Bosse v. Cadwallader

• Citation: 24 S.W. 798
• Parties: BOSSE v. CADWALLADER et al., (OGDEN et al., Interveners.)
• Decision Date: 22 January 1894
• Court: Supreme Court of Texas

24 S.W. 798

BOSSE v. CADWALLADER et al., (OGDEN et al., Interveners.)

Supreme Court of Texas.

January 22, 1894.

Error from court of civil appeals of the fourth supreme judicial district.

Action of trespass to try title by Henry Bosse against A. H. Cadwallader and others, in which Charles W. Ogden and Sam M. Johnson intervened and became the real defendants, and to which A. G. Clark was made a party. A judgment for plaintiff was reversed by the court of civil appeals, (23 S. W. 260, 730,) and plaintiff brings error. Reversed.

B. L. Aycock, C. H. Clifford, and Buekler & Martin, for plaintiff in error. Wm. Aubrey, for defendants in error.

BROWN, J.

August 18, 1885, Henry Bosse filed a petition in the form of trespass to try title in the district court of Bexar county against Cadwallader and Snyder to recover of them lots 3 and 4, in block 8, in the city of San Antonio. September 5, 1885, defendants filed an answer consisting of a plea of not guilty, and that they claimed no interest in the land, but held the same as the tenants of Sam Johnson, and praying that he be made a party defendant to the suit. On the same day Johnson filed a plea of not guilty, — March 9, 1886, — the plaintiff, anticipating the defense of Johnson under his plea of not guilty, filed what is styled a "first supplemental petition," alleging in substance that he was a creditor of A. G. and Cyrene Clark, and obtained a judgment against them in the district court of Bexar county, caused execution to be issued on the judgment, and levied on the lots in question, which were sold under the levy, and plaintiff bought them, receiving a deed therefor; that Clark and wife, being indebted to the plaintiff, made the deed to Moore for the purpose of defrauding their creditors, and especially plaintiff; that it was not intended that the title should pass to Moore by the deed, but the title and beneficial interest remained in Clark; that no consideration was paid by Moore, and he conveyed to Johnson without consideration, and with full notice on Johnson's part of the purpose of making the deed. Under the pleading as above stated the parties went to trial, and judgment was rendered in favor of the plaintiff for the land, subject to the right of Johnson to hold the possession until the sum of $1,500 was paid or deposited in court in discharge of a mortgage lien in favor of C. W. Ogden, which was declared to be created by the conveyance by Moore to Johnson. Plaintiff appealed to the supreme court, which reversed the judgment, and remanded the cause for a new trial, for the purpose of permitting the defendant to make proper parties, and foreclose the mortgage in favor of Ogden if it could be established, but, under the facts, holding that plaintiff was entitled to recover, and to his writ of possession. Bosse v. Johnson, 73 Tex. 608, 11 S. W. 860. Upon the case being returned to the district court, Sam Johnson and C. W. Ogden, styling themselves interveners, filed an amendment to Johnson's answer, consisting of special exceptions, plea of not guilty, general denial, and special plea setting up that A. G. Clark was indebted to Ogden & Ogden and Ogden & Johnson, tracing the indebtedness through changes finally as due to C. W. Ogden in the sum of $1,500, and that, being so indebted, Clark caused R. M. Moore, in whom the legal title was, to convey the lots to Johnson as trustee, to hold and sell for the payment of the debt, and to indemnify Ogden on liabilities incurred in selling land for Clark. They prayed that Clark be made a party defendant, and, in case the plaintiff should recover the land, that judgment be given that plaintiff be first required to pay the debt, and secure Ogden against the liabilities incurred, before writ of possession issue; or, if the court would not so enter judgment, then that judgment be given foreclosing the lien upon the lots in favor of Ogden. A. G. Clark accepted service of the plea, but filed no answer. November 30, 1889, plaintiff filed a second supplemental petition, alleging in substance the same as in the first, with the addition of a denial of the existence of any debt to Ogden from Clark, and charging a combination between Johnson and Ogden and Clark to defraud him of his debt; with other allegations not necessary to reiterate here. The parties went to trial before a jury. Plaintiff having closed his testimony, the defendants Johnson and Ogden demurred to the evidence, which was joined in by plaintiff, and the jury discharged. The court rendered judgment for plaintiff, and filed the following findings of fact and conclusions of law, all of which were excepted to by the defendants and Johnson and Ogden:

Findings of Fact.

