
    Akinson et al. v. Ward et al.
    Trespass to try title.— Variance between verdict and judgment held fatal. ■
    Appeal from Gonzales county. Opinion by Walker, P. J.
    Statement.— Ward alone sued; the amended petition showed that certain heirs owned jointly with himself the land in controversy, he owning one-third only. He prayed for judgment quieting his title to the undivided one-third interest, and for a writ of possession evicting defendants from the premises. The verdict was rendered in favor of Ward alone, and upon the verdict judgment was rendered in 'favor of Ward and the heirs and joint owners with Ward.
   Opinion.— Held, a judgment of this character was not warranted by the verdict. It was not authorized under either the petition or the verdict.

The plaintiff Ward only was entitled to recover. The trial was had under the Ee vised Statutes, and under the allegations of the petition Ward alone could recover his own individual one-third. It was held in Stovall v. Carmichael, 52 Tex., 390, that before the Ee vised Statutes, if the tenant in common instituted a suit for trespass to try title for recovery in his own behalf of an undivided interest, he wrould be entitled by a judgment in his favor to no more than to be placed in possession with defendant. Since the Eevised Statutes, however, one can only recover his portion as sued for and distinctly stated in the petition and pleadings. See Grothaus v. De Lopez, 57 Tex., 670.

Ee VERSED AND REMANDED.  