G. R. Williams et al. v. John M. Warnell, Adm'r, &c., 28 Tex. 610

Coke, J. —There was manifest error in the ruling of the court below, sustaining the demurrer to the answer. The answer, it is true, is obnoxious to criticism. It does not deny directly the appointment of Warnell as administrator by the county court of Hill county, nor that he was the acting and recognized administrator; nor does, it state the facts constituting the fraud which is charged on him; nor does it as directly and specifically offer hack the title and possession of the land acquired by the purchase' as it should.

If these objections had been set up to the answer by special exceptions, it would have been proper to sustain them. But we are of opinion that they are not reached by general demurrer.

The legal effect of a general demurrer is to admit the facts plead to be true, but to deny that they constitute a cause of action or ground of defense. (2 Tex., 276.) And the only question which will be considered under it is, whether any cause of action or ground of defense is disclosed in the pleadings demurred to. (7 Tex., 517.) Consequently, if sufficient be stated to enable the court to see that a good cause of action or ground of defense exists, however defectively stated, the insufficiency or defectiveness of the averments cannot be taken advantage of on general demurrer.

The verdict and judgment cure.all defects, imperfections, or omissions in the pleading, whether of substance or form, if the issues joined be such as require proof of the facts imperfectly stated -or omitted, though it will not cure a statement of a defective cause of action or ground of defense. (De Witt v.

Miller, 9 Tex., 239.) The allegations of the answer in this case, admitted by the demurrer to be true, are, that Warnell falsely and fraudulently represented himself to be administrator of the estate of James Day, deceased, and as such administrator (the defendants believing in the truth of his representations) he sold to defendants a tract or lot of land belonging to said estate, for which they executed to him the note sued on; that Warnell was not the- administrator of said estate, that he had never given bond or taken the oath as such, and that letters of administration had never issued to him; that they have no title to the land purchased, which was the sole consideration of the note, and that the title thereto is outstanding in the heirs of James Day, deceased.

By reason of all which, they allege that the consideration of the note has wholly failed, and ask that the contract he rescinded. There is, as before remarked, some imperfection of statement in this answer, hut we think it clear that it discloses a good defense. Proof of all the omitted and defectively stated facts which may be necessary to constitute it a formally valid ground of defense would necessarily he made in proving those facts which are properly averred.

This answer, without violating that principle which requires the allegata and probata to correspond, is a sufficient predicate for the admission of all the evidence necessary to establish a good defense, for the admission of proof of all the defectively stated or omitted facts, and hence these defects would he cured by verdict. These principles are too well established in the adjudications of this court to need further elucidation or discussion. Because of the error of the court below in sustaining the demurrer to the answer in this case the judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.