Clarke v. Koehler

32 Tex. 679 | Tex. | 1870

Walker, J.

On the 13th day of January, 1861, Mary E. Clarke and her husband, Bobert Clarke, brought suit in the District Court of Harris county, to recover possession of a certain lot of ground in the city of Houston. At a subsequent term of the court, Win. H. Church, one of the heirs of J. McCormack Church, made himself a party plaintiff to the suit, and. it is made to appear that Mrs. Clarke, Win. II. Church and Horace J. Church were the only children of J. McCormack Church, who died intestate on the 5th of February, 1850, and that Horace J. Church died intestate, leaving neither wife nor child, and that his brother and sister were his heirs-at-law. Pending the suit, Mrs. Clarke and her husband, and also Win. H. Church, sold all their interest in the land in controversy to W. P. Plamblin, but their names continued on the record as plaintiffs until a trial was had in the District Court, which resulted in favor of the defendant; from which, the record says, that William P. Hamblin appealed. We have repeatedly decided that the original plaintiffs to an action can not sell out their interest pendente UteywA make new plaintiffs to the suit. This court has not, nor will it, allow this kind of champertous speculation to maintain a footing in the courts of the State. On this point alone we should dismiss the appeal; but we think it due to the parties that we should decide this case as well upon other questions raised upon the record.

The plaintiffs, as the children of J. McCormack Church, claim that their father, in his lifetime, had bargained for the lot in question from one Win. R. Baker, and that he was in possession of the lot at the time of his death; that their mother, Mrs. Mary E. Church, paid for the lot out of their father’s means, after his death, and took a deed in her own name, giving it a fraudulent date anterior to their father’s death. It does not appear that J. McCormack Church ever had title to the lot in controversy, though it is admitted that he was in possession some six years before the date of the defendant’s deed, and at the time of his death, together with his wife, Mary E. Church. It appears from the statement of facts that on the 4th day of September, 1852, Win. R. Baker executed a deed of gift to Mary E. Church for the lot sued for, and that her husband died the 5th of February, 1853. On the second (lay of April, 1858, Mary E. Church, for a valuable consideration, sold and deeded the lot to B. P. Buckner; Buckner deeded the same lot for a valuable consideration to the defendant, Koehler, on the 28th of March, 1859. The deeds were all regularly recorded.

The plaintiffs in ejectment (or trespass to the title) must recover upon the strength of their own title, but they must deraign from the sovereign of the soil down to themselves, or they must show such an equitable title as is good in them against all other outstanding or opposing equities. In this case they certainly show no legal title. To make out their equities they begin by charging their mother with a fraud upon them in obtaining title in her own name for property which she paid for out of their father’s money, and took a deed antedated to defraud her own children. It would not help the plaintiffs’ case one particle if all his scandal were true. Koehler is an innocent purchaser, without notice of any fraud on the part of Mrs. Chinch, if she committed any; and it ivould be going a great ways beyond where this court is willing to go, to charge him with notice of any equity in these children, simply from the fact that their father was in possession about six years before the date of Koehler’s deed, and it not being ever proven that Koehler knew this at the time he purchased from Buckner.

Eor the reasons given, we dismiss the suit at the costs of appellants.

Dismissed.