Jemison v. Halbert , 47 Tex. 180 ( 1877 )

Gould, Associate Justice.

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 proceedings take no notice of R. S. Jemison, except that it appears from the statement of facts that he was dead when the case was tried in March, 1871. A jury was waived and the cause submitted to the court, and judgment was rendered in favor of the plaintiff, against E. S. Jemison, Amanda K. Jemison, and the other plaintiffs in error, for the recovery of the land sued for; and from this judgment, Amanda K. Jemison and her children have sued out a writ of error.

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 schedule the undivided half of the lands in controversy, with a note that it was claimed by J. L. Halbert.

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 judgment was rendered against him, had not only sold the land and given his hond for title, but had also transferred the obligation which he held for the purchase-money. His entire beneficial interest in the land was gone. True, he held the legal title; but he held it simply in trust for the holder of the obligation of the purchase-money and the holder of the title bond. Certainly, he had no interest to which a judgment lien could attach, unless, under the registration laws, on the ground that the judgment creditor or the purchaser had no notice of his sale by title bond, and in this case there seems to be no ground for such a claim. Mrs. Peek, at that time, had no legal title, but, under the title bond, had a right to demand title on payment of the purchase-money. The lien of the judgment against her only attached to this equitable interest, and, under the facts, the most that can be claimed for the purchaser, under the execution against her, is, that he acquired her equitable right, and that he may be entitled to be subrogated to the lien of the judgment creditor. (Blankenship v. Douglas, 26 Tex., 225; Freeman on Judg., secs. 338-357; Harrison v. Oberthier, 40 Tex., 385.)

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 claiming title to the land, had sought to have it sold, and the proceeds thus applied, his case would have been very different. In support of the proposition, that by taking the conveyance, the lien for the purchase-money was lost, counsel refer to the case of Cook v. Love, 33 Tex., 490. In that case, land was sold under a judgment subsequent in date to the levy of an attachment. The'attaching creditor took from his debtor a conveyance of the land attached, but did not prosecute his attachment lien to judgment, contenting himself with a judgment in personam. The court held that they were unable to say, whether there was any validity in the attachment or not; that it could only have operated as an inchoate lien; and to make it avail as against the judgment lien to support the deed, it should have been carried into judgment. In the case before us, the existence of a valid and superior lien in the hands of the Jemisons is established, and that lien was sufficient to support the deed. Ho reason is perceived why the voluntary action of the parties was not as efficacious as a foreclosure suit against Mrs. Peck alone, nor why such voluntary action, any more than such a foreclosure suit and sale, should operate to extinguish the lien of the Jemisons, or to destroy the precedence of that lien. If, under such a foreclosure, the Jemisons had bought in the land, it is not believed that the holder of a junior lien, who was not a party to that suit, would be precluded from having the land again sold, and the excess of the proceeds, over the amount of the preferred lien, applied to the payment of his demand; nor is it believed that the Jemisons would thereby have lost their right to have their claim paid first.

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 in favor of the plaintiff, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Associate Justice Moore did not sit in this case.]