First. A judgment of the district court of Bexar county, (thirty-seventh judicial district,) rendered May 19, 1885, in case No. 2,074, in favor of plaintiff, wherein Henry Bosse recovered against A. G. Clark, Cyrene Clark, T. D. Clark, T. S. Harrison, and John Crosby, composing the Lytle Coal Company, for the sum of $325. Second. Execution on said judgment, issued June 13, 1885, and levied on the property in controversy on the 15th day of June, 1885, by the sheriff of Bexar county; also said sheriff's return, showing said levy and sale at public vendue before the courthouse door at said Bexar county on the first Tuesday, it being the 7th day, of July, 1885, the property having before that time for twenty days been advertised at three public places in Bexar county, one of which was the courthouse door of said county. Third. That the plaintiff, Henry Bosse, at said sale bought the lots in controversy. Fourth. The sheriff of said Bexar county, in pursuance of said sale, conveyed by his deed dated August 11, 1885, said property to this plaintiff, Henry Bosse; that said deed was duly authenticated, and recorded in the records of Bexar county, August 15, 1885. Fifth. That plaintiff introduced the following original deeds, for the purpose of showing a common source of title, and so stated his purpose in so doing, and proved their execution as at common law: (1) Deed from A. G. Clark and Cyrene Clark, his wife, to R. M. Moore, conveying said two lots, and two others in the same block, dated the 24th day of November, 1882. (2) Deed from Moore to Sam M. Johnson, conveying the same property, dated February 5, 1885, and duly recorded the 5th day of February, 1885. Sixth. The plaintiff rested his case, and the defendants demurred to plaintiff's evidence, without introducing any testimony.

Conclusions of Law.

First. That when plaintiff introduced in evidence defendants' deeds for the purpose only of proving common source, said deeds were not in evidence for any other purpose, nor could they be considered, when thus offered, as evidence of title in the defendants. Second. That under article 4802, Rev. St., plaintiff could prove common source by original deeds, as well as by certified copies, and when thus offered they were not evidence of title in defendants. Third. Said article of the Revised Statutes should be liberally construed, with a view to effect its object, and promote justice. Fourth. That if common source under the Revised Statutes can only be proved by certified copies, it can still be proven as at common law by original deeds, and when offered for that purpose only they are not evidence of title in defendants. Fifth. If all the deeds were in evidence for the purpose of proving title, then the superior title is in defendants, and the demurrer to the evidence should have been sustained, and judgment rendered for the defendants. Sixth. But, defendants' deeds being in evidence only for the purpose of proving common source, and plaintiff's deeds being the only evidence of title, the plaintiff showed the superior title, whereupon the demurrer was overruled, and judgment rendered for the plaintiff.

On the trial plaintiff offered in evidence a judgment of the district court of Bexar county in favor of Henry Busse against A. G. Clark and Cyrene Clark and others not necessary to mention. Also an execution issued upon said judgment which ran in the name of Henry Busse against the said Clarks and others, together with the return of the sheriff, showing a levy upon the lots in controversy, advertisement and sale, and that Henry Busse was the purchaser at the sale. Defendants Johnson and Ogden objected to the introduction of these instruments, because they varied in the name of the plaintiff therein, "Busse," from that alleged in the petition, which was "Bosse." The court overruled the objection, and the evidence was introduced. Plaintiff also offered to read in evidence a deed from the sheriff of Bexar county to Henry Bosse for the lots in controversy, which recited the execution as being in favor of Henry Bosse, and that Henry Bosse purchased the lots levied upon and sold under said execution, which are the same as here sued for. Defendants objected to the introduction of this deed, because it did not follow the execution, levy, and judgment in the name of Busse. The court overruled the objection, and admitted the evidence. The correctness of the ruling of the court in admitting the judgment, execution, and deed over the objections of the defendants depends upon whether or not the names "Busse" and "Bosse" come within the rule of idem sonans. The question is addressed to the ear and not to the eye. "If the attentive ear finds difficulty in distinguishing them when pronounced," they will be considered as idem sonans. Robson v. Thomas, 55 Mo. 581. It is a safe rule "that if the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial," and the rule of idem sonans is to be applied. Rooks v. State, 83 Ala. 80, 3 South. 720; Ward v. State, 28 Ala. 53; Henry v. State, 7 Tex. App. 392. "In the pronunciation of names greater latitude is allowed than in any other class of words." Rooks v. State, and Ward v. State, supra. The...