John Mealy, Sr., et al. v. Amelia Lipp et al., 91 Tex. 182

GAINES, Chief Justice. In passing upon the application in this case, we have not found it necessary either to determine the question whether the instrument executed by William C. Lipp and Amelia Lipp was a present conveyance of a third interest in the lot in controversy, or a mere contract to convey, or to decide whether, if the latter, the plaintiffs should have recovered a half interest in the property. In our view of the matter, in order to have raised these questions the record should have shown that the instrument was executed before the suit was brought.

A conveyance pendente lite does not affect the result of the suit when the grantee is not made a party either by amendment or intervention. The record does not show the time when this suit was instituted. The plaintiffs filed two amended original petitions, and the case was tried upon the second of these. Neither the original petition nor the first amended petition appears in the transcript. The second amended petition discloses when the first was filed, but does not show the date of the filing of the original.

In order to have availed themselves of the questions growing out of the alleged outstanding title, the appellants in the Court of Civil Appeals (the applicants here) should have made it appear from the transcript that the instrument in question was executed before the institution of this suit. This they have not done. We find no error in the record, and the application is therefore refused. Writ of error refused.