#### PICKENS et al. v. BACLE et al.

No. 2066—6866.

Commission of Appeals of Texas, Section A.

May 26, 1937.

*213For former opinion, see 104 S.W. (2d) 482, affirming 78 S.W. (2d) 260.

Wynne & Wynne, of Longview, and Prentice Wilson, of Dallas, for plaintiffs in error.

B. Reagan McLemore and M. Neal Smith, both of Longview, Thomas Y. Banks, of San Antonio, ánd Banks & Nichols, of Marshall, for defendants in error.

GERMAN, Commissioner.

Plaintiffs in error in motion for rehearing contend that the judgment was not a final one, because it failed to adjudicate the interest of Pilot Oil Company. The original petition was filed March 26, 1931, and the defendants named were W. L. Pickens and E. B. Germany, who were claiming under the purported mineral deed of January 14, 1931. Lis pendens was filed October 22, 1931. On April 8, 1933, plaintiffs in the trial court (defendants in error here) filed a supplemental petition, alleging- that since the filing of the lis pen-dens defendant Germany had conveyed some interest to Pilot Oil Company. In this petition they prayed judgment of cancellation as against said Pilot Oil Company as well as the original defendants. It ap-, pears that Pilot Oil Company was represented by the attorneys who ‘represented the defendants. No formal answer was filed by that company, and no issues were raised between it and the defendants. The judgment of the trial court recites that the Pilot Oil Company appeared and announced ready for trial. It further expressly decreed that plaintiffs take nothing as to Pickens, Germany, and the Pilot Oil Company. On the cross-action of Pickens and Germany judgment was rendered in their favor against all plaintiffs. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of defendants in error as against Pickens, Germany, and the Pilot Oil Company. The Pilot 'Oil Company joined in the motion for rehearing in the Court of Civil Appeals, and also prosecuted the application for writ of error; acting in all these matters by the attorneys who represented Pickens and Germany.

We are of the opinion that the judgments of the trial court and of the Court of Civil Appeals were proper as to Pilot Oil Company, and it is bound thereby, and by the judgment of this court.

It is argued, however, that as to Pilot Oil Company the judgment should be reversed and remanded, and not reversed and rendered, in order to give that company a chance to prove that it was an innocent purchaser for value. This plea is predicated upon the proposition that the lis pendens was not sufficient to give notice to said Pilot Oil Company at the time it purchased from Germany. We find that the original lis pendens was in accordance with article 6640. It gave the number and style of the suit, the court in which the case was pending, the names of the parties, the kind of suit, and a description of the land. The suit was designated as one of trespass to try title and to remove cloud from title. There were certain' allegations concerning the instrument of January 14, 1931, in which it was referred to as a mortgage. The contention, however, is that when plaintiffs filed their first amended original petition on February 11, 1933, they changed the nature of their cause of action. There -is no sound basis for this contention. That petition was in the form of trespass to try title and to remove cloud from title. In this petition there were allegations concerning the instrument of January 14, 1931, somewhat different from the allegations in the original petition, but it was still contended that the instrument was not'a deed, and was executed only for the purposes of security. These allegations did not constitute a change in the cause of action asserted.

We are of the opinion that the lis pen-dens was amply sufficient to give the notice provided for by the statute to all purchasers since its filing.

The motion for rehearing by plaintiffs in error is overruled.

Opinion adopted by the Supreme Court.