3 Tex. 192 | Tex. | 1848
delivered the opinion of the court.
This was a suit brought by the plaintiff to foreclose a mortgage.
The petition states that the defendant, Stephen G. McOlen-
That in 1842 the trustee died, and in the fall of that year Stephen G. McOlenney, without any consideration, transferred the negroes to Joseph Floyd, his then father-in-law. Plaintiff alleges that this transfer was fraudulent, and that Stephen G. McOlenney retained possession of the negroes. That Joseph Floyd, dying intestate, George A. Floyd, his administrator, sued Stephen G. McOlenney for the negroes, which suit is still pending.
This suit was commenced on the 15th of December, 1847; the petition was taken as confessed against all the defendants except Floyd and Stephen G. McOlenney.
On the 31st of March, 1848, Floyd filed a general demurrer, and other defenses; and at the succeeding term, without leave of the court, filed his exceptions, setting up the statute of limitations.
The defendant, Stephen G. McOlenney, for answer filed a general denial, and answered certain interrogatories in-the case.
The court sustained the demurrer and exceptions of Floyd, and dismissed the suit as to him; and the cause coming on to be heard as to the defendant Stephen G. McOlenney, the suit was also dismissed as to him. To reverse the decrees above stated the plaintiff obtained a writ of error.
This we believe to be sound doctrine, and we have so decided in this court — Graham vs. Vining & Vining, and Standifer vs. Johnson; and it has been repeatedly so ruled in Louisiana. .
There is another ground on which the demurrer might well have been sustained. The petition does not contain any averment that would let in proof that the defendant, claiming as purchaser, had either actual or constructive notice of the lien that it set up in the plaintiffs’ petition. Its execution in Alabama, and its record there, could not affect either creditors or purchasers here, without notice actually brought home to them, or such facts brought to their knowledge as to have amounted to notice. [See Crosby vs. Huston, 1 vol. Texas Rep. p. 203.]
There is another ground on which it is not clear but that the demurrer was well taken.
The plaintiffs show in their petition a suit pending between Stephen G. McClenney and the defendant Floyd, founded on the transfer of the negroes to Joseph Floyd; they do not allege that the suit had been collusively instituted aud conducted between them. In that suit Floyd, the administrator,-sues for the negroes, and the vendor of his intestate contests the validity of the sale; and under such circumstances it is not so clear that he could be called on in this action to sustain and litigate a matter already before a court of competent jurisdiction. The plaintiffs could have had their rights, if any, well secured by proceeding against their debtor, Stephen G.'McClenney, in the event of his succeeding in defeating -the claim of Floyd, and upon that it seems to be clear that their recourse must depend at last."- On this point, however, it is not necessary to decide;
On the former grounds, we are satisfied that there is no error in the decree dismissing the petition on the demurrer of Floyd.
As to the correctness of the decree on the bill, answer and
The decree of the court below, sustaining the demurrer of the administrator of. Joseph Floyd, and dismissing the cause as to him, is affirmed with costs against the plaintiff in error.
. But the decree of the court below, dismissing the cause as to the defendant, Stephen G. McClenney, is reversed, with costs