Thomas Curry et al., Appellants, vs. John York et al., Appellees, 3 Tex. 357

Mr. Justice Wheeler, after stating' the facts, delivered the opinion of the court. For the appellants it is contended that the judgment ought to be reversed, for that, 1. The court erred in refusing the instructions asked. 2. The survey of the original grantee, Haynes, was. illegal aud void. 3. The verdict is illegal; the jury not being warranted in allowing and deducting from the value of the improvements the value of the use and occupation of the premises.

It is manifest that the correctness of the second and third propositions maintained in behalf of the appellants must depend upon the facts of the case as they appeared in evidence. But there being no statement of facts iu the record, we have no means afforded of investigating the merits of the controversy, or of ascertaining whether these propositions are well founded in point of fact. We cannot notice any evidence which may have been sent up in the record, unless certified or agreed to contain the facts of the ease. This we have repeatedly decided.

We are not informed by the record upon what ground the charge contained in the bill of exceptions was refused. That the objection which the defendants seem to have sought to urge would have been fatal to the action at the trial, or on motion in arrest of judgment, or on error, if clearly made out upon the record, we can entertain no doubt. That two persons holding distinct things by distinct titles, or holding each, in severalty, distinct moieties of a league of land, cannot maintain a joint action for an injury done to the moiety of either, or both, is quite too clear for controversy or doubt.

And did it appear that such was the case in the present instance, we have no doubt that, whenever discovered, it would defeat the action. But does it appear from the record before us that such was the case? The judge does not so certify. He only certifies that the defendants asked such a charge, and that he refused it. Had he certified that the fact was as recited by the defendants in the instruction asked, that would have given no information of a fact on which to predicate our judgment as to the propriety of the ruling of the court upon the law.

But it may be that the instruction was refused for the reason that it did not present, accurately, the facts as they appeared to the court. It may be that there- was other evidence which counteracted the effect of that recited, and which showed a joint ownership in the plaintiffs in the lands in controversy, at the time of the institution of the suit.

We are bound to indulge every presumption in favor of the judgment, and we have repeatedly decided, that, where there is no statement of facts, we must presume, in support of the judgment, everything to have been proved which was susceptible of legal proof under the pleadings. That a joint interest in plaintiffs may have been proved in the present instance, by e-onveyances subsequent to the deeds in question, is apparent.

And, in the absence of anything appearing in the record to the contrary, under the settled law and practice of the court, we are required, in support of the judgment, to indulge that presumption in the present instance. There being, in the record, no statement of facts, and no error apparent, we are of opinion that the judgment be affirmed.