47 Tex. 180 | Tex. | 1877
This was an action of trespass to try title, instituted on February 6, 1869, by J. L. Halbert, against Robert S. and E. S. Jemison. In Hovember preceding the commencement of this suit, Robert S. Jemison had been adjudged a bankrupt, and on July 6, 1869, his interest in the land sued for was, under orders of the bankrupt court, sold by his assignee, and was bid off by his co-defendant and brother, E. 8. Jemison, by whose instructions the assignee, on July 7, 1869, conveyed the same to the plaintiffs in error, the wife and children of Robert S. Jemison. On the same day, E. S. Jemison conveyed to the same parties all of his interest in said lands. It does not appear from the record whether citation had at this time been issued or service had on either defendant. On October 29, 1870, E. S. Jemison filed a disclaimer, in which he stated that “he has heretofore transferred all claim to the land in controversy,” and prays to be dismissed. On the same day, Amanda K. Jemison and the other plaintiffs in error filed a plea, in which they say that by leave of court they make themselves parties defendant, and suggest to the court the bankruptcy of R. S. Jemison, ancl defending the wrongs and injuries complained of; except to the petition; deny all its allegations; and say that they are the rightful owners of the land sued for. So far as the record shows, no objection was made to their becoming defendants. On the contrary, the subsequent
The facts developed in the trial are, that on November 11, 1859, one J. S. "Wofford, being then the legal and equitable owner of the land, in consideration of the obligation of Edna Peek for two hundred and sixty bales of cotton, payable in four equal annual instalments, executed to her his title bond, witnessed by the defendant in error, binding himself, on payment of said obligation, to make her a good title to the land sold. On the 7th of February, 1860, Wofford, then living in Mississippi, transferred the obligation of Mrs. Peck to R. S. and E. S. Jemison. In April, 1863, Edna Peck, for an expressed consideration of $12,000, conveyed the land to R. S. and E. S. Jemison, and transferred to them the title bond of Wofford. Previous to this, however, viz., October, 1860, judgment had been rendered in the District Court of Eavarro county, where the land lies, in favor of W. G-. Lane & Co., against J. L. Wofford and another, for $797.74; also against Edna Peek, as garnishee, (on what indebtedness does not appear,) for the same sum. These judgments were duly recorded; and on the judgment against Mrs. Peck, execution issued in March and July, 1861, and February and April, 1868, under which last execution, and at the same time under an execution on the judgment against Wofford, the land in controversy was levied on and sold to the plaintiff, J. L„ Halbert, for the sum of §50. Halbert was the attorney who controlled the execution. It was in evidence that the attorney for the Jemisons publicly forbid the sheriff’s sale at the time and place it was made. It was further in evidence that R. S. Jemison went into bankruptcy, and placed on his
On the part of defendant in error, it is contended that Mrs. Jemison and her children, the plaintiffs in error, are purchasers pendente lite from E. S. Jemison, one of the original defendants; that, as such, they could not come in and defend, nor can they now prosecute a writ of error. It may be questioned whether the record shows a lis pendens at the time the conveyances were made to plaintiffs in- error. The petition had been filed, but there is nothing to show that citation had issued or been served on either defendant. Whether, under these circumstances, they can be said to have purchased pendente lite, is a question not free from difficulty, but one which we do not now feel called upon to decide. (Story’s Eq. Pl., sec. 156.)
Moreover, it will be observed that the title of Mrs. Jemison and children to the undivided half of the land came through a sale in bankruptcy, and not through a voluntary sale by a defendant. Certainly the institution of this suit did not interfere with the bankruptcy proceedings already pending; and the assignee in bankruptcy, or his vendees, should have been the parties sued, and might come in and defend. Again, whilst the rule is unquestioned that he who purchases during the pendency of the suit, need not be made a party, but is bound by the decree against the person from whom he derives title, this rule does not forbid the introduction of purchasers from the defendant as new parties defendant, at the will or with the assent of the plaintiff. (Story’s Eq. Pl., sec. 156; Story’s Eq., sec. 908.) In this case the fair inference from the record is, that no objection was made to the plaintiffs in error coming in as defendants; and as the plaintiff treated them as properly defendants, and took judgment against them, divesting their title, they certainly are entitled to prosecute a writ of error from that judgment.
In regard to the merits of the case: Wofford, at the time
The fair inference, from the evidence, is, that the conveyance by Mrs. Peck to the Jemisons, in 1863, before the last payment on her purchase was due, was in consideration of her indebtedness to them for the land. It is claimed that, although the Jemisons had a lien which was superior to the judgment lien, there was no power in Mrs. Peck to give, nor in them to receive, title freed from the judgment liens; and it is further contended, that by accepting that conveyance, the Jemisons extinguished their lien, and took the property subject to the judgment lien. As to the first proposition, it is not denied by appellees that the judgment creditor, and the plaintiff, as standing in his shoes, would, notwithstanding the conveyance, be entitled to have the judgment paid if the land was of sufficient value to do so after first paying their prior liens. If the plaintiff, instead of
This suit, however, was brought and tried as an action of trespass to try title, and involved no other issues. Whilst neither party exhibited a legal title, the equities of the defendants were superior, and the plaintiff failed to make out a case authorizing Mm to disturb their possession. Because, under the facts in evidence, the court erred in rendering judgment
Reversed and remanded.
[Associate Justice Moore did not sit in this case.]