from the defendant in' execution, for whose benefit the money had been paid. The purchaser might have plead his right in reconventioh in the ejectment suit, but he was not precluded because he failed to do it. The measure of damages against the defendant in execution was the amount of money paid to his use. Where the sheriff was joined with a defendant, who set up a defense unfavorable to the sheriff, the plaintiff might properly dismiss, as to the sheriff, after answer. Where a bill of exceptions shows that objections to the competency of a witness were overruled, the record should also show that he swore to something material, or the point will not be reviewed.