Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 353

1875.] TROTTI V. HOBBY & POST. 353
Opinion of the Court.
to the jury, and by which it was shown that before the sale to
defendant a small portion of the land had been conveyed to
another person. The plaintiffs then asked leave to amend, for
the purpose -of describing the tract according to the terms of
the deed produced by Trotti, which was granted. Ordinarily,
the granting leave to amend at such a time would be error; in
the case as presented, however, we find no error; the proposed
amendment, if it is to be considered as an amendment, was, at
most, al irregularity; it did not operate to the prejudice of any
defense known to the law, which the defendant could have set
up to the case as then presented by plaintiffs. (Mattosy v.
Frosh, 9 Texas, 611.) They sought to foreclose the mortgage
and obtain an order for the sale of the tract conveyed to them
in the mortgage-deed of defendant. The deed read by defendant
showed that a less quantity of land was embraced in the
mortgage than plaintiffs claimed; their deed contained no
description, but referred to another deed which was in defendant's
possession, and which, as already stated in this opinion,
he had timely notice to produce, and which he failed to do.
After plaintiffs had closed their evidence he then introduced it
for the purpose of showing that the tract did not embrace as.
much land as they claimed. The so-called amendment was, in
substance, equivalent to the plaintiffs saying: "Defendants
show that we are not entitled to foreclose our mortgage on as
large a tract as we supposed, and as the witness Hollman had
stated in his evidence-a small tract had been previously sold
to George W. Rose. We accept as true the statements contained
in the deed read by defendants, and claim nothing
more." This was not required as a portion of their pleadings
in the suit. The paper filed by permission of the court was,
in fact, a disclaimer of their right to foreclose, by virtue of their
mortgage, the interest which belonged to Rose. It did not
injure or affect any legal right or equitable interest of (lefendant's,
and it was competent for the court to allow, under the
existing circumstances, the plaintiffs to disclaim as to the tract
owned by Rose. (Whitehead v. Foley, 28 Texas, 10.)
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