Caldwell v. Fraim

• Decision Date: 01 January 1869
• Citation: 32 Tex. 310
• Court: Texas Supreme Court
• Parties: J. H. CALDWELL AND ANOTHER v. M. C. FRAIM.

32 Tex. 310

J. H. CALDWELL AND ANOTHER

v.M. C. FRAIM.

Supreme Court of Texas.

1869.

1. The statute of this state (Pas. Dig. art. 5296) confers on landlords an absolute right to make themselves parties to suits brought against their tenants for the recovery of land, though no rule is prescribed as to the manner in which they may become parties.

2. The regular and most convenient mode of practice would be to apply, by oral motion, for leave of the court to be made a party; but this cause is not an imperative requirement, and the failure to preserve it is a formal rather than a substantial error.

3. In an action of trespass to try title and for damages incident thereto, if no answer be filed, the allegations of the petition are taken pro confesso by default, and nothing mere is needed than for the jury, under a writ of inquiry, to determine, from the evidence, the amount of unliquidated damages for the mesne profits. There is no occasion, in such case, for the plaintiff to adduce any proof of his title.

4. When a deed retains a lien on the land sold to secure payment of the purchase money, it does not invest the vendee with absolute title, nor with the right of possession as against the vendor, until the purchase money be actually paid, and, until then, the vendee cannot maintain suit against the vendor for possession.

5. Under our system of jurisprudence, the vendor, in such case, occupies the double attitude of vendor and mortgagee, until payment of the purchase money.

6. In states where the distinctive jurisdictions of law and equity are maintained, such a deed would be treated as a mere title bond, and could not be used as evidence in an action of ejectment for the purpose of showing title in the vendee.

7. In this state a perfect title is the union of both the legal and the equitable title, which may be accomplished by our courts in any proper case, if the necessary parties are brought in.

APPEAL from McLennan. Tried below before the Hon. A. J. Evans.

M. C. Fraim brought this action to the spring term (1869) of the district court of McLennan county, against J. H. Caldwell and Julius Griesenback, for three small parcels of land in the vicinity of Waco, comprised in what is known as the Harris place, and also as the Hamilton place. The petition averred that on the 18th of March, 1868, Charles A. Hamilton and his wife, M. M. Hamilton, sold and conveyed the land to the plaintiff, and delivered possession of it to him; that on the 27th of November, 1868, the defendants, agents and tenants of said Charles A. and M. M. Hamilton, entered upon the land and dispossessed the plaintiff; that the place was well improved and in a good condition for cultivation, having a house and all necessary out-houses, stables, cribs, etc., thereon; that the property was worth three thousand dollars, and the rents were worth at the rate of sixty-five dollars per month.

Petitioner prayed for a writ of sequestration, and that he have judgment for the title and possession of the land, and for the amount of the rents and revenues, etc.

There was service of citation on Caldwell and Griesenback, but they filed no answers.

On the 28th day of May, 1869, M. M. Hamilton, joined by her husband, filed an answer, which entered their appearance as the defendants to the suit, and denied all the allegations of the petition.

The case came to trial on the 29th of June, 1869. The plaintiff proved by Caldwell that he rented the land from Hamilton and wife in November, 1868, and that he, and Griesenback, as his tenant, held possession of it until after the suit was brought and until they were dispossessed by the service of the writ of sequestration issued in this cause. Plaintiff also proved that he had contracted to rent out the place for forty-two and a half dollars per month. He also put in evidence his deed from Hamilton and wife. The consideration expressed in it was a promissory note for $1,719, and an obligation for seventy-six beef cattle, made to Fraim by other parties, and by him transferred to Hamilton and wife.

The deed purported in the usual terms to convey and warrant the title to the land, but at the conclusion stated that “a lien is retained upon the property herein conveyed for the payment of the writings obligatory described above.”

It was duly acknowledged by Hamilton and his wife, and was filed for record on the day of its execution, March 18th, 1868.

There was no evidence that Fraim ever was in actual possession of the land.

Although, as already stated, the Hamiltons entered an appearance as parties and filed their answer, on the 28th of March, 1869, the case seems to have progressed to trial as though Caldwell and Griesenback were the only parties defendant. The entries in the record take no notice of the Hamiltons; the judge's charge to the jury treats the issues as though they were confined to the plaintiff on the one side, and Caldwell and Griesenback on the other; and the judgment of the court is in favor of the plaintiff and against Caldwell and Griesenback, taking no notice of the Hamiltons.

