This is an action of trespass to try title. There was a nonjury trial resulting in a verdict against the plaintiffs as to all the defendants except Arno Boetcher and Emil Hueni, against whom judgment was rendered by default for part of the land.
The plaintiffs attempted to show title through a probate sale, which the trial court held was insufficient, because the description of the land sold, given in the probate proceedings, did not identify it with the land described in the plaintiff's petition. We think this ruling was correct.
We are also of the opinion that the court did not abuse its discretion in refusing to permit the plaintiff to recall a witness who had previously testified, although the request was made before the argument had closed. Nor was error committed in refusing to open the case and hear further testimony after the argument was closed and before judgment was rendered.
We adopt the trial judge's conclusions of fact and law, except as hereafter stated. The defendants Boetcher and Hueni complain of the judgment against them for the following reasons:
It appears from the testimony that two of the defendants, Monroe Coghlan and his wife Catherine Coghlan, conveyed 19 2/3 acres, part of 73 acres claimed by them in their answer, to the defendants Kaltemeyer, Boetcher, and Hueni. The Coghlans and Kaltemeyer pleaded not guilty and the statute of limitation as to the 19 2/3 acres, and as to them, the judgment went against the plaintiffs. Under these circumstances, although Boetcher and Hueni did not answer, it is contended that the same judgment should have been rendered as to them that was rendered for Kaltemeyer and Coghlan and wife.
We think this contention is correct. It is stated in the brief of Boetcher and Hueni that Coghlan and wife warranted the title to the 19 2/3 acres of land, and this statement is not denied in the opposing brief contesting Boetcher and Hueni's right to a reversal. Under the circumstances stated, we think Boetcher and Hueni were entitled to all the benefit resulting from the answer filed by Coghlan and wife, although the former had not impleaded the latter, and the latter did not state in their answer that they were defending for their vendees. Furthermore, there are authorities that seem to support the contention that the answer of Kaltemeyer, who was a joint owner with Boetcher and Hueni, inured to his benefit by reason of their common ownership. 5 Enc. of Pl. and Prac., 994-996; Clason v. Morris, 10 Johns. (N.Y.), 524.
It also seems that there was no pleading authorizing a partition between *Page 585 Kaltemeyer, Boetcher, and Hueni; and therefore judgment of partition between them should not have been rendered.
Hence our conclusion is that the judgment of partition should be set aside, as well as the judgment for the plaintiffs against the defendants Boetcher and Hueni, and the judgment of the court below be so reformed as that the plaintiffs shall take nothing by their suit and pay all the costs of both courts.
Judgment affirmed in part and reversed and rendered in part.
Writ of error refused.