[C. L. (Charles Louis) and H. C. (Henry Clay) Watson both buried in Mexia]

Page 737


10 S.W. 737


DANIEL et al.
v.
WATSON.


Supreme Court of Texas.


February 8, 1889.

Appeal from district court, Freestone county.

Kirven, Gardner & Etheridge, for appellant.

STAYTON, C. J.

This action was brought by C. L. Watson, surviving partner of a firm originally 
composed of himself and H. C. Watson. It was brought to recover a balance 
alleged to be due on a promissory note for $1,430, given for the purchase of two 
tracts of land described in the petition, and together containing 703 acres. 
The petition alleged that $1,197 had been paid on the note, and that the 
vendor's lien on 500 acres of the land had been relinquished, and it only 
prayed for a foreclosure of the lien on 200 acres of the land. Whether the 
relinquishment of lien was on an undivided 500 acres, or upon a particular part 
of one of the tracts, or upon particular parts of each, was not averred. There 
was nothing in the petition to identify the land on which the lien had been 
released, nor to identify the 200 acres on which foreclosure was asked. The 
court below rendered a judgment for the balance due on the note, and established
a lien on the entire 703 acres, which it directed to be sold in satisfaction 
of the judgment. This is assigned as error. The petition did not state facts 
which identified the 200 acres on which the court was asked to establish and 
foreclose a lien, but upon its face did show that the plaintiff was not entitled
and did not seek to have a lien foreclosed on the entire lands for which the 
note was executed. It not furnishing a basis on which the relief sought could 
be granted, it was error to enter a judgment enforcing a lien on any part of 
the lands described in it; and the judgment is oppressive, in that it enforces 
a lien against land on which plaintiff expressly averred the lien had been 
extinguished, and against which he sought not to enforce any claim.

The judgment of the court below will be reversed, and, as there is nothing in 
the pleadings from which it can be here correctly entered, the cause will be 
remanded. It is so ordered.