
    OKLAHOMA CITY & T. R. CO. v. MAGEE.
    (Court of Civil Appeals of Texas.
    Nov. 26, 1910.)
    1. Trespass to Thy Title (§ 38) — Duty to Show Title.
    In trespass to try title, defendant’s plea may limit him in the extent of his recovery, but it does not relieve plaintiff of the burden of establishing his title to the land in controversy, and on his failure to support such burden, judgment will be rendered for defendant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    2. Judgment (§ 198) — Necessity oe Verdict.
    In trespass to try title, in which defendant disclaimed except as to a portion of the land, though the court properly instructed the jury that plaintiff had title to the land in controversy, a verdict, “We, the jury, find for the plaintiff and assess damages at $400,” was insufficient to support a judgment for plaintiff for the portion of the land excluded from the disclaimer, since the verdict was not responsive to the instructions.
    [Ed. Note. — F'or other cases, see Judgment, Cent. Dig. §§ 362, 363; Dee. Dig. § 198.J
    3. Judgment (§ 198) — Necessity oe Vee-dict.
    The trial court has no power to enter judgment upon facts well pleaded and indisputably proved, unless the issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered.
    [Ed. 'Note. — For other cases, see Judgment, Cent. Dig. §§ 362, 363; Dec. Dig. § 198.]
    Appeal from District Court, Hardeman County; S. P. Huff, Judge.
    Action of trespass to try title by R. M. Ma-gee against the Oklahoma City & Texas Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Fires, Decker & Clarke and Andrews, Ball & Streetman, for appellant. ■ D. E. Magee and W. T. Perkins, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   SPEER, J.

This is the third appeal of this case, and a reference to the opinion on the second appeal, reported in 120 S. W. 1103, .will suffice for a statement of the nature of the case. That opinion will also disclose that the appeal was then dismissed for want of a final judgment; the judgment failing to dispose of the issue of title to the strip of land 56 feet wide, claimed by appellee and asserted by appellant to constitute a part of Mc-Clelland avenue. After a dismissal of that appeal, appellee, Magee, sought and obtained an amendment of the judgment, so as finally to dispose of every issue.

We are now confronted with the contention of appellant that the verdict of the jury, itself, upon which the judgment was entered, was not decisive of all the issues of fact in the case, and itself could not form the basis of the court’s judgment. This contention must be sustained. It is elementary law under our system that the judgment must follow the verdict. As said by Mr. Justice Brown, in Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S. W. 79: “The trial court has no power to enter judgment upon facts well pleaded and indisputably proved, unless the issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered.” There is, perhaps, an exception, made so by statute, in cases tried before juries on special issue, where issues not submitted or requested to be submitted are deemed to be found in such way as to support the judgment; but the present was not a submission upon special issues, but upon a general charge and the verdict was: “We, the jury, find for the plaintiff and assess the damages at $400.” The action was one of trespass to try title and for damages, in which the defendant disclaimed as to all the lands sued for, except a strip 56 feet wide, alleged to be a part of McClelland avenue, as to wliieli it pleaded not guilty, and also specially pleaded its right to construct its railroad, switches, etc., thereon.

Conceding that appellant’s special plea as to its title would limit it in its recovery, it does not follow that appellee, as plaintiff below, was relieved of the burden of establishing his title to the land in controversy, for if he failed in this respect, the defendant would have judgment as of course. The question of ti^le to the 56 feet was then an issue under the pleadings, and if it be conceded, as it may, that the court did not err in instructing the jury that plaintiff had title to the land, nevertheless, there was no finding by the jury in obedience to such instruction, without which the court is powerless to enter judgment. The court may instruct a verdict, but he cannot return one. We did not discuss this question on the last appeal, for we had no jurisdiction of the appeal. On the present appeal we have jurisdiction, because the judgment in form is final, but is based upon an insufficient verdict, for which error the judgment is reversed, and the cause remand-. ed for another trial.

Reversed and remanded.  