The claimant in his affidavit for the trial of the right of property, disclosed the nature of his claim; which was not such as divested the defendant in execution of the title, or as deprived the plaintiff in execution of the right to have the property sold under his execution, subject to the interest of the mortgagee. This point is determined in the case of Wright v. Henderson, (ante.) It was manifest from the claimant’s averments that he was not entitled to judgment; and the Court therefore did not err in dismissing his claim.
It is insisted by the defendant in error, that the Court erred in refusing to award damages against the claimant, upon sustaining the motion to dismiss; and that the judgment should be reversed, and such judgment be now rendered as the Court below ought to have rendered.
The action of the Court in dismissing the case, was taken at the instance of the defendant in error. In his motion to dismiss he did not ask an award of damages against the claimant. After having dismissed the case at his instance, the Court might well refuse to entertain his motion for an award of damages. He did not appeal from the judgment, nor has he assigned error; and though in a case of manifest error and injustice, the Court might deem it proper to so re - form the judgment as to attain the justice of the case at the instance of the appellee, or defendant in error, (McHairy v. Castleberry, 6 Tex. R. 286,) we do not deem the present a case which requires such exercise of authority. The judgment is affirmed.
Judgment affirmed.