Hardy v. Broaddus, 35 Tex. 668

Hardy v. Broaddus

35 Tex. 668 | Tex. | 1872

Walker, J.

Knox confessed a judgment in the district court in favor of Broaddus for four thousand three hundred and ninety-eight dollars and seventy-five cents. Some time afterwards Broaddus got the clerk of the court to change the judgment to $4500.98. Following this alteration of the judgment, an execution was sued out and levied upon certain personal and real property, described in the petition of Mrs. Hardy as belonging to her, and which she alleges she purchased of one P. J. Boone, and paid for it with her own means.

After a careful examination of the record and briefs and arguments, we are unable to discover any justification for this novel proceeding. Indeed the defense is so lame as to leave little doubt upon the mind of this court that not only the judgment of Broaddus against Knox, but the levy and sale were all fraudulent.

The evidence show's that the personal property of Mrs. Hardy has been worked around into the possession of Knox, whilst Davis and Beall are claiming the real property, and these gentlemen argue to us very strenuously that the property cannot be reached in their hands, they not having been made parties to the suit. Further, that Mrs. Hardy was bound to pursue her statutory remedy, and could not proceed at common law.

This question is settled in the case of Moore v. Gammell, 13 Texas, 120. We feel that it is fortunate for the country that we have so much of the common law' left in our jurisprudence as will enable courts of equity jurisdiction to search out and relieve against all kinds of trickery and fraud. Davis & Beall have acted as *681attorneys throughout for Broaddus, if not for both him and Knox. They are chargeable with notice; and if it be found that they are wrongfully claiming title to the land, there will be no difficulty in divesting them of their pretended claim.

Under our system of pleading, the petition is not bad for multifariousness ; it would stand the test of a general demurrer, though there are portions of it which may be treated as surplusage.

The sheriff, Farrow, if he has acted in good faith, may justify under his writ; but if he has entered into a conspiracy with Broaddus and Knox to commit a trespass upon the property of Mrs. Hardy, he is equally liable to her in damages with them ; and being a ministerial officer, clothed with high functions, and entitied to great respect by virtue of his office, is all the more culpable for abusing it.

The judgment of the district court is reversed, and the plaintiffs may make Davis & Beall parties, or any one else from whom they are entitled to relief in this action. The cause is remanded, to be proceeded in, in accordance with this opinion.

Walker, J.

The facts of this case are sufficiently stated in the former opinion of the court.

The rehearing has furnished us with very able arguments and briefs, which have greatly contributed to bring all the material points clearly before us.

Before entering upon the opinion which we are now about to give, we feel it but justice to ourselves and to the very able counsel, that some explanation should be given of our former opinion. On page six of the brief and argument for rehearing the following language is found: 11 It is stated,” in the opinion of this honorable court, page one, “the evidence shows that the personal *682property of Mrs. Hardy has been worked around into the possession of Knox, whilst Davis & Beall are claiming the real property,” etc. We respectfully submit to the honorable court, th&t there is no statement of facts in the record ; indeed, that the whole case was decided upon the demurrer, special exceptions, and motion to dismiss in the court below, and that there is no evidence contained in the record for the consideration of this court. We exceedingly regret that the learned judge who delivered the opinion in this case has inadvertently regarded the naked allegations in the appellants’ brief as evidence of facts upon which to found grave and serious charges affecting the reputation of appellee’s counsel, in the conduct and management of this case.”

Again: “But we have stated in reply to the intimation of interest, and in vindication of ourselves as attorneys from the charge of interest in the suit, hypothetically stated by this honorable court, that we have not now, and never had at any time, any interest, present or contingent, in any of the property, real or personal,, involved in this suit. The argument in our brief was on. the hypothesis of the allegation being true, that the-land was bought in by Broaddus’s attorney, for the benefit of Knox ; and whilst we were willing to admit the truth of this allegation for the purpose of demurrer, and if true, would insist Davis & Beall ought to be made parties to the suit,” etc., etc.

In our former opinion it will readily be seen that when we use the term “evidence,” we are to be understood as alluding to that evidence which the appelleesmade against themselves by their pleadings; for we were certainly aware that there was no statement of facts in the record, from which we could derive a-knowledge of any other kind of evidence in the case. *683and we must not be too strongly criticised if we speak, in the language of the books.

If we were misled in our former opinion by applying; to the appellees the legal consequences of their demurrer, it would appear, from the quotation which we-are about to make from pages eleven and twelve of the1 original brief filed by appellees’ counsel, that we might also have been misled in supposing that Davis & Beall were claiming any interest in the land in controversy :

“1. Broaddus and Knox can be the only proper parties to a decree enjoining the judgment; but this cannot be done, as the appellants were not parties or privies to the judgment, and have no interest in it, and cannot be affected by it.

“ 2. Davis & Beall can be the only proper parties to-a decree setting aside the sale of the land to them and neither Broaddus, Knox, nor the sheriff, are interested in it, or can be parties to it.

