Wortham v. Boyd , 66 Tex. 401 ( 1886 )

Willie, Chief Justice.

The object of the suit as it was originally brought by Mrs. Mary A. Blocker against King and Ham was to set .aside an alleged fraudulent sale of land made by Marshall to D. W. King, and to subject the land to a debt due by the former to the plaintiff in that action. D. W. King having previous to the commencement of the suit sold a part of the land to Ham, the latter was necessarily made a party defendant in order to divest the title acquired by him. For this purpose it was alleged that Ham bought the one hundred acres conveyed to him by D. W. King with knowledge that the conveyance from Marshall to D. W. King was made in fraud of the former’s creditors, and prayer was made that both conveyances be can-celled, and the whole land subjected to Mrs. Blocker’s debt against Marshall King. The suit was in effect one to annul conveyances made in fraud of the plaintiff’s rights, and to declare the land conveyed to be subject to a debt due her from the original fraudulent vendor. Upon Ham’s notice of the fraud the whole case was rested, so far as he was concerned, and to this case Ham’s answer was a complete defense. He denied all knowledge of the fraud, and alleged that he was an innocent purchaser, and had paid most of the purchase money before the suit was brought. If the proof sustained Ham’s allegations the plaintiffs’ case necessarily failed, and Ham’s title to the land was valid. The plaintiff’s case did fail by her own confession, for she admitted the truth of Ham’s defense, and declined to attack his conveyance. She, in her pleadings, admitted facts which validated Ham’s deed, set up different grounds of action against him, and founded upon them a prayer for a different judgment. In her original petition she said Ham had notice of King’s fraud, his deed was therefore void, gave him no title and must be cancelled. In her amended petition she said “Ham had no notice of the fraud, his deed is valid and his title to the land good, my original allegations were not true and I now ask that the deed be confirmed and that I have judgment for the unpaid purchase money due by him on the land.” It is a general principle of equity that one who purchases pending a suit in which the title to land, or a lien upon it is involved, does so subject to the final judgment in the cause, his title must abide the result of the suit, whether he be made a party or not. It shares the fate which would have befallen the title had it remained in his vendor. But the title of the Us pendens purchaser is not affected, unless the suit is brought to a successful termination as against his vendor. 2 Pom. Eq., sec. 634. Should it be ended by a dismissal, or abandonment by the adverse party the rights of the purchaser remain as if the suit had never been commenced. JSTo subsequent suit founded upon the same cause of action, much less one which seeks a different remedy for different reasons against the same land, can interfere with his title or bind it by the judgment rendered in the cause, unless he is made a party thereto. But the abandonment of one cause of action and the adoption of a new one, by amendment, is, in effect, the dismissal of the former suit and the-commencement of a new one upon a different cause of action. Hence the necessity for making all persons, whose interests are to be affected by a judgment upon the amended pleadings, parties to the suit. If they were already parties and had appeared and answered, and were, therefore, before the court, they would be bound to take notice of the amendment without any additional service upon them; if not, such service would be necessary to bind them by the newly sought decree. In our decisions such an amendment is always treated as a new suit, and all defenses accruing down to the date of the amendment -may be pleaded in bar of the action, and the costs of the old suit are charged to the plaintiff.

Hence a party who buys the property in controversy during the progress of the suit under the original pleading, is a Us pendens purchaser-only as to the controversy created by them. As to the new controversy between the parties, he has purchased before suit brought, and cannot be affected by any judgment rendered therein, unless made a. party to the cause. It is the policy of the law to prevent alienations of property in litigation which place it beyond the reach of the successful party, and compel him to submit to another suit for its recovery;, but it is also the policy of the law that no unfounded demand shall tie up property in the hands of a party to a suit until his adversary can reach it by a claim to mature or be procured in the future, or one which he held, but would not assert, at the commencement of the suit. Purchasers Me pendente must take notice of everything averred in the-pleadings pertinent to the issue or to the relief sought. Center v. Bank, 22 Ala., 757. Of what may appear upon a different state of pleading, when different matters requiring a different judgment are subsequently alleged, or parties seeking relief upon other titles, and state of facta are subsequently introduced, they are not chargeable with notice. A new equity set up in an amended bill creates a new Us pendens, dating from the filing of the amendment. Freeman on Judg., sec. 199; and Ms pendens, is not notice of every equity which may possibly arise out of the matters in question in the suit. Shallcross v. Dixon, T. L. J. Ch. N. S., 180.

It has been held that a plaintiff cannot set up a new equity so as to affect a purchaser who bought previous to the filing of the amendment in which it is alleged, though the prayer for relief be not changed. Stone v. Connelly, 1 Metc., (Ky.) 653. Much less will the amendment affect such a purchaser, if the equity be different and contradictory of the original bill, and the relief be of a wholly different character. A bill cannot be thus amended so as to relate back to the time of filing the original bill, so far as the pendency of the suit can affect others than the parties to the suit, but the cause is considered as pendent only from the time of the amendment. Mitf., P. C., 400.

Mrs. Wortham having bought pending the suit for a cancellation of the deed to Ham, was chargeable with notice that if the plaintiff obtained the relief she sought, upon the grounds set forth in her petition, her title would be divested by the judgment against Ham; she was not chargeable with notice that the plaintiff might withdraw these allegations, and substitute others of a wholly different and opposite character and seek to procure a sale of the land for a lien not claimed in' his original petition, and which would not have existed had that petition correctly stated the facts of the case. 2sTo lien not asserted in the original petition could be set up by amendment so as to affect her right in the land without making her a party to the suit. The sale under the judgment, therefore, did not divest her title, nor vest any in the purchaser at the sale, and her vendee, the appellee, had none upon which he could recover in this action.

The court below erred in rendering judgment for the appellee, and that judgment is reversed and will be here rendered for the appellant for the land in controversy and costs of this court and the court below.

Reversed and Rendered.

[Opinion delivered May 11, 1886.]