1. Pleadings — Practice — Demurrer. — In passing upon demurrers to a petition, the averments in the answer may also be considered. In this case the defendants, in the answer, asserted title to the land alleged by the plaintiffs to be clouded by such assertion of title to it, under calls for course and distance in certain deeds; when the land had been sold and subsequently held by an actual survey enclosing less than such calls.
2. Cause of Action, When — Stale Demand. — In a deed recorded for over thirty years were calls for course and distance in excess of the land actually surveyed and sold. After the execution of the deed, the vendees claimed to the limits of the actual survey until within a year before suit. Held, that a suit to remove the cloud made by the deed, and by the claim of ownership under it, was not a stale demand; right to sue did not exist until claim was asserted.
3. Cause of Action. — A petition alleging the execution of the deed with mistaken calls for course and distance, the recent assertion of claim according to such calls, when the land had been sold and held by actual survey, with alleged injury resulting from such claim beyond the actual survey, shows cause of action, and a demurrer was improperly sustained.
KEY, ASSOCIATE JUSTICE.
In our opinion, the District Court erred in holding that plaintiffs' petition failed to state a cause of action, and in sustaining defendants' demurrers thereto and dismissing the cause.
The averments of the petition are sufficient, if true, to entitle plaintiffs to a judgment removing cloud from title. These averments, in so far as they relate to the action of defendants in asserting title to the property in controversy, are aided and confirmed by the defendants' answer filed herein, claiming title to the property under the very deeds in which, the plaintiffs charge, the calls for distance are incorrectly stated. In passing upon demurrers to a petition, the averments in the defendant's answer may also be considered. Day Land and Cattle Co. v. The State, 68 Tex. 536.
It is true that the first deed in which the alleged mistake in the length of lines occurred was executed and recorded more than thirty years before the institution of this suit; but the petition alleges that all persons claiming under said deed and other deeds containing the same mistake, including John M. Pope, the ancestor of defendants, and under whom they claim, admitted that said deeds only embraced ten acres of land, and did not include the land in controversy; that they acquiesced in the title and claim of plaintiffs and those under whom they claim to the land in controversy, as did also the defendants, until about one year before the institution of this suit.
Under these circumstances, we do not think the plaintiffs' right to maintain the suit is barred as a stale demand.
The vendees, to whom the several deeds were made containing mistakes in length of lines, had the right to place their deeds on record; and the mere facts of the mistake in the deeds and their registration (when considered in connection with the further fact that those holding under them conceded that they did not include the land in controversy and acquiesced in the claims of plaintiffs and those under whom they claim) did not constitute such a cloud on the title to the land in controversy as would have authorized a suit to remove it. But when, in connection with the registration of the deeds, those claiming under them began asserting title through said deeds to the land in controversy, a cause of action arose; and, according to the allegations in the petition, this was only about a year prior to the commencement of this suit.
Such being the case, laches is not imputable to the plaintiffs, and they are not precluded from maintaining the suit. If the averments of the petition be true, it can not be denied that the defendants, by placing a false, but apparently true, construction on the deeds spread upon the records of the county in which the land is situated, have prevented the plaintiffs from disposing of the land in the manner they desired, and for its full value.
To prevent a continuance of these wrongs and enable the plaintiffs to enjoy the full benefit of their property, if the facts be as alleged, they are entitled to a judgment which will satisfy persons desiring to purchase the land that the defendants' pretended and apparent title is in fact worthless, and that the plaintiffs are the true owners of the land.
The judgment of the court below will be reversed and the cause remanded for further proceedings in accordance with the law announced in this opinion.
Reversed and remanded.