Boothe v. Feist

• Decision Date: 06 March 1891
• Citation: 15 S.W. 799
• Parties: BOOTHE v. FEIST <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 799

BOOTHE v. FEIST et al.

Supreme Court of Texas.

March 6, 1891.

Appeal from district court, Harris county.

Price & Green and A. T. Patrick, for appellant. E. Raphael and C. W. Bocock, for appellees.

GAINES, J.

This suit was brought by appellee Rosa H. Feist, joined by her husband, against appellant, and also against E. W. Cave and E. H. Vasmer. It was alleged in the petition that Rosa Feist was the owner of a certain tract of land therein described, lying in Harris county, and that, in order to secure the payment of the sum of $500 borrowed by her husband of the appellant, she, together with her husband, executed to appellant a conveyance in form an absolute deed, but which was intended as a mortgage of the land only. It was further alleged that Boothe, in order to defraud the plaintiff Rosa, colluded with his co-defendant Cave to make a sale to him of a part of the land, and accordingly conveyed such part to Cave, who had knowledge of the plaintiffs' rights in the premises. A similar allegation was made with reference to a conveyance of the remaining parcels to defendant Vasmer. The plaintiffs pray for a recovery of the land; and, in the event that the court should be of the opinion that they were not entitled to that relief, they prayed that the plaintiff should have judgment against defendant Boothe for its value. The residence of Boothe was alleged to be unknown, but plaintiffs averred that they believed it to be in De Witt county. Cave and Vasmer were alleged to reside in Harris, the county in which the suit was brought. The defendant Boothe interposed a plea in abatement of the suit, in which he alleged "that before and at the commencement of this action and of service of process herein he, the said defendant, resided in the county of De Witt and had his domicile therein;" that the defendants Cave and Vasmer are bona fide purchasers for value without notice of plaintiffs' pretended adverse claim, and never colluded with defendant Boothe, as charged by plaintiffs; and defendant has parted with all claim of rights, title, and interest in and to said land long prior to the institution of this suit, which facts were well known by plaintiffs, who brought suit for said land, and joined the said Cave and Vasmer as the said Boothe's co-defendants for the purpose of maintaining action against said defendant out of the county of his residence for the alleged wrong complained of by plaintiffs; and all of this defendant is ready to verify. A demurrer was sustained to this plea, and in this ruling there was no error. It is well settled that whenever a defendant pleads his privilege of being sued in the county of his residence he should aver not only that he resides in some other county than that in which he is sued, but also that he is not a resident of the latter county, and should also negative the existence of every state of facts which would give the court jurisdiction of the suit. Admitting, then, that the plaintiffs knew they could not recover the land as against defendants Cave and Vasmer, and that they made them parties defendant for the fraudulent purpose of depriving the defendant Boothe of the privilege of being sued in De Witt county, there still remains in the petition allegations of fact which set up a cause of action against Boothe for his breach of trust. I, the deed made to him by plaintiffs was intended...