Clarke v. Koehler
| Decision Date | 01 January 1870 |
| Citation | 32 Tex. 679 |
| Parties | M. E. CLARKE AND OTHERS v. C. J. KOEHLER. |
| Court | Texas Supreme Court |
1. This court has repeatedly decided that original plaintiffs in a suit can not sell out their interest pendente lite, and make of their vendees new parties to the suit. This kind of champertous speculation will not be tolerated.
2. The appeal in this case was taken, not by an original party, but by a purchaser pendente lite of the plaintiff's interest. Held, that the appeal should be dismissed.
3. A purchaser of real estate is not chargeable with notice of an adverse equitable title in heirs, simply by reason of the fact that the ancestor of the heirs, six years before the purchaser acquired title, died in possession of the land--it not being proved that the purchaser knew that fact at the date of his purchase.
APPEAL from Harris. Tried below before the Hon. George R. Scott.
This is a suit brought in the district court of Harris county, on the 31st day of January, 1861, by Mary E. Clarke and her husband, Robert Clarke. She sues as an heir of John McCormack Church, against C. J. Koehler, for her interest in a part of a lot of ground in the city of Houston, described as twenty feet front on Congress street, by a depth of hundred and twenty-five feet, being the western part or side of lot No. 12, in block No. 20, in the city of Houston; and, also, for the rents and profits thereof, for unlawful occupancy.
At the spring term (1867) there was a trial, and on the special issues submitted by the court and answered by the jury, the court not being able to render a judgment, the cause was ordered to be tried anew.
W. H. Church, one of the heirs, makes himself a party, May 11th, 1867, and claims his interest.
In answer to the plea of defendant that the plaintiffs had sold their interest in the land to W. P. Hamblin, the latter answered, setting forth the facts, and making himself a party to prosecute.
There was a trial at the fall term (1868) of the court, and verdict and judgment for defendant, Koehler. A motion for a new trial was overruled; whereupon, W. P. Hamblin, the beneficiary, gave notice of appeal.
The facts proven on the trial are concisely stated as follows:
1. That J. McCormack Church died on February 5th, 1853, intestate, leaving M. E. Clarke (formerly Church), Horace J. Church and William H. Church, his children.
2. That previous to his death he had bargained for the land in controversy with W. R. Baker, and had paid a portion of the purchase money; that he went into possession of the same, and was occupying the same as a store when he died.
3. That shortly after his death his widow, Mrs. M. E. P. Church, drew, from money he had left on deposit with Shepard & Burke, one hundred dollars and paid the balance of the purchase money, and February 10th, 1853, took a deed in her own name, antedated as of 4th of September, 1852, to the land.
4. That Buckner bought, April 2d, 1858, of Mrs. M. E. Church, and Koehler bought of Buckner, March 28th, 1859, and is now in possession, and has made valuable improvements, and has paid state taxes thereon.
5. Value of land, $2,000; of improvements, $9,000.
6. That Horace J. Church is dead, intestate, and leaves no children.
7. That W. P. Hamblin has bought the interest of the two heirs, with power to continue the suit.
W. P. Hamblin, for the appellants. The appellants contend that the following is the law of the case:
1. That John McCormack Church, the ancestor of Mary E. Clarke, Horace J. Church and William H. Church, at the time of his death, had an estate in the property sued for, inheritable at law; and that at his death the said estate vested immediately in his heirs, of whom they were, and could not be divested except by their act, or the act of some one for them duly authorized. Ansley v. Baker, 14 Tex. 613;Chubb v. Johnson, 11 Tex. 469;Blair v. Cisneros, 10 Tex. 40;Bufford v. Holloman, 10 Tex. 571; Greenl. Cruise, Real Prop. vol. 2, ch. 2, tit. 29, Descent, § 3, note 2, and cases there cited; Rice v. White, 8 Ham. 216; Avery v. Dufrees, 9 Ham. 145, Ohio; Potter v. Potter, 1 Ves. 437; Greenl. Cruise, tit. 29, Descent, ch. 3, § 9; Pas. Dig. art. 1373.
2. The ancestors aforesaid being seized in fact of the land and in actual possession at the time of his death, such seizure and possession descended to his heirs aforesaid, without the necessity of entry after death of the ancestor, but they can bring their suit at any time before they are barred by limitation. Hill. Real Prop. vol. 1, pp. 82, 85; vol. 2, p. 184; Ridge v. Taylor, 4 Mass. p. 546; 2 Bla. 111, §§ 176, 177; Greenl. Cruise, vol. 2, p. 143, tit. 29, Descent, ch. 3, § 4; Id. § 11; Angell, Lim. § 343, note 6, and §§ 344, 345, 346, 372, 384, and note 2, pp. 378, 389; Smith v. Lorillard, 10 Johns. p. 338; Pet. p. 742; Barr v. Graty, 4 Wheat. p. 213.
3. The heirs aforesaid being seized and in possession by virtue of their ancestor's seizin and possession, such possession therefore was equivalent to the notice afforded by registration, and all subsequent purchases from Mrs. Church or otherwise were affected by it, and the heirs must recover. McCaskle v. Amarine, 12 Ala. p. 17;Dixon v. Locaste, 1 Smedes & M. 70, 107, and cases there cited; Daniels v. Davidson, 16 Ves. 249; Watkins v. Edwards, 23 Tex. 448;Wethered v. Boon, 17 Tex. 143; Kent, Com. vol. 4, p. 385.
4. Horace J. Church having died, they are entitled to recover his interest proportionally. Further, the deed from Baker to M. E. Church bore date previous to the death of John M. Church. This fact was notice that it was community property. It was a presumption in law that Buckner and Koehler could not ignore. And therefore the court below erred in not granting a new trial on the facts adduced on the trial and the law applicable to the same.
Henderson & Whitfield, for the appellee. The appellee, Koehler, is a purchaser for a valuable consideration and bona fide, and if there was any fraud upon the part of his vendor it can not affect his rights, unless it had been shown that he was a party to the fraud. Pierson v. Tom, 1 Tex. 577.
The main point upon which the appellant relies and hopes to obtain a reversal of the judgment of the court below is, that John Church died in possession of the land, which was constructive notice of title in him.
In the case of Woods v. Farmere, 7 Watts, 382, the principle is asserted that, apart from any registry, possession ought to put the purchaser on inquiry. Possession, said Chief Justice Sharkey, is evidence to creditors and purchasers of the conveyance; or, at least, is so strong a circumstance that it is now uniformly regarded as sufficient evidence of notice. 1 Smedes & M. p. 107.
These principles are all quoted in the decision of Watkins v. Edwards, 23 Tex. 449. The cases above cited differ from this in a very material point, and that is, that those opinions are based upon the fact that the purchasers had notice of the possession, but in this Koehler had no such notice. John M. Church died six years previous to his purchase, and no notice of Church's possession was ever brought home to him.
In the case of Wethered's Administrator v. Boon, 17 Tex. p. 143, the learned judge, in delivering the opinion, says that constructive notice is where the party, by any circumstance whatever, is put upon inquiry, which amounts in judgment of law to notice.
We insist that there was no circumstance that put Koehler upon inquiry. In searching the record of deeds the title in Mrs. Church was perfect. A deed of gift from Baker to her made the land prima facie her separate property, and as such she conveyed it.
It will be seen that the appellee deraigns title from Mrs. Mary E. P. Church, the mother of the appellant. The appellants deraign title from their ancestor, John McCormack Church, and upon the pleadings in this case the appellee was not required to show title at all, being in possession of the land by a deed duly recorded from Buckner--being the only...
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