On Motion for Rehearing.
The appellees insist in their motion for rehearing that this court erred in holding that *807the county court was without jurisdiction of thoir cross-action, because they had not therein placed in controversy an amount exceeding $1,000. Their contention is that their plea alleging payment of the note sued on by appellant and asking for the cancellation of the note and mortgage is not to he considered in determining the amount involved in their cross-action.
Article 2014, R. C. S., requires that payment must be specially pleaded or the proof of payment is not admissible. Payment therefore cannot be shown under an answer containing only a general denial. It will be noted that appellant sought to recover on a note for $163, with interest and attorneys’ fees, and to foreclose a chattel mortgage on personal property alleged to be of the value of $175. The appellees pleaded payment and asked that this chattel mortgage lien against their property be canceled, because the note, the payment of which was secured by the chattel mortgage, had been paid. Appellant could not, under the state of this record, have taken a nonsuit of its cause of action and thereby prejudice the right of appellees to show that the debt evidenced by the note sued on by appellant had been paid and obtain a judgment canceling said note and mortgage.
It is settled that the defendant may set up in his answer any matters of defense which go to defeat the plaintiff’s cause of action, and, if the defendant pleads a cross-complaint touching the subject-matter of the suit, he may have legal redress against the plaintiff for any relief to which he is entitled and this right to affirmative relief cannot he defeated by a voluntary nonsuit by plaintiff of his cause of action. Bradford et al. v. Hamilton, 7 Tex. 55.
A party owing a note secured by a lien may maintain a suit for the cancellation thereof and a release of his property from the lien. Johnson v. Lockhart et al., 20 Tex. Civ. App. 596, 50 S. W. 955.
In Jackson v. Burst, Edwards & Co. (Tex. Civ. App.) 154 S. W. 243, 244, it is said: “Hid the answer of appellant present a state of facts which entitled the appellant to the affirmative relief asked in his prayer, to wit, the cancellation of the note sued upon and a judgment for costs? In strict construction the pleading may be said to be an answer; hut if the facts stated as a defense are such facts as would support an independent suit for cancellation of the note we can conceive no reason why the allegations thereof in an answer, followed by appropriate prayer, would not be sufficient, under our system of pleading, to constitute a plea seeking affirmative relief.”
The motion for rehearing is overruled.