Wolf v. Harris

• Citation: 48 S.W. 529
• Parties: WOLF v. HARRIS.
• Decision Date: 21 December 1898
• Court: Texas Court of Appeals

48 S.W. 529

WOLF v. HARRIS.

Court of Civil Appeals of Texas.

December 21, 1898.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Suit by Charles Wolf against H. L. McCutcheon, Maggie McCutcheon, and B. F. Harris. From an order sustaining a special exception of defendant B. F. Harris, plaintiff appeals. Affirmed.

The statement of the case made by the appellant is correct, and is so accepted by the appellee. It is as follows: "Suit by appellant upon two notes, executed by H. L. McCutcheon and Maggie McCutcheon, one for $250, on February 15, 1890, and the other for $150, on April 28, 1892, payable to his order in Travis county, and secured by deeds of trust of even dates with notes, upon an undivided ½ of a 440-acre tract of land in Bosque county, Tex. Said deeds of trust were recorded in Bosque county, directly after their respective dates. Appellant made appellee a party defendant, alleging that appellee resided in Bosque county, and, after the registration of said deeds of trust, took actual possession of said land, and wholly appropriated it to his exclusive possession and use, and set up an adverse claim thereto, denying that plaintiff or the McCutcheons have any right or interest therein; that appellee's said acts create a cloud upon the title to said land, which will prevent a sale of it under said deeds of trust, as well as under decree of court foreclosing the lien thereon to pay said notes. Appellant alleges that he and the McCutcheons are the owners of said land, and are entitled to the possession thereof. He prays for judgment quieting title to said land, so that it can be sold under order of this court to pay said notes, for judgment of foreclosure, and general and equitable relief. This suit was filed February 14, 1896. On May 1, 1896, appellee filed his original answer, pleading the personal privilege of being sued in this county (Bosque) of his residence; the pending of a suit for said land by said McCutcheons against him in Bosque county; and specially excepting to the petition `because it shows it is incompetent for this court in this suit to enter upon trial as to the title of said land between plaintiff's mortgagors and this defendant, and that he would be precluded under such trial from setting up or asserting his title to said land. Wherefore he says that he is not properly joined in this suit, and that, as to him and his rights to said land, this court is without jurisdiction in the proceeding.' He also pleaded a general denial. The case was continued from term to term,—once upon formal application of appellee for over two years; and the pleas and exceptions were never presented to the court until the trial was had, on June 21, 1898. Upon trial, appellee's pleas were overruled, but his special exception was sustained."

Appellant assigns error as follows: "(1) The court erred in such ruling, because said Harris was shown by plaintiff's petition to be a proper party to this suit; and his claim to said land can be properly adjudicated in this suit, his interests as fully protected as could be done in a separate suit, and all questions of conflict of titles and claims fully settled before the foreclosure sale of the land involved is had, so that it may sell for a fair and adequate price, without sacrificing the same, as would be done by such sale being had with the title in an unsettled condition. (2) The court erred further in sustaining appellee's demurrer as stated in first assignment of error, because he had waived same by laches, same having been on file over two years before he presented it to the court, during which time he had continued the case, once upon...