Hirams & Donaho v. Coit, 1 Dallam 449

HUTCHINSON, Justioe.—The appellee filed his petition against the appellants, asserting title in a league of land in Tarquenton’s prairie between the Trinidad and San Jacinto; that his title began by occupancy as a frontier settler, which was consummated by a grant from Charles S. Taylor, special commissioner for putting into possession and issuing titles to settlers on the frontier; that the appellants by collusion and fraud procured a grant for the same league; and praying decree for the land and that the adverse title should be canceled.

There were plea, •nswer in chief, and response to interrogatories appended to the petition; documentary evidences of the conflicting titles, and oral evidence in several depositions. The cause was conducted as one in chancery and a decree rendered in favor of Coit for the land and vacating the defendants’ claim as fraudulent.

We have carefully inspected the whole, and though we are satisfied that the most if not all of the proof within the power of the parties is now before us, yet from the variety and occasional conflict of the evidence, we deem it safer and more conducive to a satisfactory determination of the controversy to remand the cause with directions to have tried, by a jury in the county where the land is situated, such issues as may seem best calculated to enable the court below to pronounce its decree.

It is therefore unnecessary to attempt a determination of the various and very important questions which- in a most impressive and able argument of the counsel have been urged. There was an objection made to the appeal bond, which, if sustainable, would have resulted in a dismission of the appeal. The statutes on the subject of such a bond are essentially remedial and must be liberally interpreted and applied.

The chief object of such a bond is to afford to a creditor, whose demand is adjudged or decreed, security and indemnity for the delay and expense of prolonged litigation; and hence it is required to be in double the amount adjudged or decreed. Here the petition avers the land to be worth $20,000; but its actual value is neither ascertained nor decreed, whilst the land itself is required to be restored, and that remains a permanent security for itself. There is no pecuniary measure for the penalty of the bond afforded by the decree except the costs, the intermediate rents not having been put into contest.

The omission of the name of an obligor in the body of a bond, when it is duly signed by him, although sometimes the subject of judicial cavil, forms no substantial objection to it. According to a clear and very impressive maxim of the Boman code, which when put in harmony with other important principles, should be of universal approbation—“as one binds himself, so shall he be bound.” His signature sufficiently assures us of his intention. Before awarding the issues contemplated, it is proper to declare a principle of equity practice, which in the trial of those issues ought to be observed by the court and jury.

To the petition are appended interrogatories to be answered by the defendants. Hirams answered them. In his reply to more than one, after responding to the subject of interrogation, he proceeds to introduce matter not introduced in the question; as, for example, he gratuitously introduces himself as the purchaser of John Berry’s improvement and occupancy. The well established rule is this, that what a party, in answer to discoveries prayed, responds directly in reference to the subject of the prayer or interrogation, it is to become evidence; the answer is then considered responsive and not excursive.

But when in the answer anything not embraced by the prayer or interrogation is obtruded, it is to be disregarded. It can not avail the respondent, unless he has an - equivalent allegation in his pleading and introduces proof aliunde to sustain the averment. One of the difficulties, that have prevented a decision of the cause in this court, is that the resolution of the Mexican government of April and August, 1828, referred to in the thirty-second

section of the Decree of Coahuila and Texas, No. 272, of March 26, 1834, can not be found to be consulted; and it is hoped the counsel may have access to them on a new trial.

This cause came on to be heard on the transcript of the record herein in the District Court of Liberty County; and the same being inspected and the arguments of counsel heard, because it seems to the court that sundry issues ought to be sent and tried by a jury in the said district court, it is therefore ordered and decreed by this court, that the decree rendered herein be set aside; that this cause be remanded; that the court below do submit to the verdict of a jury the following issues: 1.

To whom did John Berry transfer his improvement and occupancy of the land in controversy, whether to Campbell Berry or to the defendant Hirams; or whether he abandoned the land? 2. What title, if any, has the plaintiff to the land; is it fair and valid, or otherwise? 3. What title to the land has the defendant Donaho, if any; is it fair and valid or otherwise? 4. What effect, if any, had the agreement and relation between the defendants upon the title of Donaho?

Let the court below upon these issues instruct the jury as to the laws governing the matters involved, and by the aid of the verdict proceed to decree finally as to law and equity may appertain. It is also considered here, that all the evidence heretofore heard by the court below and sent up in the transcript, including the answers of Hirams that are responsive to the interrogatories to him, be used on the trial of the issues with such other oral testimony as the parties may produce. It is farther ordered and decreed here, that the appellants recover their costs in this behalf in this court.

Let this revisory decree be certified below for observance. Reversed and remanded.