There was a motion for a new trial, based on alleged error in the instructions to the jury, and complaining that the jury found contrary to the law and evidence. As one cause for overruling this motion, the entry recites “and because it appears to the court that the paper filed in the cause, purporting to make Charles A. and M. M. Hamilton, as landlords, parties defendant, and purporting to be their answer, was not brought to the attention of the court nor read to the jury, and its existence unknown to the plaintiff until after the verdict and judgment in this cause was rendered.”

Caldwell and Griesenback appealed.

Norris, McCall & Sleeper, for the appellants, in support of the position that a deed retaining the vendor's lien does not pass the title, cited 21 Tex. 132;11 Tex. 597;27 Tex. 52;3 Tex. 462;8 Tex. 237; Id. 602; 6 Tex. 182;15 Johns. 456;3 Wend. 235. That a mortgagor cannot recover against a mortgagee in possession, without proving payment of the mortgage debt, they cited 12 Tex. 427;14 Tex. 144; Adams, Eject. 60.

Coke, Herring & Anderson, for the appellee. The appellants, Caldwell and Griesenback, were duly served with process, and as the record shows, were present in court by their counsel, and one of them (Caldwell) actually on the stand as a witness; yet they filed no answer, and neither they nor Hamilton and wife apprised the court of the existence of the paper now relied on as the answer of Hamilton and wife, nor did they apprise the jury or the plaintiff's counsel of the fact that such a paper was on file. All these parties stood by, saw the trial progress, heard the charge of the judge--which submitted to the jury issues to be decided between Fraim, the plaintiff, and Caldwell and Griesenback, the defendants, and never once intimated to court, jury or plaintiff the fact of which the record shows they were utterly ignorant: that Hamilton and wife had ever attempted to make themselves parties. Under these circumstances, we think we may, to silence the appellants here, well invoke the principle of law announced by Mr. Justice Catron, and quoted with approbation by Justice Wheeler, in Hopkins v. Donaho, 4 Tex. 338, “he who holds his peace when he ought to have spoken, shall not be heard now that he should be silent.” See, also, Pierson v. Burney, 15 Tex. 273.

The appellants do not even allude to this paper, denominated the answer of Hamilton and wife, in their motion for new trial, much less did they seek in the court below, even if it had been admissible for them to do it, to have the alleged error corrected. Pas. Dig. art. 1473; Sweeny v. Jarvis, 6 Tex. 44;Hillibrant v. Brewer, 6 Tex. 53. It was the privilege of Hamilton and wife, in a proper manner, if they desired it, to be made defendants in this suit. Pas. Dig. art. 5296. It was not compulsory on them to intervene. It was their right if they saw fit to exercise it. It was not the right of the appellants, that they should do it. It was a privilege to be enjoyed or declined, at the pleasure of Hamilton and wife, without reference to the appellants.

Now, Hamilton and wife did not move in the court below to have the verdict and judgment set aside. They have not appealed from the judgment of the court below They have made no complaint that they have been deprived of the privilege of defending this suit. This court must conclude, then, that Hamilton and wife, the parties alone interested in this question, are not aggrieved but satisfied, and if so, certainly the appellants cannot complain. Cheatham v. Riddle, 8 Tex. 166. If Hamilton and wife had made themselves parties defendant to the suit, and undertaken its defense, and thereby thrown the appellants off their guard, and caused them to believe that it was unnecessary for them to give further attention to it, and then had abandoned the defense, and judgment had been recovered against the appellants, and they were now here asking its reversal, with a record showing a motion to set aside the judgment in the court below on these grounds, sustained by affidavits, which had been overruled in the district court, their appeal would be a strong one to the equity powers of the court, though, as a matter of law, it is extremely doubtful if they would be entitled to a reversal of the judgment. But such is not the case. They were not thrown off their guard; they were represented by attorneys on the trial. See the judgment in transcript. They knew that Hamilton and wife were not defending the suit, because they were not heard of in the trial. They did not move in the court below to set aside the judgment, because Hamilton and wife had undertaken the defense, and become the real defendants. In their motion they allege no surprise; they do not pretend that they are not the proper parties defendant. They are heard for the first time to allege in this court that Hamilton and wife are the parties against whom the...