
    COOMBES v. BRADFORD.
    (Court of Civil Appeals of Texas.
    Oct. 15, 1910.)
    Trespass to Tby Title (§ 34) — Appeal and ■'Ebbob — Judgment—Effect of Disclaimee.
    In trespass to try title, the plaintiff claimed damages for defendant’s wrongful use of the land, and by amended petition asked damages for the value of fences which the defendant had removed from the land. The defendant disclaimed title and pleaded to the jurisdiction of the court upon the claims for damages, and judgment was rendered awarding title to the plaintiff, hut dismissing the claims for damages. Held, that the defendant’s disclaimer of title did not divest the court of jurisdiction to try the issue of damages.
    [Ed. Note. — For other cases, see Trespass to Try Title, Dec. Dig. § 34.]
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Trespass to try title, with claim for damages, by Charles E. Coombes against C. W. Bradford. Judgment for plaintiff on the issue of title, and plaintiff appeals.
    Reversed and remanded.
    Coombes & Coombes and Woodruff & Wood-ruff, for appellant. Jas. A. Stephens, for ap-pellee.
    
      
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   DUNKLIN, J.

This suit was instituted in the.district court of Knox county on March 1, 1909, by Charles E. Coombes against C.‘ W. Bradford in the form of trespass to try title to recover 253% acres of land and also for the value of the use of the land during the time it was alleged defendant had wrongfully withheld it. Defendant filed a disclaimer of title to the land, hut claimed the right to occupy and use it under and hy virtue of a lease from S. T. Cooper, plaintiff’s vendor, which defendant alleged antedated plaintiff’s purchase and did not expire until September 1, 1909, and of which plaintiff had notice at the time of his purchase. Defendant further alleged that he had placed on the land certain improvements under an agreement with Cooper that he might remove the same at the expiration of his lease, and he prayed for Judgment for the use and possession of the land until the expiration of the lease, and for title and possession of said improvements. On September 13, 1909, plaintiff filed an amended petition in which it was alleged that, after the institution of the suit and after defendant filed his answer, defendant had wrongfully removed from the land certain fences of the value of $100, and plaintiff prayed for judgment for the value of the fences so removed, as well as for title to the land and for $100 as the rental value thereof during the time defendant had used it. On September 14, 1909, the defendant filed an exception challenging the jurisdiction of the court to hear and determine plaintiff’s claim for improvements and rents, inasmuch as the aggregate of the amount so claimed was less than $500, and inasmuch as the defendant had theretofore disclaimed title. The court rendered judgment, awarding plaintiff title to and possession of the land, but at the same time sustained defendant’s plea to the jurisdiction o>f the court to adjudicate plaintiff’s claim for damages, and from the judgment sustaining that plea, plaintiff has appealed.

It is well settled that in a suit in trespass to try title the plaintiff may sue, not only for the title, hut for damages. Sayles’ Ann. Civ. St. 1897, arts. 5270-5273. The damages claimed hy plaintiff were part and parcel of his cause of action, and the disclaimer of title filed by defendant clearly did not have the effect to divest the court of jurisdiction to try and determine that issue.

For the error in dismissing that claim, the judgment of the trial court is reversed, and the cause remanded for another trial.  