Elizabeth Patrick v. Bracy E. Roach, Administrator, 27 Tex. 579

Moore, J. This was a suit by the appellee to recover from the appellant damages for the use and occupation of a tract of land. It was settled when this case was before this court on a former appeal, (21 Tex., 251,) that the plaintiff in the court below could only claim damages for the use and occupation of the premises subsequent to the 22d of April, 1856, the date of the recision of the contract under which John M. Patrick, the husband of the appellant, entered into possession of the land.

It is equally clear that appellee’s right to claim damages, by reason of the detention of possession by appellant, ceased when the estate in right of which this suit is prosecuted, parted with its title to the land, unless there was a special reservation to this effect at the time of the sale. If by the terms of the sale the right to the possession and the use and enjoyment of the premises was reserved to the estate to as late a day as that on which this suit was instituted, appellee could unquestionably have recovered for the use and enjoyment of the land down to that time.

There was no testimony, however, before the jury from which they were authorized to infer that such were the terms upon which the land was sold; we think, therefore, the charge of the court based upon this hypothesis calculated to mislead the jury, and was consequently erroneous. The release from Crump, the purchaser at this sale, was also improperly admitted in evidence. It does not tend to prove that the purchaser did not acquire by the terms of the sale an immediate right to the possession of the land.

If such was the understanding at the time of the sale, it seems singular that there should have been no effort to have proved it by the purchaser, who was examined as a witness by the appellee. The release can only be considered as a declaration by the purchaser that he had never claimed anything for the rent or use of the land prior to the first of January subsequent to his purchase; and if he was entitled to anything on this account, that he relinquished the same to the appellee.

Whatever rights the appellee may have acquired by this release, she could only have enforfeed them in this case by an amendment off her petition, setting up this as a new and additional cause of action. This she failed to do, and the release was. therefore improperly permitted to go, as evidence, to the jury. The jury were instructed that they might find a verdict against appellant individually, unless they believed she occupied and carried on the plantation for the benefit of the estate, and had accounted for the profits arising from its cultivation. We are of the opinion that this charge is incorrect.

It assumes as a fact that the appellant was either individually, or as administratrix of her deceased husband, in the possession and use of the plantation. Whatever may be said as to the weight of testimony on this point, it was a matter in issue in the case, and could not be assumed as a fact by the court. Again, if she were bona fide in possession of the land in her representative capacity, she could not be held individually liable in this Suit for a failure to account for the profits arising from the cultivation of the farm. Her responsibility for such default is primarily in the County Court.

Previous to the inception of the sale under which John M. Patrick’s estate was entitled to the possession of the land, appellant as his administratrix rented it for the ensuing year. This, however, could not affect the rights of the appellee after the title under which Patrick went into possession was cancelled by the decree of the court.

The suit for this purpose was pending when the land was rented by the appellant as administratrix of Patrick; the party renting was consequently chargeable with notice of it as Ms 'pendens, and was concluded by the decree rescinding the title under which he acquired his possession. Appellee might, therefore, as soon as she became entitled to the land under this decree, have demanded it from the party occupying it.

And if in fact the pretended renting was a mere pretext and sham, and the appellant was holding and using the property for the estate of her intestate, she could be held accountable in her representative character; or if in fact it was rented for her individually, and it was held and used either directly or indirectly for her individual account or benefit, she became individually responsible to the owner for the damages sustained by its illegal ■detention.

The fact that it was rented in the name of her son, and that he used negroes belonging to her for its cultivation, does not necessarily show that she had any interest in the premises, or that the plantation was carried on or cultivated by her, or on her account. The judgment is reversed and the cause remanded. Reversed and remanded.