Moore v. Moore

• Decision Date: 06 March 1883
• Docket Number: Case No. 1271.
• Citation: 59 Tex. 54
• Parties: GEO. F. MOORE v. H. W. MOORE.
• Court: Texas Supreme Court

59 Tex. 54

GEO. F. MOORE

v.H. W. MOORE.

Case No. 1271.

Supreme Court of Texas.

Mar. 6, 1883.

APPEAL from Houston. Tried below before the Hon. Wm. D. Wood.

Suit by Jane Rice against H. W. Moore, to subject one thousand and twenty acres of land, part of the C. A. Rice league, to her claim for one-half undivided community interest, and also to subject the balance, or as much thereof as might be necessary, to sale to pay her claim for satisfaction for the use and waste of the community estate of C. A. Rice and Jane Rice during the pendency of her divorce suit, instituted in district court of Houston county in 1867, and decided in her favor in 1868; to have canceled as a cloud upon her title a deed made by C. A. Rice to the defendant H. W. Moore, in 1867, alleging fraud on the part of C. A. Rice, and in respect to their community estate, and that defendant Moore paid no valuable consideration therefor and had full notice of plaintiff's rights, and that at the time the deed was made he was under an injunction from the court prohibiting such alienation; that, in addition to her one-half interest, she also had right to the satisfaction of the sum of $1,693.33 and legal interest thereon, the amount of an approved claim in her favor against the estate of C. A. Rice for the waste and appropriation of her community estate during the pendency of the divorce suit, and that the estate of C. A. Rice was insolvent, and she was without remedy unless this land was held subject. Jane Rice died in 1873; before her death she transferred all right, title and interest in the estate of C. A. Rice to appellant. Appellant filed his plea of intervention and asked to be allowed to prosecute the suit, which was allowed, on requiring the heirs of Jane Rice to be made parties. This was done. Judgment in favor of appellant, but on appeal it was reversed because the record failed to disclose perfect service on one of the heirs. The cause was again tried in the district court at fall term, 1880, and judgment rendered against appellant.

A certified copy of the judgment was offered in connection with other evidence to show that, after the institution of the divorce suit, C. A. Rice allowed a judgment by default against him for five hundred acres, homestead tract of land of several thousand dollars' value, for the fraudulent purpose of injuring Jane Rice, by placing his property out of her reach.

The five hundred acres, after this recovery, were restored by the plaintiff in that judgment to C. A. Rice, being held for his use by his brother Joseph, and after the war, in 1865 or 1866, C. A. Rice re-entered and re-occupied the same till his death in 1867. All the personal property was removed by C. A. Rice and appropriated during the pendency of divorce suit, as witnesses testified, with the avowed purpose, repeated to different persons, that his wife should not have any of it; that he would beat her, etc.

An injunction was sued out, at the instance of Jane Rice, on a bond given, as required by the fiat of the judge, in the sum of $14,000, and the writ served on the 31st day of October, 1857; judgment rendered against her in the district court in fall of 1858, and carried to supreme court by writ of error on 25th day of July, 1860, and was not decided there till the fall of 1868, when a decision was rendered in her favor. C. A. Rice conveyed the land in controversy to H. W. Moore on the 23d day of February, 1867. The writ of injunction required that C. A. Rice should abstain from any sale, removal or other disposition of any of the property belonging to that community estate. This land was community.

H. W. Moore admitted that he had actual notice of the divorce suit before receiving his deed from C. A. Rice, though he claimed to have bargained for the land before he had any such notice.

Nunn & Williams, for appellant, cited Pasch. Dig., art. 3458; Wright v. Wright, 3 Tex., 178;Hagerty v. Harwell, 16 Tex., 663;Fisk v. Miller, 20 Tex., 579;Williams v. Pouns, 48 Tex., 145.

The evidence showed that appellant had only received his half of the remaining two thousand and fifty acres, and had not received any kind of satisfaction for the half of this one thousand and twenty acres. The defendant received his deed from C. A. Rice with actual and constructive notice of the rights of Jane Rice. Appellant also owned the claim of Jane Rice established against C. A. Rice's estate, $1,693.33, as compensation for her interest in property appropriated and wasted by C. A. Rice during pendency of divorce suit. Nichols v. Stewart, 15 Tex., 226;Dorn v. Dunham, 24 Tex., 366;McKey v. Welch, 22 Tex., 396;Tuttle v. Turner, 28 Tex., 773;Veramendi v. Hutchins, 48 Tex., 531;Lumpkin v. Murrell, 46 Tex., 53;Yancy v. Batte, 48 Tex., 55; Wade on Notice, sec. 267; 3 Washburn on Real Prop., p. 333.

