Peters v. Clements

• Citation: 46 Tex. 114
• Parties: NAOMI PETERS AND HUSBAND v. Z. C. CLEMENTS.
• Decision Date: 01 January 1876
• Court: Supreme Court of Texas

46 Tex. 114

NAOMI PETERS AND HUSBAND

v.Z. C. CLEMENTS.

Supreme Court of Texas.

1876.

APPEAL from Cass. Tried below before the Hon. M. L. Crawford.

This was a suit by Naomi Peters, joined by her husband, to try the title to four hundred and fourteen acres of land, alleged to be the separate property of Naomi Peters.

The land in controversy was part of a one-third league patented to Richard Peters. Richard Peters, in 1859, sold the third league, less three hundred and twenty acres, to Thomas M. Peters, who on 14th August, 1860, conveyed the land sold to him to W. F. Connell. The deed to Connell was made jointly by Thomas M. and Naomi Peters, in the State of Alabama, and was acknowledged by them (not privily by the wife) before a justice of the peace in Alabama, and was recorded in Cass county on this proof. The certificate of authentication is not, and does not, purport to be under seal, and does not purport to be made by a judge of a court of record having a seal. It bears date 14th September, 1860.

This deed shows that part of the purchase-money was secured by notes described in the deed, and it was not questioned that as between Peters and Connell they were a lien on the land.

On the 14th day of November, 1863, W. F. Connell sold the four hundred and fourteen acres in controversy, by deed of that date, to G. H. Fitzgerald, “for three thousand dollars, or its equivalent, as his substitute in the Confederate army,” by deed with general warranty, which deed was duly recorded. Connell went into possession of the land in 1863, under his deed from Peters.

On 14th September, 1864, G. H. Fitzgerald and wife conveyed the same land, by deed with general warranty, to Rufus Day, which deed was duly recorded.

On 26th November, 1867, R. H. Day conveyed the same land, by deed with general warranty, to L. C. Clements, defendant in this suit, which was duly recorded.

On the 23d November, 1865, Thomas M. Peters filed in the District Court of Cass county his petition against William F. Connell, to recover the notes given by him for the land, and to foreclose the vendor's lien on the whole tract, including the four hundred and fourteen acres sold by Connell to Fitzgerald November, 14, 1863. Neither Fitzgerald nor his vendees were made parties to this proceeding. The court rendered judgment in favor of Peters and against Connell for the debt, and foreclosing vendor's lien. On this judgment an order of sale was issued, and the land sold by the sheriff to Naomi Peters, wife of Thomas M. Peters, on the first Tuesday in December, 1869, for $2,200, which was paid by crediting order of sale with said sum, and deed was made to her for the land by the sheriff. This purchase was made by J. J. Peters, agent of Thomas M. Peters, and the credit and deed made by his direction.J. J. Peters, for appellants, cited Briscoe v. Bronaugh, 1 Tex., 333; 1 Story's Eq., 385, 400, 405, 406; Story's Eq. Pl., 156; Shearon v. Henderson, 38 Tex., 250;Baker v. Ramey, 27 Tex., 59;Watkins v. Edwards, 23 Tex., 443;Beaty v. Whitaker, 23 Tex., 528; Rorer on Jud. Sales, 215, 443; Wendell v. Van Rensselaer, 1 Johns. Ch., 344; Sudg. on Vend., 1022, and note; 31 Tex., 257;Donley v. Tindall, 32 Tex., 55;Morgan v. Taylor, 32 Tex., 366;Kennett v. Chambers, 14 How., 38; Napier v. Jones, 47 Ala., 90; 23 Ala., 255; 4 Kent, 10, 151; Johnson v. Thweat, 18 Ala., 471; 1 Yerg., 366; 2 Kent, 324; 10 Peters, 161, 175; 5 Coke, 113; Coke on Lyt., 309; Paschal's Dig., 52, 95; Rivers v. Foote, 11 Tex., 671.

Mason & Campbell, also for appellants.

1. The deed from R. H. Day to the appellee, of 25th November, 1867, so far as the rights of the appellants were concerned, conveyed no title; was in effect a nullity. The said purchase was made pendente lite.

During the pendency of suit, viz, on the 25th November, 1867, the appellee, with full knowledge of said lien and of the pendency of said suit, purchased the land from Day, and took Day's deed therefor. That he had constructive notice of the fact is attested by the registry of the deed and the pendency of the suit pertaining to the specific property; and that he had actual notice, we think is sufficiently shown from the testimony.

The appellee being a purchaser pendente lite, was not a necessary party in the suit of Peters v. Connell, to enforce the lien. Fitzgerald and Day were not necessary parties, because the former had parted with all his interest before the institution of the suit, and the latter to appellee before its termination.

The purchase of appellee from Day was precisely as if he had purchased from Connell, the original vendee of Peters. It will not be questioned, if appellee had purchased directly from Connell pendente lite, he would have been precluded from any and all rights under his purchase. But we contend that as assignee of Day, who was assignee of Connell, he (appellee) stands in no better attitude. (Story's Eq., sec. 406.)

