La Vega v. Esther Y. League

• Citation: 64 Tex. 205
• Decision Date: 15 July 1885
• Docket Number: Case No. 838.
• Parties: TOMAS DE LA VEGA v. ESTHER Y. LEAGUE ET ALS.
• Court: Supreme Court of Texas

64 Tex. 205

TOMAS DE LA VEGA

v.ESTHER Y. LEAGUE ET ALS.

Case No. 838.

Supreme Court of Texas.

July 15, 1885.

APPEAL from Galveston. Tried below before the Hon. W. H. Stewart.

This suit was brought in 1874 by Esther Y. League and her children, heirs of Thomas M. League, against John W. Lapsley, the heirs of T. B. Goldsby, W. Plattenberg, T. J. Frow, the heirs of J. L. Price, Simon Mussina, N. B. Yard, Geo. Butler and Tomas de La Vega, and was consolidated with a suit against Thomas M. League and John C. Watrous, brought by John W. Lapsley to recover on a note for $4,533.

It was alleged that prior to July 9, 1850, when that note was given, League made a contract for the purchase of the La Vega eleven-league grant of land in McLennan county, and of certain land certificates, but being unable to complete the purchase, one John C. Watrous induced John W. Lapsley, T. B. Goldsby, W. Plattenberg, T. J. Frow and J. L. Price to furnish the purchase money, and to become jointly interested in the purchase with Thomas M. League and himself. That in carrying out their agreement, Lapsley, and the other parties thus induced with him, furnished the entire purchase money ($9,064), and the title was placed in Lapsley, when the note for $4,532 was executed by Watrous and Lapsley, it being for half the purchase money; that after said note and other expenses named should be paid, it was stipulated that the equal half of all the property should be conveyed by Lapsley to League and Watrous, the other half to belong jointly to the other parties. A copy of the instrument evidencing the agreement was made and exhibited. It was alleged that Watrous never paid any portion of the note, but that the same was paid by League and his representatives, and was a lien on Watrous' interest in the hands of Lapsley.

It was alleged that Watrous' interest was conveyed to N. B. Yard to secure an indebtedness to Geo. Butler of about $24,000; that one E. J. Gurley purchased, as attorney for Moreland, the lands conveyed at execution sale for $100, and then released to Moreland; that one Wm. Alexander, acting as attorney for Moreland, afterwards conveyed the interest thus acquired at sheriff's sale to Simon Mussina, who conveyed to La Vega, but that the authority of Alexanderto convey was denied by Moreland; that Thomas J. Frow also claimed some lien on the interest of Watrous, the character of which was not known. The petition neither admitted nor denied the legality of these claims of interest by La Vega, Frow, Moreland and Butler, but prayed that the parties be required to interplead and establish their interests, all of which were alleged to be in subordination to the rights of Lapsley for payments of money, etc., shown to be due from Watrous. In accordance with the prayer, John W. Lapsley, La Vega, Mussina, Yard, Butler, Moreland, Plattenberg, Frow, the heirs of Goldsby and Price and John C. Watrous, became parties defendant. Watrous' death being suggested, his widow was made defendant.

Lapsley answered, alleging his expenses and disbursements in protecting title, for which he prayed judgment. Golsby, Price, Mrs. Watrous, Butler and Yard also answered.

October 2, 1874, La Vega and Mussina also answered, claiming all of Watrous' interest under the Moreland purchase; that they purchased it only to secure their peace under a title already existing; that they owned the entire La Vega eleven-league grant, when they were illegally ousted from possession by the plaintiffs and their co-defendants on the 1st of January, 1873.

March 7, 1876, La Vega filed amended answer, in which he alleged “that said purchase and agreement (A. D. 1850) was a fraudulent contrivance and combination made and done to prejudice the rights of defendant out of said tract of land, and that they, with others acting in complicity with them, among other acts of fraud, did wrongfully and fraudulently make use of and utter a certain false instrument in writing as true, purporting to be the copy or “ testimonio% of an act of defendant, whereby, and by ‘force and effect of which,’ to deraign title to said aforesaid tract of land.”

Defendant further charged “that said instrument, styled a testimonio, so made use of and uttered and published, purports to be the testimonio or copy of a power of attorney from defendant to Samuel May Williams, dated at Leona Vicario, now Saltillo, May 5, 1832, empowering said Williams to sell and convey the aforesaid eleven leagues of land, which said instrument, styled a testimonio, defendant avers to be a forgery, and not the copy of any original that exists, or that ever did exist, in the archives of Saltillo, from which the said testimonio purports to have been taken, or of any original that exists or ever did exist elsewhere, defendant never having executed, or authorized to be executed any such original, nor in any manner authorized the said Williams to sell his said land or any portion thereof, or any other land. In support of which averment of forgery, defendant annexes to this his amended answer, and as part thereof, sworn plea of non est factum.”

