Lyon v. McBride

• Decision Date: 31 October 1884
• Docket Number: Case No. 1748.
• Citation: 62 Tex. 309
• Court: Texas Supreme Court
• Parties: MOORING & LYON ET AL. v. C. MCBRIDE ET AL.

62 Tex. 309

MOORING & LYON ET AL.

v.C. MCBRIDE ET AL.

Case No. 1748.

Supreme Court of Texas.

Oct. 31, 1884.

APPEAL from Cass. Tried below before the Hon. B. T. Estes.

C. McBride and F. M. Henry, the appellees, brought an action of trespass to try title against B. A. Bauguss, J. E. D. Blaydes, the appellants Mooring & Lyon and J. A. Bauguss, to recover a tract of seven hundred and seventy acres of land, part of the Davenport headright in Cass county. J. E. D. Blaydes is the common source of title. Plaintiffs claimed that they were entitled to possession from October 8, 1873, but had been withheld from the land since that time. Their claim for title was as follows: August 2, 1871, McBride, as administrator de bonis non of the estate of Jas. H. Davis, recovered a judgment against B. A. Bauguss for $1,150, upon which several executions were issued, the last of which (the preceding ones being unsatisfied) was levied on the land in controversy, as the property of defendant B. A. Bauguss, by W. W. Williams, the sheriff of Cass county, who sold it on first Tuesday in October, A. D. 1873, when plaintiffs purchased it for $200, which was credited on the execution, and the sheriff made them a deed therefor dated October 8, A. D. 1873. That on or about the 20th day of December, A. D. 1871, B. A. Bauguss purchased of J. E. D. Blaydes the land, and then paid him therefor $450 in cash in part payment, leaving a balance of purchase money unpaid of about $800; that Blaydes then made and delivered to B. A. Bauguss his bond for title in writing, by which he bound himself to make to Bauguss a good and sufficient deed of conveyance for the land, upon the payment of the balance of purchase money and interest thereon. That on or about the 2d day of January, A. D. 1874, Bauguss, by the hand of Mooring & Lyon, paid to Blaydes the balance of purchase money, principal and interest, amounting to $1,000.

That all the defendants conspired and combined together to cheat, wrong, defraud, hinder and delay the plaintiff C. McBride, as such administrator, in the collection of the debt; and to defeat the title of the plaintiffs, under sheriff's sale, and pursuant to such combination and conspiracy the defendants did, on the 2d day of January, A. D. 1874, cause the defendant J. E. D. Blaydes to execute and deliver to defendants Mooring & Lyon a deed of conveyance for the land. That this deed was not a sale in good faith, and Mooring & Lyon took the land and deed in trust for the use and benefit of defendants B. A. Bauguss and J. A. Bauguss, who were then in possession of the land, with full knowledge of plaintiffs' title.

The defendants all answered by general demurrer, general denial and plea of not guilty.

Defendants Mooring & Lyon further answered that, if the defendant Blaydes ever contracted for the sale of the land described in plaintiffs' petition, the contract of sale was wholly executory and conditional, and was made to Mary F. Bauguss in consideration of her separate money and was intended to be her separate property, and was not made to defendant Bauguss, who never had or acquired any interest, either legal or equitable, in the land, and that the sheriff's sale declared on in plaintiffs' petition passed no title; and further, that if such executory contract was ever made by Blaydes to and for the separate use of Mary F. Bauguss, the same was never completed, but was expressly rescinded and revoked by the parties thereto long before defendant Blaydes sold same to defendants Mooring & Lyon. That they purchased the land in controversy in good faith for a valuable consideration paid from Blaydes, without any notice, actual or constructive, of any prior conveyance, sale or contract of sale by Blaydes to any one whomsoever, and without any notice of plaintiffs' claim.

The cause was tried before a jury at February term, 1881, and resulted in a verdict and judgment for the defendants, but a new trial was granted on motion of plaintiffs. The cause was again tried at February term, A. D. 1884, resulting in a verdict and judgment for the plaintiffs against all the defendants, for the land and $500 rent.

On the trial, appellees offered to prove by J. E. Grant the declarations of B. A. Bauguss in December, 1871, as to his claim of title, with a view to show the existence and contents of the bond for title. This was objected to as being incompetent, not binding on defendants and not an issue. The court admitted the evidence.

Geo. T. Todd and Geo. T. Vaughan, for appellants, cited: Daugherty v. Cox, 13 Tex., 209;Gamble v. Dabney, 20 Tex., 77;Hendricks v. Snediker, 30 Tex., 296;Bradshaw v. House, 43 Tex., 145;46 Tex., 303; Hobby's Tex. Land Law, sec. 621.

F. M....