“But Davis & Beall are not made parties to the suit,, and their rights cannot be affected by the decree, it being as to them £ coram non judiceJ’

“Again, it being an action for realty in the nature of an action of ‘trespass to try title,’ cannot be joined, with an action for damages to personal property.

‘ ‘ 3. Davis & Beall also can be the only parties to a-decree restoring the possession of the land.

“4. The sheriff is the only proper party to a judgment for damages for the wrongful levy and sale of the land; as upon no pretense can it be said that Broaddus, by having the levy made upon the interest ‘of Knox, gave the plaintiff a right of action against him for damages. Besides, it is not alleged in the petition that Broaddus had the levy made.”

It may be that counsel only intended to urge what is. contained in this extract, as a predicate for their argu*684ment against the petition on the ground of multifariousness. If so, the argument is certainly an unfair •one. To suppose that parties ought to be made who have no interest, and claim no interest in the case, and 'to urge that no proper decree can be entered until such parties are made, is an argument easily met by the ■reductio ad dbsurdum. But we forbear any further ■allusion to matters not strictly necessary to the decision ■of the case, only so far as to say that we adhere to our former opinion upon the law of this case, so far as ■its enunciation was deemed necessary. If there is anything in that opinion reflecting upon counsel, which does not come -within the scope of res necessariai scribere, we wish it understood as corrected in this opinion.

The original assignments for error to the rulings of the district court are as follows :

1. “The court erred in allowing the answers of de .fendants to be read on the hearing of defendants’ motion to dismiss the case.

2. “The court erred in dismissing the case on the motion of defendants, and in taxing plaintiffs with the costs. ’ ’

In our view of the law, both of these assignments are well taken.

As to the first, a demurrer is an instrument of the law; it may be, and sometimes is, taken to evidence ; but usually, and as in this case, it is used to test the legal sufficiency of the adversary pleading, and cannot be supported by evidence. It is very true that under •our system demurrers and answers are filed at the same time, but no notice should be taken of the answer, nor use made of it, until after judgment on the demurrer, -and the order of respondeat ouster.

We think it was equally error in this case to allow the *685answers of the defendants to be read in support of the-motion to dismiss.

As to the second assignment for error, the petition and amended petition do certainly set out a good cause of action, and therein is shown very sufficient reasons why the plaintiffs did not ^pursue their statutory remedy; but it is doubtful, considering the case of Moore v. Grammel, 13 Texas, 120, whether it- was necessary for-the plaintiffs to offer any reason why they chose to pursue their common law rather than their statutory remedy.

Two questions present themselves prominently in this-case, which we deem important to settle. Did Knox convey his property to Boone for the purpose of defrauding his creditors? If so, and Mrs. Hardy purchased the property from Boone bona fide, she will be protected therein, and even Knox’s creditors will not be allowed to take the property away from her. (See Martel v. Somers, 26 Texas, 559; Wood v. Chambers, 20 Texas, 251; Fowler v. Stoneum, 11 Texas, 501.) This-doctrine grows out of the statutes of 13th and 27th Elizabeth, which are in force in this State, under common law interpretation.

Had Knox conveyed his property directly to Mrs. Hardy, to defraud his creditors, he could not, either-directly or indirectly, invoke either a court of law or equity to recover the property from her hands, as the parties would be in pari delicto; but any bona fide creditor of Knox might pursue the property in the-hands of a fraudulent vendee or assignee. But a creditor of Knox could not pursue the property in the hands of a bona fide purchaser from his fraudulent vendee orassignee.

The next question which we deem important to decide-grows out of the alteration of the judgment confessed. by Knox in favor of Broaddus.

*686We admit that we have been unable to find any reported authority precisely applicable to this case; but we are clearly of the opinion that the doctrine uniformly held, which renders void a note, bond, or bill, which has been altered in a material part, by the party in ■whose interest the alteration .has been made, must apply with equal if not greater force to judgments in courts of record? In most of the States the act of altering a public record, we think, would not only be held to render void any interest the party making the fraudulent alteration might have in the record, but it would be an indictable offense. We do not hesitate, then, to say that the judgment was void from and after the alteration.

And if it was obtained for the purposes charged in the pleadings, it was voidable on the ground of fraud; and in this view of the case it devolves upon us to say that the enforcement of this judgment should be perpetually enjoined.

Again, on the score of parties, it does not appear to us that there is any improper joinder of parties in this •case. Certainly, all who join in the commission of a tort may be sued together, and Grreenleaf lays, down the doctrine, in Vol. 2, paragraph 277, that the jury are to assess damages against all the defendants jointly, according to the amount which in their judgment the most culpable ought to pay. numerous decisions are cited in the note in support of this doctrine.

On the trial of this cause the evidence may not support the pleadings; the sheriff may be able to justify, and Broaddus and Knox may be able to show that they are not guilty of any fraud or tort. But the case must go to a jury. We therefore affirm our former •opinion.

Reversed and remanded.