H. W. Moore and J. R. Burnett, for appellee, cited Kimbro v. Hamilton, 28 Tex., 560;Gould v. West, 32 Tex., 352; 3 Washburn on Real Prop., pp. 86, 89; Bigelow on Estoppel, p. 267.

WEST, ASSOCIATE JUSTICE.

The first error assigned relates to the action of the court in excluding from the jury the certified copy of the judgment of R. P. Trabue v. C. A. Rice, rendered in the United States circuit court at Tyler on the 16th day of April, 1858.

By this judgment five hundred acres of land, alleged to be the homestead of C. A. Rice, near the town of Crockett, was recovered by R. P. Trabue, the plaintiff in the suit. It was sought to be used by appellant in support of the allegations in his pleadings as to the fraudulent disposition by C. A. Rice of the real and personal property of the community pending the divorce suit between him and his wife, Jane.

The judgment of the supreme court in the divorce suit does not find this five hundred acres to have ever been at any time a part of the community estate of C. A. and Jane Rice. Hence, if at all, it could only in the most remote manner shed any light on that issue, and therefore the court, under all the circumstances, ruled correctly in excluding it.

Even if there had been error in that respect, it would have been an immaterial error. The court below properly allowed appellant in the same connection to show the different acts of C. A. Rice and his brother Joseph and others, subsequent to the date of the judgment, in reference to this homestead tract, and the jury were properly put in possession of a number of facts that were quite sufficient to enable them to come to a correct conclusion as to the true nature and purpose of these transactions, without the aid of the judgment in question.

The second error assigned is to the effect that the court erred in not charging the jury that the injunction originally granted in the divorce suit was revived and continued in force by reason of the writ of error sued out by Jane Rice to revise the final judgment in the divorce suit, and that as a consequence any purchaser from the defendant C. A. Rice, in the interval between the date of the final judgment in his favor and the time when that judgment was reversed and rendered in the supreme court, would be charged with notice of the existence of such injunction, and would be bound by it.

The facts are that a final judgment was rendered adversely to Jane Rice, the plaintiff in the divorce suit, by the district court of Houston county at its fall term, 1858. This final judgment worked a dissolution of the injunction which had been obtained by her in October, 1857, and from this action of the court no appeal was taken. But about twenty-two months after its rendition, on the 25th of July, 1860, a writ of error was sued out by Jane Rice and a bond given by her in the sum of only ($200) two hundred dollars. This bond is to be found in the record. It is a matter of doubt whether it is intended as a cost bond or as a supersedeas bond. It is manifestly not the latter; the personal property alone in dispute exceeded $1,500, without including the slaves that were property when the suit was commenced and when the bond was given.

Without determining at present what effect (if any) the execution of a proper supersedeas bond, sued out after so long a delay, would have had upon the injunction originally granted, we are of the opinion that, in this case, at least, the filing of the petition for the writ of error, and the execution of the writ of error bond found in the record, did not have the effect of reviving the original injunction.

In Williams v. Pouns, 48 Tex., 144, it was held that the execution of an appeal bond that operated as a supersedeas would have the effect of suspending the final decree dissolving the injunction during the pendency of the appeal in the supreme court. This, we believe, is recognized in Texas as the correct doctrine. High on Injunctions, sec. 1708. Whether a writ of error sued out eighteen or twenty months after the date of the final judgment, accompanied by a valid supersedeas bond, would have the same effect as an appeal bond filed without delay, it is not necessary now to determine, because the bond filed in this case is not of that character. It is believed, however, that there may be some difference between a case where the suit is, without delay, prosecuted diligently by a prompt appeal, and one where the party chooses to delay and postpone action until almost the last moment allowed by law, and then sues out a writ of error. High on Injunctions, secs. 1702-1711.

The third assignment of error objects to the charge of the court on the ground that it restricted the inquiry of the jury, as to the injury to Jane Rice by the sale of her husband to the appellee, to the consideration alone of the land (the headright league and labor), when in fact their attention should have been directed, and their inquiry made, as to the entire community estate. The main charge of the court is not as clear and distinct on this point as it should have been, but we think that this defect was for the most part remedied by...