Bosse v. Cadwallader

• Citation: 23 S.W. 260
• Court: Court of Appeals of Texas
• Decision Date: 20 September 1893
• Parties: BOSSE v. CADWALLADER et al., (OGDEN et al., Interveners.)<SMALL><SUP>1</SUP></SMALL>

23 S.W. 260

BOSSE v. CADWALLADER et al., (OGDEN et al., Interveners.)¹

Court of Civil Appeals of Texas.

September 20, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Trespass to try title by Henry Bosse against A. H. Cadwallader and others. Charles W. Ogden and Sam M. Johnson intervened, and A. G. Clark was made a party. From a judgment for plaintiff, Ogden and Johnson appeal. Reversed.

William Aubrey, for appellants. C. H. Clifford and B. L. Aycock, for appellee.

NEILL, J.

On August 18, 1885, the appellee, Henry Bosse, filed his petition in the district court of Bexar county in the ordinary form of trespass to try title against A. H. Cadwallader and J. D. Snyder to recover lots 3 and 4, block 8, in the city of San Antonio. On September 5, 1885, the defendants Cadwallader and Snyder filed their answer, in which they pleaded not guilty, and that they occupied the premises sued for as tenants of Sam M. Johnson, praying that Johnson be cited as a defendant in the cause, and that they be dismissed, with their costs. On March 9, 1886, the appellee, Henry Bosse, filed in the cause what he styled his "first supplemental petition" to his original petition, in which he alleged that the title of Johnson to the lots was null and void, for the reason that A. G. Clark, under whom he alleged Johnson claimed the premises, being insolvent on the 24th day of November, 1882, made a pretended conveyance of the property to R. M. Moore, reserving in himself the beneficial use and enjoyment of the property, as well as the real title, and that on the 5th day of February, 1885, the said Moore, at the request of Clark, with full notice of the want of title in him by Johnson, and of his purpose thereby to defraud his creditors, pretended to convey the lots to Johnson; that plaintiff was a creditor of Clark's, and that the conveyance was made to hinder and delay him in the collection of his debt. On September 10, 1889, Sam M. Johnson and Charles W. Ogden, styling themselves "interveners," filed what they termed an "amended original answer," in which they pleaded not guilty, a general denial, and a special answer, to the effect that if, as charged by plaintiff in his supplemental petition, the title to the property was not absolute and indefeasible, the same was held by Johnson under a conveyance to Moore to secure Charles W. Ogden in the payment of $1,500 due by Clark to him, and to indemnify Ogden against certain general warranties of titles to lands sold by Clark to Ogden, and which Ogden had sold to other parties. They prayed that Clark be made a party to the suit, and that, if plaintiff recovered the land sued for, he should recover only subject to said rights of Ogden to the premises, and that he be first compelled to pay off and discharge the indebtedness due Ogden, and indemnify him against his liability upon said covenants of warranty, or, failing in that, Ogden have judgment, with a decree against all parties foreclosing his alleged lien, etc. A. G. Clark, on the 29th day of August, 1889, accepted service on said answer, waived notice, and agreed that such acceptance and notice should have the full force and effect of an appearance by him for all purposes of the suit, but he never filed an answer. On November 30, 1889, plaintiff filed his "second supplemental petition," excepting generally and specially to defendant's said amended answer, and pleading, in effect, the facts alleged in his first supplemental petition, and sought to avoid the deed from Moore to Johnson as fraudulent. On December 13, 1889, the case came on for trial. A jury was impaneled, the evidence of the plaintiff introduced, whereupon Johnson and Ogden demurred to plaintiff's evidence, and offered no evidence themselves. Issue was joined on the said demurrer, and, the jury being discharged, the court held the demurrer to plaintiff's evidence not well taken, overruled the same, and gave judgment for plaintiff. The court, upon the trial, found the following conclusions of facts: "First. A judgment of the district court of Bexar county, 37th 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 three hundred and twenty-five dollars. 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 of 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 Bexar county. Third. That the plaintiff, Henry Bosse, at the sale, bought the lots in controversy. Fourth. The sheriff of Bexar county, in pursuance of said sale, conveyed by his deed, dated August 11, 1885, said property to the 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 24th day of November, 1882, duly recorded 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. Plaintiff rested his case, and defendants demurred to plaintiff's evidence, without introducing any testimony." Upon the foregoing facts, the court below found the following conclusions of law: "First. That, when plaintiff introduced in evidence defendants' deeds for the purpose only of proving a 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 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 proved, 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 the judgment rendered for defendants. Sixth. But defendants' deed 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 plaintiff."

By bills of exceptions taken on the...