54 Tex. 171 | Tex. | 1880
Lead Opinion
The plaintiff in error complains in his first, second and fourth assignments of error of the action of the court in allowing the substition of new parties instead of original parties, deceased, and of a new equitable course of action, instead of common law
On the 2d day of November, 1869, W. D. Mays, administrator of the estate of I. A. Paschal, deceased, filed his petition in the district court of Medina county against Volney E. Howard and the unknown heñs of B. D. Howard, claiming a number of lots in Castroville, Medina county (the same which are in this suit adjudged to McLane), setting forth that the heirs of B. D. Howard claim to have a pretended and fraudulent right or title to the same, and praying that the title thereto may be decreed to be in petitioner’s intestate. This case was numbered 307.
On the 11th day of April, 1870, Matthew Malsh, George W. Paschal and William D. Mays, administrator of the estate of Isaiah A. Paschal, deceased, filed their petition in the district court of Medina county, against Bussell Howard and others, in trespass to try title, claiming ownership of what is known as the Castroville league of land, except such fractional part of said league and such lots as may have been sold to others by John H. lilies in his lifetime. This suit was numbered 311 on the docket of Medina county district court.
By disclaimer of the other defendants, Bussell Howard became the sole defendant, and on November 26, 1870, filed his answer suggesting the consolidation of the two cases, claiming title under John McMullen, deceased, alleging that his title had been declared good by the circuit court of the United States, and alleging that “Henry Castro, now deceased, was the tenant of John McMullen ” under an executory contract not complied with by either •party.
On the 1st day of December, 1870, Howard represented
On the same day the above motion was granted by the court.
On the 21st day of January, 1871, Russell Howard filed his suit, No. 322, in the district court of Medina county against Joseph Courand, Charles Brinkhoff, Eliza Moser, P. H. Moser, Julius Kauffman and Matthew Malsh, claiming to be the owner of certain lots in the town of Castro-ville, and “of what is known as the McMullen grant,” charging that some of defendants claim the lots, and Malsh, or others, certain specified surveys on the McMullen grant; asking to be quieted in his title. On March 21, 1871, Nos. 307 and 322 were, on motion of Howard, consolidated with No. 311. After a number of continuances of the consolidated cause by consent, on the 6th of October, 1874, Russell Howard filed the following:
“ And now comes Russell Howard, who says, that at a previous term of the honorable court, W. D. Mays was suggested by the defendant to be no longer the administrator of I. A. Paschal, deceased, and he now says that Mary 0. Paschal, of the county of Bexar in said state, is the widow and administratrix of said Isaiah A. Paschal, deceased, and that since said suggestion of said removal of said William D. Mays, now deceased, Hiram H. McLane (as appears of record in this county of Medina) has become the purchaser of nearly all of the interest of said estate. Wherefore said Howard asks that said .McLane, a resident of said Bexar county, together with said Mary 0. Paschal, administratrix as aforesaid, be made parties plaintiff hereto, and .a writ of scire facias to revive1 and prosecute this suit in their names he issued accordingly to each.”
On February 11, 1875, on motion of McLane, supported by affidavits, the venue was changed'to Bexar county. On March 1, 1875, Russell Howard, for himself and the other defendants, filed in the district court of Bexar county a general demurrer and general denial, entitled and numbered as 311.
On June IS, 1877, Howard filed a paper in which he suggests the death of Mays and of Malsh, and states that Geo. W. Paschal is the only survivor of the plaintiffs in No. 311; that H. H. McLane was improvidently permitted to make himself a party plaintiff and defendant. He then proceeds to demur specially to the petition and the pleading of McLane in No. 311 for uncertainty and other defects, and then by way of cross bill, as well as by way of answer, states at length the grounds of his claim of title. He claims that McMullen, mider whom he claimed, held and possessed the land in 1834, and afterwards under a valid grant to the Indians of the Mission of San Jose by the government of Spain in 1766; that Castro went into possession in 1844, as before stated, under recorded executory contracts with McMullen; always acknowledged McMullen’s title, and located the N. Flores certificate on the Castroville league, and obtained a patent thereon in 1850, solely as a defensive measure against parties denying the validity of the grant to the Indians, and not by way of an adverse claim to McMullen. He alleges that on February 24, 1868, these patents were cancelled and the Flores certificate delivered up for relocation, and had
On the 12th of June, 1877, the several parties who are usually styled plaintiffs, and who are, the defendants in error here, filed pleadings to the following effect:
1. Mrs. Justine McKenzie, a feme sole, says that she is the owner of all the interest, right and claim of Matthew Malsh; that said Malsh has died since the institution of these suits, and she prays to make herself a party in the place and stead of said Malsh, and asks to prosecute and defend in the said suits the same as said Malsh might or could do if hving.
