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: 349
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1875.] TROTTI V. HOBBY & POST. 349
Statement of the case.
plication for a continuance, and should have been allowed.
For this refusal the judgment is reversed, and the cause is remanded.
Reversed and remanded.
J. F. TROTTI V. HOBBY & POST.
1. SECONDARY EVIDENCE--PRACTICE. It is not error to admit parol evidence
of the boundaries of a tract of land, which boundaries are described
in a deed in the possession of the adverse party, who has been
notified to produce the original.
2. AMENDMENT. Suit was brought to foreclose a mortgage which referred
to a deed in the mortgagor's possession for the boundaries of the mortgaged
premises, and the defendant had been notified to produce the
original deed, and in absence of the original, the plaintiff had introduced
parol evidence as to the boundaries as set out; when the defendant
in his evidence read the original deed, whereby it appeared that the
plaintiff's petition was insisting on foreclosure of the mortgage upon
lands not included in it, and on ascertaining the fact for the first time,
Held, it was not error to permit an amendment to be filed, disclaiming
as to the excess, and limiting the prayer for foreclosure to the land
actually included in the mortgage.
APPEAL from Jasper. Tried below before the Hon. I. 0.
Hobby & Post sued J. F. Trotti and Lewis I, Selig on a
promissory note executed by Trotti to plaintiffs, secured by
mortgage on eighty acres of land adjoining the town of Jasper,
of which land Selig was in possession under a purchase from
Trotti; judgment was asked for amount of the note and fore
closure. By amendment, July 22d, 1873, plaintiff set out the
land by metes and bounds.
Defendants answered general denial, payment and release
of the mortgage.
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Texas. Supreme Court. 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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/357/: accessed May 23, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .