Gabb v. Boston

• Decision Date: 21 March 1917
• Docket Number: (No. 2468.)
• Citation: 193 S.W. 137
• Parties: GABB et al. v. BOSTON et al.
• Court: Texas Supreme Court

193 S.W. 137

GABB et al. v. BOSTON et al.

(No. 2468.)

Supreme Court of Texas.

March 21, 1917.

Error to Court of Civil Appeals, First Supreme Judicial District.

Action by Mrs. L. B. Gabb and another against Monroe Boston and others. A judgment for defendants was affirmed by the Court of Civil Appeals (149 S. W. 569), and plaintiffs bring error. Affirmed.

J. M. Gibson, R. H. Holland, and Jno. B. Warren, all of Houston, for plaintiffs in error. E. P. & Otis K. Hamblen, E. H. Bailey, W. W. Anderson, and Hardy & Roberts, all of Houston, for defendants in error.

PHILLIPS, C. J.

The suit was one instituted by Mrs. L. B. Gabb against a number of defendants for the recovery of a half interest in a tract of land of 94¾ acres which she claimed was community property of herself and her former husband, C. J. Ochse. The defendants claimed title under one J. M. Cobb, in whose favor a judgment for the land had been previously decreed against Ochse in a suit to which Mrs. Gabb was not a party.

The question in the case is whether this judgment is binding upon Mrs. Gabb.

Briefly recited, the facts are these: The land was originally owned by Thomas R. Farrell. In 1884, he made a deed conveying it to his minor son, B. F. Farrell, which, as he claimed, was not to take effect until his death. In some way, however, the deed was filed for record the day following its execution. Such title as the community estate of Ochse and Mrs. Gabb, then his wife, acquired to the land was in virtue of a deed from B. F. Farrell, conveying it to Ochse, dated September 18, 1900.

Mrs. Gabb filed a suit for divorce against Ochse, on December 24, 1900, alleging the land to be their community property and praying for its partition. She subsequently abandoned all claim to it. This was recited in the divorce decree, which was rendered in her favor on March 15, 1901.

Shortly after the institution of this divorce suit, that is on January 29, 1901, Thomas R. Farrell and B. F. Farrell filed suit for the land against Ochse, alleging that he had fraudulently obtained the deed from B. F. Farrell and praying for its cancellation; also, that the title to the land had never passed from Thomas R. Farrell and that this was known to Ochse when he obtained the deed from B. F. Farrell. Later, on June 11, 1901, Thomas R. Farrell, by an amended petition in the suit, made B. F. Farrell a party defendant, repeating the allegations of fraud on the part of Ochse in the procurement of the deed from B. F. Farrell, declaring that the deed from himself to B. F. Farrell was never delivered, and praying that both deeds be canceled. To this pleading, B. F. Farrell made no answer. Ochse answered generally in the suit, and by an affirmative plea alleged his title to the land. Although the pleadings of the parties were several times amended, the cause of action asserted against Ochse remained unchanged.

On May 28, 1902, B. F. Farrell conveyed the land to J. M. Cobb. On the following day, Cobb, by leave of the court, filed an intervention in the suit of the Farrells against Ochse, seeking the recovery of the land against all parties, setting up the conveyance of B. F. Farrell to himself. His petition likewise alleged that Ochse had fraudulently obtained the deed from B. F. Farrell, and sought its cancellation as a cloud upon his title.

Final judgment was rendered in the suit on June 3, 1902. The judgment decree recited the due appearance of all the parties; that Ochse through his attorneys announced that he did not care to defend the cause further; and that T. R. Farrell and B. F. Farrell by their attorney agreed that Cobb was entitled to the land. It canceled the deed from B. F. Farrell to Ochse and decreed the land to Cobb. Before filing his intervention, Cobb had paid Ochse $700.00 for his claim to the land and procured from him a quit claim deed.

The defendants purchased from Cobb upon the faith of the judgment rendered in the cause of Farrell v. Ochse, which decreed him the land. They had no notice that Cobb had purchased Ochse's claim and obtained from him a quit claim deed. The abstract of title, examined by the attorneys for all the defendants except Mrs. Wilson, revealed the filing of the respective suits which have been referred to, the dates when filed, and the judgments therein respectively rendered.

At the time the divorce decree was rendered in her suit against Ochse, Mrs. Gabb knew that the suit of the Farrells against Ochse, seeking the cancellation of the deed of B. F. Farrell to Ochse, had been brought and was then pending. Cobb knew of the Ochse divorce proceeding at the time he purchased the title of B. F. Farrell and intervened in the suit of Farrell v. Ochse.

In the bringing and prosecution of the suit against Ochse for the land, there was no intent to defraud Mrs. Gabb, nor was there any fraud perpetrated in the rendition of the judgment against him in Cobb's favor.

The present suit was filed November 9, 1907, more than six years after the plaintiff obtained her divorce from...