De La Vega v. League

• Decision Date: 02 February 1893
• Citation: 21 S.W. 565
• Parties: DE LA VEGA et al. v. LEAGUE et al.
• Court: Texas Court of Appeals

21 S.W. 565

DE LA VEGA et al. v. LEAGUE et al.

Court of Civil Appeals of Texas.

February 2, 1893.

Error from district court, Galveston county; William H. Stewart, Judge.

Action by Mrs. Esther Y. League and others against Thomas de la Vega and others to recover on a note, and also to

obtain a partition of the De la Vega grant between the parties entitled thereto. From a decree in plaintiffs' favor, the heirs of Thomas de la Vega bring error. Affirmed.

E. H. Graham and W. W. Kendall, for plaintiffs in error. McLemore & Campbell and Willie & Ballinger, for defendants in error.

PLEASANTS, J.

This suit was instituted in the district court of Galveston county, 1874, by Mrs. Esther Y. League and her children, heirs of Thomas M. League, against John W. Lapsley, the heirs of T. B. Goldsby, W. Plattenberg, J. T. Frow, the heirs of J. L. Price, Simon Mussina, N. B. Yard, George Butler, and Thomas de la Vega; and was consolidated with a suit then pending in said court, and instituted therein in 1860, by John W. Lapsley, against Thomas M. League and John C. Watrous, to recover on a note of said League and said Watrous for $4,533, executed on 9th of July. A. D. 1850. The object of the consolidated suit was to recover the amount due upon the note executed by League and Watrous, and also certain moneys alleged to be due to John W. Lapsley and his attorney in fact, the said Thomas League, for services rendered and moneys expended by them on account of 11 leagues of land, situated in McClellan county, and known as the "La Vega Grant," and for a partition of the said grant between the parties entitled thereto, upon the payment by them of the moneys alleged to be due to said Lapsley and said League. It was averred that, prior to the execution of said note by League and Watrous, said League had contracted for the purchase of said grant of land, and also for a large number of land certificates, and, being unable to complete the purchase, the said Watrous induced the said Lapsley, Goldsby, Plattenberg, Frow, and Price to furnish the purchase money, and to become joint purchasers of said property with himself and the said Thomas M. League; that Lapsley and his said four associates furnished the entire purchase money, the sum being $9,064, and, by agreement between all parties in interest, the title to said grant of land, and to the said land certificates, was placed in the said Lapsley; and when the said note executed for $4,523 by League and Watrous, the same being for one half of the purchase money, should be paid by League and Watrous, and certain other moneys in said agreement mentioned and promised, Lapsley was to make a conveyance of one half of all the said property to them, and the other half to be owned in equal shares by Lapsley and the said Goldsby, Plattenberg, Frow, and Price. The petition alleged that Watrous never paid any portion of said note, but that the note was paid by said League and his representatives, and thereby they, the heirs and representatives of League, acquired a lien on said lands for the money so advanced for said Watrous. It was further alleged that Watrous conveyed his interest in trust to N. B. Yard, to secure an indebtedness to George Butler; and that said interest had been also purchased at sheriff's sale by one Moreland, through his attorney in fact, one E. J. Garley; and that one Alexander, as attorney in fact for Moreland, had conveyed said interest of said Watrous to said Simon Mussina; and that Mussina had conveyed same to La Vega; but that the authority of Alexander to make said conveyance was denied by Moreland. The petition further averred that the said Thomas J. Frow also asserted a claim, the character and nature of which was not known, to the interest of Watrous in said property. The petition neither admitted nor denied the rights or claims of La Vega, Frow, Moreland, or Butler, but prayed that all parties be required to interplead and establish their interests, all of which, it was averred, were subordinate to the rights of Lapsley. In accordance with the prayer of the petition, Lapsley, La Vega, Mussina, Yard, Butler, Moreland, Plattenberg, Frow, and the heirs of Price and of Goldsby were made defendants. Watrous having died, his heirs became parties defendant, and denied the rights of the various claimants to the interest of the deceased in said property, and asserted title thereto, and also set up homestead claim. Lapsley answered, alleging his expenses, services, and disbursements in protecting title, for which he prayed compensation and reimbursement. Goldsby's heirs, and heirs of Price and of Plattenberg, and Frow, Butler, and Yard, La Vega, and Mussina, all appeared, and answered. Mussina and La Vega answered that they claimed the interest of Watrous, through purchase from Moreland; that they purchased the same only to secure their peace under a title already existing, and superior to that of plaintiffs and their codefendants. They averred, further, that they had been ejected from their lands by the said Lapsley and his associates on January 1, 1873; and by amended answer, filed on the 7th of March, A. D. 1876, La Vega averred that the alleged purchase and agreement of July 9, 1850, by and between the said Lapsley and his said associates, Frow, Price, Plattenberg, Goldsby, and the said League and Watrous, was a fraudulent contrivance and combination, made and done to defraud defendant out of his said tract of land; and that they, and others acting in complicity with them, did wrongfully and fraudulently make use of and utter a certain false instrument in writing, purporting to be the testimonio of an act of defendant, for the purpose of designing title to said 11 leagues of land granted to the defendant by the government of Texas and Coahuila, which said instrument, purporting to be a power of attorney to Sam May Williams, executed on the 5th of May, A. D. 1832, at Leona Vicario, (now Saltillo,) and empowering said Williams to take possession of and to sell said lands, defendant charged to be a forgery. Subsequently N. A. McPhaul, as next friend of his minor children, intervened in the suit, and claimed one fourth of a league of land, part of the La Vega grant of 11 leagues, by inheritance from Peter Fleming, to whom a league of land was granted in 1835, and which was located within the boundaries of the La Vega grant; and it was further claimed for said children that they were owners of said one-fourth league by purchase through their deceased mother from La Vega. This claim was admitted by La Vega and Mussina, and pleas in reconvention were filed by La Vega and Mussina, who also claimed by purchase from La Vega a portion of the grant to La Vega. Plaintiffs excepted to these pleas of reconvention, and pleaded in abatement thereto, and pleaded also...