
    Bradford and others v. Hamilton.
    The plaintiff cannot maintain a suit commenced without any order of delay by evidence of a title subsequently acquired.
    Where the answer of a defendant contains matters which constitute a cause of action against the plaintiff, and prays judgment upon the same, the plaintiff cannot take a voluntary nonsuit, whether the answer be called a plea in reconvention, br a petition in tlic nature of a cross action, or by whatever designation. (Note 9.)
    Appeal from Williamson. This suit was instituted by the appellee, on the 7th day of September, 1819, to recover a tract of land described in the petition, and claimed by the plaintiff by virtue of a certificate located and surveyed. The defendants, ih their answer, alleged that (he same lands had been previously located and surveyed for themselves by virtue of a certificate of which they are owners; that the plaintiff fraudulently obtained possession of the defendants’ certificate and field-notes before the same were returned by the surveyor to the proper office and recorded; that lie for a long time retained the certificate, and has destroyed or concealed the field-notes, whereby the defendants were prevented from having a due return made of the location and survey to the General Laud Office and obtaining a patent for the land. The}1- further allege that if the plaintiff has a location and survey of the land, it was obtained after the destruction or secreting by him of the field-notes of the defendants. And they pray that his location and survey, if any he have, as alleged in his petition, be canceled and annuled, and that the location and survey of the defendants be established and adjudged to them, and they be quieted in the possession of the lands in controversy.
    On the trial, the plaintiff read in evidence a certified copy of the field-notes of a survey of the land from the General Land Office, describe,d as "Survey No. 23, for M. O. Hamilton, assignee of A. B. Scanmm, Ass. of Thomas B. Haling, Ass. of James Sweney,” purporting to have been made on the 20th day of April, 1847. He then offered in evidence a patent from (be State to himself for the land, hearing date on the 21st day of January, 1851, reciting the transfer to him of the certificate on which it issued, on the loth day of January, 1851.
    To the admissibility of this evidence the defendants objected. Their objection was sustained. The plaintiff excepted, and thereupon asked leave to take a nonsuit, to which the defendants objected, and the court overruled their objection and gave judgment that the plaintiff be nonsuited, &c. Whereupon the defendants appealed.
    
      J. Wébb and W. S. Oldham, for appellants.
    There is but one question in this ease. The appellants, being defendants below, having pleaded in reeon-vention, the plaintiff had no right to take a nonsuit, so as to deprive them of the benefit of their plea. The question has been settled by this court against the right to take a nonsuit in such a case. (Thomas v. Thomas, 3 Tex. It., 270; Egery v. Power, 5 Tex. It., 501.)
    
      A. J. Hamilton and J. Hancock, for appellee.
    I. The court erred in not permitting appellee to read the patent in evidence, obtained pending the suit, upon the certificate and field-notes on which the suit was instituted. It was not a title acquired after the institution of the suit, hut only the same title perfected by obtaining the highest evidence of right to the land. The character of title described in the petition — a survey made in conformity to law upon a genuine certificate — was sufficient to enable appellee to maintain his suit. The patent did nothing more than give the same right in a more perfect form. It cannot be maintained that the institution of the suit had the effect of an injunction restraining the appellee from obtaining a patent.
    II. The objection taken to the introduction of the patent having been sustained by the court, it would seem to follow, as a matter of right, that the plaintiff should be allowed to take a nonsuit. The title sought to be set aside and annulled-by appellants in their amended answer was, upon their own motion, excluded from the consideration of the court. There then remained in the pleadings no question for the court to act upon. No complaint being made for damages or prayer for possession of the land, it is not believed there is any analogy between this case and the case of Egery v. Power, decided at Galveston. In that the defendant, in his reeonvention, pleaded title in himself, and claimed a large amount of damages for trespass committed by the plaintiff. Again, in that ease the nonsuit was voluntary; in this, it was compulsory by the act of the appellants’ objecting to having the title they wished to have set aside.brought before the court.
   Whbelbb, J.

The evidence of title offered by. the plaintiff appeared to have been acquired after the commencement of the suit. It was therefore rightly rejected. There was no evidence that the plaintiff had any right whatever at the time of bringing his action, and it is quite too clear for argument that ho could not maintain a suit commenced without'any color of title by evidence of a title subsequently acquired.