“He who purchases during the pendency of a suit is held bound by the decree that may be made against the person from whom he derives title, and such purchaser need not be made party to the suit.” (Ib.)

Therefore, as between the parties in interest, the conveyance from Day to appellee was a nullity, and, in the language of Judge Story, “should be treated as if it never had any existence.” (Ib.; 1 Briscoe v. Bronaugh, 1 Tex., 326.) On the same subject, see Shearon v. Henderson, 38 Tex., 250, and cases cited.

The case at bar was founded on the suit of Peters v. Connell for the recovery of the debt and “in relation to” the land in question, setting up a particular equity therein, to wit, the vendor's lien, and hence the appellee at the date of his purchase was charged with notice of said equity and of the proceedings to enforce it. In such case our court has held that such purchaser is a mala fide purchaser, and not a necessary party to the suit. (Briscoe v. Bronaugh, 1 Tex., 332, 333.)

The South Carolina court held, “when a bill is filed to obtain an estate charged with the payment of debts, and the property is purchased during the pendency of the proceedings, the purchaser takes it subject to the complainant's claim. (Edmonds v. Cranshaw, 1 McCord Ch., 264.)

We therefore insist that the charge asked for by appellants, and refused by the court, should have been given to the jury, to wit: “If Clements had notice that the land he claimed was involved in the suit of Peters v. Connell, then he was bound to take notice thereof, and would be bound by the judgment rendered in that case.” (Story's Eq., 406, as above cited.)

Appellee, therefore, being a purchaser mala fide, was a trespasser and should be ejected by this suit.

2. But suppose appellee and Fitzgerald and Day were all necessary parties in the suit of Peters v. Connell: what then? All these vendees of Connell bought the land with full knowledge of the vendor's lien. The lien was expressly retained in the deed from Peters to Connell. All that Fitzgerald, Day, and appellee acquired was the equity of redemption; and the failure to make them parties in the foreclosure suit did not extinguish the vendor's lien. If necessary parties to that suit, the only result from the judgment therein, as far as they were concerned, was that their rights were not concluded. What were those rights? Nothing but the right to redeem. (Buchanan v. Monroe, 22 Tex., 537.)

We refer to the case of Baker v. Ramey, 27 Tex., 59, as in point. There the court held, in effect, that although the vendee who purchased from the original vendee was not made a party to the suit to foreclose, yet he cannot hold the land without paying the purchase-money, and will be ejected in an action of “““trespass to try title.”

3. Appellee was estopped from setting up title in himself to the land in dispute. He stood by and permitted the land to be sold without objection. (See his own testimony, p. 68; 1 Story's Eq., sec. 385, n. 5.)

4. As to 3d assignment of error, we refer to Kennett v. Chambers, 14 How., (U. S.,) 38.

5. See 8th assignment of error. Appellee, in his answer, having pleaded his title, should have been confined to it. (Rivers v. Foote, 11 Tex., 670.) He gave no notice in his answer that he would rely on the deed from Fitzgerald to Day, and should not have been permitted to read it.

Jones & Henry, for appellees.--Plaintiff Naomi Peters sued for the land as her separate property. The proof showed it was community. (Mitchell v. Marr, 26 Tex., 330;Higgins v. Johnson, 20 Tex., 389;Rose v. Houston, 11 Tex., 324;Hatchett v. Connor, 30 Tex., 104;Holloway v. Holloway, 30 Tex., 164.)

The deed from Peters and wife to Connell, having been acknowledged before a justice of the peace, was improperly admitted to record. (Paschal's Dig., art. 1004.)

Fitzgerald was a bona fide purchaser, and his want of notice protects defendant Clements, who claims through him. (Story's Eq., secs. 409, 410.)

Plaintiff, by his agent, admitted defendant Clements's title, induced him to expend money to improve the land, which estops him. (Fonblanque's Eq., Note to p. 143; Story's Eq., pp. 412, 413, secs. 385-388.)

The illegality of the consideration of the deed from Connell to Fitzgerald will not now be inquired into, it being an executed contract. (Piegzar v. Twohig, 37 Tex., 225;Donley v. Tindall, 32 Tex., 43.)

The charge asked and refused was inapplicable. It was not the duty of the court to modify it. No such issue was made by the pleadings. (Hagerty v. Scott, 10 Tex., 525;Thompson v. Shannon, 9 Tex., 536;Wheeler v. Moody, 9 Tex., 372;Davis v. Loftin, 6 Tex., 489;Hardy v. De Leon, 5 Tex., 211;Wells v. Barnett, 7 Tex., 584.)

The plaintiff asked no charge as to the law of estoppel.

MOORE, ASSOCIATE JUSTICE.

On the 14th of August, 1860, Thomas M. Peters and Naomi Peters executed to W. F. Connell their deed for eleven hundred and fifty-six acres of land, of which the tract here in controversy is a part, retaining in the deed a lien to secure two notes given for a part of the purchase-money, and...