Defendant further charged “that said Lapsley, League, Watrous, Frow, Price and Goldsby, and others acting in privity with and representing them, had full knowledge of said instrument being a forgery, and with such knowledge have corruptly sought to sustain the same as genuine and valid by devices of fraud and covin, and by perjury and subornation of perjury.”

Lapsley filed plea in abatement and demurrer to the reconvention of La Vega and Mussina, and plea of res judicata. Afterwards, March 11, 1876, plaintiffs filed an amendment dismissing the suit as to La Vega and Mussina, alleging that their claim was null and void as to Watrous' interest, and that plaintiffs ought not to be required to answer to their plea in reconvention, because it was, in effect, converting the proceeding into an action of trespass to try title to land situate in the county of McLennan, and not in Galveston county where the suit was pending; denying jurisdiction of the court.

Further pleading, the plaintiffs set up that Mussina had, under oath, as the attorney in fact for La Vega, filed a bill in 1868 in the United States circuit court making Lapsley, Plattenberg, Frow, Watrous, Thomas Harrison, James Harrison, and eight others defendant, in which he claimed for La Vega title to the eleven leagues of land, and charged them with conspiracy to defraud him; that the issue of forgery set up in this suit was made in that proceeding; that issue was joined and a decree rendered November 6, 1871, dismissing the bill, and adjudicating costs for Lapsley and his co-defendants. They alleged that such decree was in full force; that the title set up in such former suit was identical with that asserted by La Vega and Mussina in this, and the parties were either in person or privity the same, and the former judgment was pleaded in bar to the reconvention of La Vega and Mussina.

Plaintiffs also filed motion to dismiss the action, suit or plea of La Vega and Mussina for trespass to try title and recover damages for lands situated in McLennan county--1st, because the court had not jurisdiction of same; 2d, Lapsley and the equitable claimants under him are entitled to settlement of accounts and partition between themselves without being compelled to litigate in the district court of Galveston county the title to said land and trespass and damages respecting the same; 3d, reconvention rendered proceedings multifarious and such as cannot rightfully be joined; 4th, the pretended averments of claim under Watrous show the same to be null and void, not in good faith or consistent with their adverse paramount claim. Affidavit was made by W. P. Ballinger, counsel for plaintiffs, that La Vega and Mussina were made parties on a mistake of facts, improvidently, and that they had no scintilla of claim under Watrous.

March 14, 1876, the court sustained the plea in abatement to the reconvention by La Vega and Mussina, and dismissed the same, and they were dismissed as parties.

There was no evidence showing the inadequacy of consideration paid by Moreland at sheriff's sale. The court charged the jury, among other things, that when the inadequacy of consideration was so great as to shock the conscience, it might be regarded as evidence of fraud.

Trial and verdict, under which a lengthy and complicated decree was entered, which it is unnecessary to notice. Moreland recovered nothing.

S. Mussina, for appellants, on their right to reconvene, cited: Griffin v. Chubb, 16 Tex., 221; Baker v. Michanard, 17 La. An.; Ryan v. Jackson, 11 Tex., 399;Morris v. Reynolds, 12 Tex., 178; Evans v. Mills, 16 Tex., 190; Kerr on Fraud, 42; Paschal v. Acklin, 27 Tex., 193; Copley v. Berry, 12 Robt., 78; McDowell v. Read, 3 La. An., 393; Massie v. Watts, 6 Cranch; Agair v. Fairfax, 17 Vesey, 532; Story's Eq., § 72; B. B. S. C. Co. v. Bruly, 45 Tex., 6; Adams' Eq., 230; Aykboro, Ch. Prac., 23; Fonblanque's Equity, 38; Freeman on Co-tenancy, § 502; Wilkin v. Wilkin, 2 Johns. Ch., 117; Manners v. Manners, 1 H. N. Green's Ch., 365; Bristow v. Richardson, 3 Humph., 435.

Ballinger & Mott, for appellees, on the right of appellants to maintain their action in reconvention and have a trial on the title in this action, cited: Pas. Dig., arts. 4707, 4711; Sayles' Practice, ch. 52; Arnold v. Cauble, 49 Tex., 527; Pomeroy on Civil Remedies, §§ 373, 492; Burke v. Reilly, 16 Ind., 479; Colgrove v. Koontz, 76 N. C., 363;Portis v. Hill, 14 Tex., 69;Burleson v. Burleson, 28 Tex., 383;Walker v. Howard, 34 Tex., 478;Ellis v. Rhone, 17 Tex., 131;Grossmeyer v. Beason, 18 Tex., 765; Story's Eq. Plead., § 284; Barbour on Parties, 493; Pomeroy on Civil Remedies, § 373; Dial v. Reynolds, 96 U. S., 341;Frelinghuysen v. Coldon, 4 Paige, 206;Eagle Fire Co. v. Lent, 6 Paige, 637;Corning v. Smith, 6 N. Y., 82;Large v. Jones, 5 Leigh, 192; Stewart v. Coulter, 5 Rand., 74.

That the district court of...