And therefore said Justine McKenzie, as plaintiff in case No. 311, in place of Malsh, and also P. H. Moser, Eliza E. Moser, Charles Brinkhoff, Michael Lang and Joseph Courand, as well as the said Justine McKenzie, as defendants in suit No. 322, the said Lang making himself a party, claiming an interest in the property in controversy, in connection with the said P. H. -Moser and Charles Brinkhoff, with leave of the court first had and obtained, ■ set up ownership to the property in controversy; the said Mrs. McKenzie claiming that she is the owner of all those parts of surveys No. 178 and 179 (the two constituting the Castroville league) which have not been subdivided into lots, blocks and ranges, and that she is also the owner of a number of the lots, as subdivided, which lots are enumerated in said “amended petition.”
Eliza E. Moser alleges herself to be the owner of three lots, and Joseph Oourand to be the owner of one lot.
All of said last named parties, in answer to the petition of said Russell Howard in suit No. 322, make a general denial, plead not guilty, and allege themselves to be the owners respectively of the lots previously enumerated, and the said Justine McKenzie also claiming the five surveys claimed by Howard in his petition in suit No. 322. And all of said parties together and each plead, as matters of defense and in support of their titles, the statutes of limitations of three, five and ten years, and that their claim and possession for twenty years prior to the institution of the suits aforesaid gives them title by presumption.
They further deny the statements and allegations contained in the answer of Russell Howard, dated 21st April, 1877; specifically deny the cancellation of the patents issued to Henry Castro on August 27, 1850; that if any such cancellation was made or attempted to be made, the same is, and was at the time thereof, null and void; that it was not procured by any one who was either the owner of the patents or the lands thereby granted, and that the cancellation, if obtained, is in fraud of the rights of the aboved named parties, and void in so far as they are concerned; that said patents were never can-celled by any one having authority to make such cancellation.
They also deny the validity of the McMullen grant by reason of the judgment of the district court of Bexar county in 1847, which was affirmed by the supreme court of the state.
They further deny that the decree of the circuit court
On the same day, June 12, 18U, Howard files his motion to strike from the files those pleadings that day filed, because “filed by new parties not the legal representatives of the original plaintiffs, Mays and Malsh, deceased, George W. Paschal, the other original plaintiff, being still alive,” and amongst other grounds, claiming that these pleadings set out a new and inconsistent cause of action. On the same day was also filed an agreement, signed by counsel for Howard and by counsel for all the defendants in error, but by no one professing to represent George W. Paschal, or the estates of either I. A. Paschal or of Malsh, reciting the disqualification of the presiding judge, and selecting a special judge to try the case.
At the same term the case was tried without a jury, and the court (having, as appears by bill of exceptions, overruled Howard’s demurrer and motion to strike out) proceeded to give judgment against Howard in favor of the different defendants in error, viz.: that Justine McKenzie recover certain lots specified; that P. H. Moser, Charles Brinkhoff and Michael Lang recover of said Howard certain other lots'; and so respectively of Eliza Moser, Joseph Courand and Hiram H. McLane each, giving them a writ of possession and quieting their title. It was ordered and decreed that Howard take nothing by his suit Ho. 322, and judgment was given against him for costs.
The plaintiff in error’s first proposition is: “On the death of parties to a suit pending, their place must be supplied by the appearance of, or citation to, their legal personal representatives, and not by a voluntary substitution of other parties foreign to the record.”
