Yoe v. Montgomery

• Decision Date: 27 May 1887
• Citation: 4 S.W. 622
• Parties: YOE and another v. MONTGOMERY.
• Court: Texas Supreme Court

4 S.W. 622

YOE and another v. MONTGOMERY.

Supreme Court of Texas.

May 27, 1887.

Appeal from district court, San Saba county.

S. W. Yoe and Sidon Harris, for appellants. McGinnis, Walters, Burleson & Towns, for appellee.

WILLIE, C. J.

The appellee, alleging himself to be the owner of certain lands in San Saba county, sought in this suit to remove from his title the cloud caused by an execution sale of said lands as the property of one E. J. Cady, and to cancel the deeds made by the sheriff to the appellants, who became purchasers of the land at said sale. The appellee claimed to have bought the lands from Cady and wife previous to said sale, and that they were at the time the separate property of Mrs. Cady. He also charged that the appellants had notice of these facts on the day of sale, and at and before they bid for the property. The reply of the appellants was to the effect that the lands were not, at the date of the judgment under which the sale was made, the property of Mrs. Cady, but subject to the debts of her husband, and that, at the time the judgment was rendered, the appellants had no notice of Mrs. Cady's claim. These are the only allegations of the pleadings necessary to be set forth. A general demurrer and several special exceptions to the petition were overruled by the court.

The first assignment of error questions the correctness of the ruling below upon the general demurrer; but neither the assignment, nor the proposition under it, points out wherein the petition showed no cause of action against the appellants. Some objections are set forth in the statement under the assignment, but they do not seem to be such as can be taken advantage of, if at all, under a general demurrer. It is not necessary, in a suit to remove clouds from title, to allege eviction, or a trespass by the defendant upon the premises. The indefinite manner in which some of the allegations are made should have been the subject of special exceptions, and every reasonable intendment must be indulged in favor of the petition upon a general demurrer.

The second assignment is: "The court erred in overruling appellants' eleven special exceptions to the appellee's petition." It has been so often held that such an assignment is in violation of the rules that it will be unnecessary for us to do more than to say that it cannot be considered; and hence none of the propositions under it claim our attention. International & G. N. R. Co. v. Leak, 64 Tex. 654; Keowne v. Love, 65 Tex. 152.

The third assignment is to the action of the court in admitting certain deeds and title papers offered by the plaintiff, but no bills of exception were saved to the ruling of the court in this respect. It is said in the statement of facts that these documents were objected to, but for what reasons does not appear. Moreover, the statement of facts was filed, by order of court, after the adjournment of the term; and, if the exceptions were properly incorporated in it, they could not be considered. Railroad Co. v. Eddins, 60 Tex. 656; Caldwell Co. v. Crocket, ante, 607, (present term.)

The assignment which challenge the correctness of the court's charge to the jury are not well taken. The charge was certainly as favorable to the appellants as could have been asked. The court reiterated the requirement that the testimony tracing the wife's property into the purchase of the lands must the clear and conclusive. This was really the turning point in the case, and the court gave the appellants all the advantages to which they were entitled under the evidence.

It is the settled law of this state that a creditor claiming a mere statutory lien by the record of a judgment, or the levy of an execution against the husband in whom the apparent title is vested, cannot be protected, by reason of this lien, against a resulting trust in favor of the wife, though he have no notice, at the...