Hauke v. Cooper

• Decision Date: 14 May 1901
• Docket Number: 1,003.
• Citation: 108 F. 922
• Parties: HAUKE v. COOPER.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F. 922

HAUKE v. COOPER.

No. 1,003.

United States Court of Appeals, Fifth Circuit.

May 14, 1901

This action was instituted by J. D. Cooper, grantee of M. A Cooper, to recover 258 acres of land situated in Bosque county, in the state of Texas. The common source of title was one C. o. Nelson, who was a merchant doing business in Clifton, Tex., and whose property was seized and sold at the suit of various creditors. The defendant, Hauke, acquired title at a sheriff's sale, made December 30, 1895, in the suit of Baer, Seasongood & Co. against C. O. Nelson, under a writ of attachment levied on the 1st day of December, 1893. M. A. Cooper acquired his title under a sale made by the sheriff, October 6, 1896, in the case of M. A. Cooper & Co. against C. O. Nelson, under a judgment foreclosing an attachment levied January 1, 1896. Both Hauke and Cooper received sheriff's deeds to the land in controversy which were properly acknowledged and recorded. On January 20 1900, M. A. Cooper sold and transferred the lands in controversy, warranting title against all persons claiming through or under himself only, to his brother, J. D. Cooper the present plaintiff, which deed was duly filed for record and properly recorded. The real point of contest in this case is whether or not the deed to Hauke, which is prior in time and title, is void, because Hauke was only a substituted person for C. O. Nelson; the charge being that the purchase money was furnished by Nelson and the title was for him, and it being directly charged that the whole transaction by which Hauke became the purchaser was a conspiracy between Hauke and Nelson to hinder, delay and defraud Nelson's creditors. In his first amended answer Hauke makes several defenses to the suit. First, he suggests a fraud upon the jurisdiction of the court by the simulated transfer of M. A. Cooper, a citizen of the state of Texas, to his brother, J. D. Cooper, a citizen of North Carolina, in order that the present suit might be brought in the United States courts. He next demurs to the allegations in the plaintiff's petition, because not sufficiently specific, and because the allegations are contradictory and in the alternative. He then pleads the general issue, and follows that with pleas of the statutes of limitation of three and four years. On the trial before the court and jury, and to prove an estoppel against the plaintiff, the defendant introduced evidence all the papers and record in the case of the J. S. Brown Hardware Company against Olaf Westgaard, C. O. Nelson, and E. Hauke, which was a case heard and tried in the district court of Bosque county, Tex., wherein, among other matters, was in issue the genuineness and validity of the sheriff's deed to the lands in controversy made to Hauke December 30, 1895, and wherein the said Hauke, party defendant, fully set up his title, and wherein among others, the Provident National Bank of Waco intervened and attacked the title of said Hauke on the same grounds as it is attacked in the present case, and wherein, further, the court, after full hearing and a verdict by a jury, rendered a judgment declaring that the deed from the sheriff of Bosque county, Tex., to the defendant, E. Hauke, of date December 30, 1895, was not made for the purpose of hindering, delaying, or defrauding the creditors of the defendant C. O. Nelson, and that the plaintiff, the J. S. Brown Hardware Company, and the intervener, the Provident National Bank of Waco, trustee in bankruptcy of the estate of C. O. Nelson, take nothing as against the said Hauke by reason of the deed and note of Olaf Westgaard, read in evidence, and that the defendant E. Hauke is hereby declared to be the legal and equitable owner in fee simple of the land in controversy, and it is further decreed that all the deeds and notes read in evidence by the plaintiff and interveners constitute a cloud upon the title of the defendant E. Hauke, and that, so far as the said deeds and notes affect the title of the said Hauke, they are hereby canceled and held for naught, and the cloud so cast upon his title be, and the same is hereby, removed, and that the said Hauke recover from all the parties all costs, etc. The defendant, Hauke, then introduced evidence tending to show that M. A. Cooper, then claiming title to the lands in controversy, which title was only good in case the sheriff's deed to Hauke should be declared fraudulent, joined with the Provident National Bank of Waco in bringing, filing, and prosecuting the intervention in the name of said bank in the said suit of Brown Hardware Company against Olaf Westgaard, Hauke, and Nelson under a distinct agreement by which the counsel of the said M. A. Cooper should be employed and have charge of the litigation, and that the said M. A. Cooper should pay his share of counsel fees and expenses in the same, and should have a share of the proceeds, if successful, and that, in pursuance thereof, said counsel of M. A. Cooper filed the intervention in the name of said Provident National Bank and duly prosecuted the same to final judgment. On the submission of the case to the jury, the defendant requested the following: 'The defendant moves the court to charge the jury on the question of res judicata as follows: The papers in the case of the J. S. Brown...