This subject was examined with care in the case of Moore v. Rice, 51 Tex., 290, and the conclusion was substantially as expressed in the above proposition. In case of the death of the plaintiff, an alleged assignee cannot, over the objection of the defendant, come in and prosecute the suit until the representatives or heirs of the deceased have had an opportunity to admit or contest his right. If, however, the defendant acquiesces in such a procedure, he may be precluded from subsequently objecting. Seeking to avail themselves of this principle, counsel for defendants in error submit their counter proposition: “Howard himself having moved, in the district court, in cases 307 and 311, that other parties might be made, who . are assignees of the plaintiffs in said suits, he cannot now object to the coming in of such parties voluntarily.”
In the same paper, however, he asked to have the administratrix of I. A. Paschal’s estate made a party, and cannot therefore be said to have then acquiesced in the substitution of McLane for the Paschals.
Subsequently, however, he allows McLane to come in, avowedly as the owner of the interest of the Paschals, and to prosecute the suit himself. McLane not only files his plea asserting his right to prosecute the suit instead of the Paschals, but proceeds to have the venue changed, and all this, so far as the record shows, is done without objection. Over two years afterwards, and just on the eve of the trial, he does object, but we think the objection came too late. He had admitted in his application for scire facias in 1874, that McLane had become “ the purchaser of nearly all of the interest ” of I. A. Paschal’s estate, and now, even when making the objection, he treats McLane as competent by his counsel to agree to a special judge.
The record shows that in 1873 McLane purchased at administration sale the interest of I. A. Paschal’s estate in these lots and lands, and at trustee’s sale the interest of Gr. W. Paschal. From the statements in his application for scire facias in 1874, and from his whole course up to June, 1877, it is reasonable to conclude that, up to the latter period, Howard had acquiesced in McLane becoming a party, not merely as interested in the subject matter of litigation, but as the assignee of the Paschals.
In regard to Mrs. McKenzie and Lang, defendants in error say that their interests were acquired before the institution of the suits, and that they had a right to become parties as intervenors for the purpose of “ascertaining and protecting their interests.” G-raves v. Hall,-87 Tex. It seems that Lang, jointly with Moser and
But Mrs. McKenzie comes in stating that Malsh was dead, and makes herself a party in his stead. Although it seems that Malsh, who bought from a purchaser at the administration sale of Hies’ estate, had actually conveyed his interest to Mrs. McKenzie before the petition in No. 311 was filed, but after it was drawn up, and that Mrs. McKenzie was not in fact a purchaser pendente lite, this does not authorize her, without the consent of Malsh’s representatives and without the acquiescence of Howard, to prosecute the suit “ as Malsh might or could do if living.” Her effort to do so was promptly objected to, and in our opinion the objection should have been sustained. The defendant could not be compelled to litigate with her as the representative of Malsh, unless the heirs or representatives of Malsh were first made parties, and the defendant thus assured that he was litigating with the right person.
This conclusion will lead to a reversal of the judgment in so far'as it is in favor of Justine McKenzie; but as the judgment, or rather decree, consists of distinct and independent parts, and may still, if found correct as to other defendants in error, be affirmed as to them, we proceed to examine the other errors assigned, but in doing so propose to group them and treat them in our own order.
The plaintiff in error adduced in evidence a certified copy and translation of the Spanish grant to the Indians of the Mission of San Jose, and asserts in his brief that it “is a valid grant, and is so declared in the decree affirmed by the United States supreme court in Herndon v. Howard’s Heirs.” That instrument was passed upon by this court in the case of McMullen v. Hodge, 5 Tex., 34, and it was held not to vest the title, but only to give a usufructuary right, which ceased with the extinguish
We have seen that all of the defendants in error deraign title under lilies or his estate, and that Elies acquired his right at execution sale against Castro, to whom patent had issued some years before. The plaintiff in error says that as Castro went into possession under an executory contract with McMullen, he neither could, nor did, dispute McMullen’s title; and hence it is inferred that Elies bought, and those claiming under him or his estate hold their titles, subject to the same disability. The principles relied on are thus stated by counsel: “A vendee under an executory contract cannot dispute the title of his vendor or his assignees.” “If the vendee sets up an adverse claim there must be notice to the vendor, otherwise any title acquired by him inures to the benefit of the vendor.” “On disputing his vendor’s title, the possession must be returned.” “ A purchaser at sheriff’s sale takes only such rights and interests as the defendant in execution had.”
