W. W. Walker v. J. H. Burks, Adm'r, &c., 48 Tex. 206

Roberts, Chief Justice. It is obvious, from a consideration of the whole case as it is presented in the record, that the plaintiff had no good ground for suing out the injunction, and that the same should have been dissolved and the petition dismissed upon the exceptions of defendant. -The allegation that the administrator represented, in a general way, that the estate had a good title to the land being sold, with nothing more alleged to show any deception intended or accomplished on his part, was not sufficient to set aside the sale. The allegations of an offset to the note constituted no defense to it.

The judgment set up constituted no specific lien upon the land, and there were no facts stated in the petition which showed a right in the plaintiff, on account of being the owner of the judgment, to arrest the ordinary course of proceedings in the administration of the estate in the Probate Court. Appellant complains that the judgment of the court goes beyond what was sought by either or both of the parties, as indicated in their pleadings. That maybe so. But the question here is,—Has the appellant complained of anything in the judgment that is to his prejudice ?

The appellee has not assigned errors, and seems to be satisfied with the judgment. The appellant does not complain that the court rendered a judgment for him for the land, and for part of the costs, but that the court rendered a judgment against him, and in favor of appellee, on the note, when the appellee had not declared on the note in his answer, and had not adduced it in evidence before the court on the trial.

The answer to this is, that appellant brought a suit in the-nature of a bill in equity; that he set out the substance of the-note'and the object of its execution, and sought, upon facts-stated, to have an offset allowed to part of the note, if he did not get rid of the payment of the note entirely, and to stop the sale of the land, being then about to be made under a deed of trust given by him to secure the payment of the note. The appellee pleaded other facts in answer to those set up by the appellant, and prayed for judgment in his favor for the amount due upon the note.

Had the offset been allowed: as claimed by the appellant, the court must have rendered a judgment for the balance on the note, or otherwise settled the equities between the parties, with reference to the note, set up by the appellant.

The note being the main matter in controversy involved in this equitable proceeding, and being correctly stated by the appellant, and the appellee so recognizing it by asking judgment upon it upon a trial of the case ' upon its merits, it was unnecessary for the appellee either to-set out the note and formally declare on it in his answer, or to offer it in evidence, being- admitted in the pleadings, and: no question being raised upon its existence, execution, or-ownership. Affirmed..