The only question in the case which requires to be considered is, liad the plaintiff a right to terminate the suit by taking a nonsuit, and thus putting the defendants out of court after the latter had pleaded matters which constituted a cause of action against the plaintiff in respect to the subject-matter of the suit?

It is well settled that after the defendant has pleaded in reeonvention, the plaintiff cannot put an end to the suit, and deprive the defendant of the right to an adjudication of the matters contained in his plea by taking a nonsuit. (Thomas v. Hill, 3 Tex. R.; Egery v. Power, 5 Id.)

It has been repeatedly so decided bjr the Supreme Court of Louisiana. In Coxe v. Downes, (9 Rob. R., 133.) the cases in that court upou this subject were reviewed; and it was said to be well settled that “ when a demand in reeonvention is legally presented by the defendant in a suit, the plaintiff cannot put the demand and the party out of court by simply dismissing his claim.” The code of practice of that State, it was said, had only recognized the general principles of the Roman and Spanish law upon the subject. It is well understood (the court says) that quoad the demand in reeonvention a defendant is as much a plaintiff as the latter is, in relation to his demand; and neither can put the other out of court by simply dismissing his own claim. (Id., 134, 135.) It was accordingly held that, the plaintiff' might abandon ■ his claim, but the defendant must be allowed to prosecute his demand. (Id., 210.)

The matters, which may be pleaded in reeonvention, were considered by this court in the cases of Egery v. Power, 5 Tex. R.; Walcott v. Hendrick, 6 Tex. R. If the inquiry were material, the present must, it is conceived, be

Note 9. — Cunningham v. Wheatly, 21 T., 184.

held to he a plea in reconvention as known to the civil law of Spain, from which we have derived it. (Id., 2 La. R., 139; 9 Rob., 210; Id., 133.) But whether the present be deemed to be properly a plea in reconvention or not, it sets forth matters upon which the defendant seeks a judgment against the plaintiff respecting the subject-matter of the suit, and the principle applicable to it is, therefore, the same.

It is well settled that the defendant may in every case sot up in his answer any matters of defense, whether equitable or legal, which go to defeat Hie action. And in Walcott v. Hendrick, before cited, it was determined that “ the defendant may plead, in recouvention or by whatever name the plea may be called, in his defense and for redress all matters necessarily connected with the main action.” The doctrine of the case is this: if the defendant lias a cause of action against the plaintiff, touching the subject-matter of the suit, he may set it forth in his answer, and have the legal redress against the plaintiff t.o which he is entitled, in the same manner and to the same extent as if he were originally plaintiff.

The principle of the rule that the plaintiff cannot discontinue after the defendant has pleaded in reconvention is, that as to the matter pleaded in recon-vention, the defendant is the actor or plaintiff. This principle equally applies to every case in which the defendant sets forth matter in his answer which, if true, entitles him to have, and upon which he seeks, judgment against the plaintiff, and of course embraces the present case. Where the answer contains matters which constitute a cause of action against the plaintiff, its effect upon his right to dismiss his suit must be the same, whether it be called a plea in reconvention or a petition in the nature of a cross action, or by whatever other designation; for the defendant, as to the cause of action set for in his answer, is to be regarded as plaintiff. And, as has been said by the Supreme Court of Louisiana, (9 La. R., 310,) the principle which allows a plaintiff to discontinue his suit cannot be extended to cases in which the parties are alternately plaintiffs and defendants. “Neither party is then at liberty to discontinue a suit or action which is not exclusively his own, with a view to avert a judgment in the case, which his opponent has a right to obtain.” “Every consideration which prohibits the defendant from withdrawing from a cause applies with equal force against allowing the plaintiff to discontinue the demand presented against him.” (4 Mart., N. S., 444 ; 7 Id., 405.)

We are of opinion that the plaintiff could not, by taking a non-suit, put the defendant out of court as to the cause of action set forth in his answer, and consequently that the court erred in its judgment. The judgment must therefore be reversed, and the cause remanded for further proceedings.

Judgment reversed.  