The reason of the rule forbidding the person who has gone into possession under a contract to purchase, to dispute the title of his vendor, is believed to be the same as in case of landlord and tenant, viz.: “ the injustice of allow
The evidence in this case shows that Elies acquired possession only by suit against Castro and others, and after the judgment therefor was affirmed in this court. See Castro et al. v. Illies, 22 Tex., 479. The evidence is silent as to subsequent possession by Elies or either of the defendants in error, and for aught that the record shows, the plaintiff in error has had possession fully as much as defendants in error. In this state of the evidence, and after such a lapse of time and such an amount of litigation, it does not appear to us that the defendants in error are within the reason of the rule under consideration. Whatever may have been the title under which Castro proposed to hold at the time of the execution sale, Elies took all the title he, Castro, had under his patents, and acquired his possession in his own right by suit, and not in trust for Howard.
There is, in this state, a line of decisions leading to the
The application of the rule in the foregoing cases was in favor of pre-emptionists, but it is not perceived why the principle should not also apply in favor of a vendee who secures the land by locating a certificate.
Several of the rulings complained of are to the exclusion of evidence as to the title under which Castro held possession, and as to his declarations at the sale. The court excluded such evidence only as to the period after lilies acquired his hen. After the rights of lilies had attached, Castro’s declarations should not be allowed to prejudice those rights, and were properly excluded.
To establish his averment that the patents to H. Castro on the N. Mores certificate had been cancelled, the plaintiff in error proposed to read a list, certified by Jacob Kuechler, Com. G-. L. 0., to be a correct list of the patents and field notes cancelled in this office on account of conflict with the McMullen grant in Medina county. For the same purpose he offered a patent to Lorenzo Castro in 1870 by virtue of the Flores certificate. This evidence was excluded and the point reversed by bill of excptions. The bill of exceptions does not state the ground of the objection. If it was on the ground that the title of defendants in error could not be affected by a cancellation not shown to have been made by their authority, we think it was rightly done. The statute provided a way by which the owner of a patent, issued by mistake, “upon any valid claim for land which is afterwards proved to be in con
Sundry other questions of evidence, practice and pleading are presented, on which we content ourselves with merely announcing our conclusions.
After the defendants in error had filed their cross bill, Howard had no right to dismiss his suit Ho. 322, if, indeed, after the consolidation, he could do so at all.
The affidavit of McLean was sufficient under the statute to authorize the introduction of certified copies of the recorded patents. Pasch. Dig., art. 3716.
The execution from Bexar to Medina county was rightly admitted. It was the same under which lilies’ title was supported in this court. 22 Tex., 479.
The affidavit of Mrs. Moser is badly worded, but we cannot say that the court erred in holding it. sufficient under the statute. Pasch. Dig., 3716. The partition between the estate of Blies and I. A. & G. W. Paschal was not void, although I. A. Paschal was dead at the time it was confirmed.. Milam Co. v. Robertson, 47 Tex., 222. Moreover, the evidence^shows the acquiescence of all parties at interest, and it is not for a third party to object to mere irregularities. In view of the consolidation of the three cases, we are unable to see that there was afterwards any misjoinder of causes of action, or that the pleadings, as amended, were subject to demurrer, or insufficient to authorize the judgment.
Reversed and remanded in part, )
AND IN PART AFFIRMED. j
[Opinion delivered November 3, 1880.]
Rehearing
ON MOTION FOR REHEARING.
The judgment of this court was entered November 3, and this motion for rehearing was not filed until December 13, long after the expiration of the fifteen days within which the statute authorizes such motion to be filed. We think, however, that the facts stated in the affidavit accompanying the motion, and the fact that this case was transferred by the court of its own motion from Austin to Tyler, excuse the delay, and that the motion should be allowed and considered. Baldridge v. Scott, 48 Tex., 196-7, The motion stated that Waelder & Upson were the counsel for the opposing party, and a certified copy of the motion was accordingly duly served on Jacob Waelder on December 15. We find, however, that H. H. McLane was one of the appellees; that he does not appear to have been represented by Waelder & Upson, either in the district court or in this court, but was represented in the district • court by different counsel, and was not represented by counsel in this court. The brief of Messrs. Waelder & Upson is signed by them as counsel for certain parties designated by name, not including McLane, and in the body of the brief the fact is
Motion overruled.