John Parker et al. v. S. B. Campbell et al., 95 Tex. 82

WILLIAMS, Associate Justice. This was an action of trespass to try title brought by plaintiffs in error against defendants in error to recover 10 acres of land. The- District Court instructed the jury to return a verdict for defendants, and this action was affirmed by the Court of Civil Appeals. The decision depends upon the effect of the judgment and proceedings in a former suit, plaintiffs having produced no evidence of title except such as is contained therein. In 1887, plaintiffs and their privies brought suit in trespass to try title against W. A. Mays, W. A.

McDermett, and others to recover 1000 acres of land. Mays was served February 29, 1888, and answered March 2, 1888, the contents of the answer not appearing. On December 18, 1890, Mays conveyed to Mrs. Addie K. McDermett the 10 acres of land in controversy, a part of the 1000 acres then in suit, by deed stating the grantee to be a feme sole and reciting a consideration of $2500 paid and two notes for $750 each, to secure which she executed a deed of trust which was afterwards foreclosed, Campbell becoming the purchaser. December 30, 1890, in the pending cause, on motion of A. K.

Mc-Dermett, a severance was granted to her as one of the defendants therein, on May 12, 1891, a severance was granted to Mays on his motion. January 27, 1892, Maj^s filed an amended answer asserting title to 30 acres of the 1000 acres there in controversy, not including the 10 acres involved in the present action, and disclaiming as to the remainder. September 14, 1892, judgment was rendered in the severed cause in which Mays was defendant in his favor, for the 30 acres claimed 'by him, and, upon his disclaimer, in favor of plaintiffs for the remainder of the 1000 acres.

On February 15, 1895, an order was entered reciting that plaintiffs appeared and said they would no longer prosecute said cause severed as to the defendant, Mrs. A. K. McDermett, as survivor of William Mc-Dermett, and the cause as to said defendant was dismissed. How Mrs. McDermett became a defendant in the former action and what were the rights asserted by her therein are facts not" shown by these proceedings or otherwise. The Court of Civil Appeals held that the plaintiffs did not show title, and, after a thorough consideration of the facts, we have reached the same conclusion.

The contention of plaintiffs in error is that when they showed the pendency of the former action against Mays, the conveyance by him to Mrs. McDermett, pending that cause, and the subsequent judgment against him, they proved title against Mrs. McDermett as a purchaser pendente lite; that she did not show affirmatively that her claim to the ten acres was in controversy between herself and the plaintiffs in that suit and that it was taken out of it by the severance granted, and that hence it appears that it still remained involved in the action against Mays and was adjudged therein to the plaintiffs.

If the petition, the conveyance to Mrs. McDermett and the judgment stood alone, this contention would be unanswerable. But when all of the record produced in evidence is considered together, we think the conclusion is different. The plaintiffs, relying on a judgment, were required to produce one that bound the defendants. The judgment produced is accompanied by other parts of the record of the cause in which it was rendered, and all of these are to be construed together. If the court, when so regarding them, can not determine whether the judgment bound Mrs. McDermett or not, the plaintiffs fail.

This record shows that Mrs. McDermett, in some way and on account of some claim, became a party defendant to that action. As such, she was allowed to sever, whether entitled to or not, and thus separated the controversy between her and the plaintiffs therein from that in which Mays was involved. So long as the order of severance stood, she was entitled to have her case tried separately from that of Mays, and the plaintiffs could not acquiesce in this and still conclude her by prosecuting their action against Mays to judgment.

When it is suggested that she may have represented in that action some other claim than that to the 10 acres, the answer is that this is the matter which plaintiffs, having the-burden of showing title, have not proved; and this leaves the case in such a condition that their judgment does not affirmatively appear to bind her. The fact that a deed was made to her pending the suit does not prove that the matter in controversy between her and plaintiff was not the 10 acres. If her claim originated with that deed, she would not have been a necessary party to that action.

But pendente lite purchasers may sometimes become defendants and defend the title of their vendors; and if they are allowed to do so and their claim is, by proper orders, taken out of the main suit, they then stand as-defendants in separate causes, and their rights are to be therein determined. It is not shown that there was any other land claimed by Mrs. McDermett, either in her own right or the right of another.

She must be treated as having properly become a defendant, either because she had or represented some claim to the land existing when the action was brought, in recognition of which the deed may have been made, or because she had acquired a claim after commencement of the suit, in defense of which she ivas thought to be entitled to become a party and to sever her case from that of the other defendants. Upon either hypothesis, the severance entitled her to a separate trial.

This is the just construction of the record as it stands, and, if there were any facts which would give it a different effect, plaintiffs should have produced them in order to establish the binding force of the judgment. Affirmed.