The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1897-12-02


full and satisfactory discussion of the
! point. 20 S. w., G74.)
| Opinion by Gaines, G. j.
New York and Texas Land Company
vs.. Mrs. M. j. Yotaw ct al; application
for writ of error in case from Dim
mitt county, Fourth district. Dis
| missed.
The land company instituted this suit
| against Mrs. Votaw to settle and de-
| termine the boundary between certain
| surveys of land. Other parties defend
ant were subsequently made, it being
alleged that these latter parties were
asserting still different boundary line
between the surveys in question.
All of the defendants except Mrs.
Votaw pleaded disclaimer as to part
of the cause of action and not guilty
and res adjudicata as to the remainder
In addition to these pleas Mrs. Votaw
pleaded in recOnvention for an order
removing cloud from her title to the
lands put in issue and for damages.
The trial resulted in Judgment
by her and in favor of the other de-
PENDANTS for the land claimed by them.
Upon appeal this judgment was affirm
ed as to all of the defendants except
Mrs. Votaw, and, as to her, ii was re-
versed and the cause remanded.
First-The plaintiffs suit was avowed-
ly one to determine the boundary be
tween it's lands and those claimed by
| the defendants. AS to the land claimed
by the defendants other than Mrs.
Votaw, the character of the suit was
not changed Therefore, we have no
.. jurisdiction to grant the writ of error
as to the judgment affirmed.
Second-Mrs. Votaw's branch of the
case is different. She pleaded in recon-
vention, asserted title to the land de-
scribed in her answer and asked for af..
this plea that branch of the case
ceased to be purely boundary
suit; but the judgment against her was
reversed and the case remanded In such
case, in the absence of some allegations in
the petition bringing it within one of
the exceptions mentioned in the statute,
we have no power to grant the writ.
Dismissed for want of jurisdiction.
Opinion by Gaines, c. J.
suit to remove cloud from title, from Tar
rant county, Second district. Refused
and rendered for plaintiff in error
In 1889 Bicocchi bought the lot in con.
troversy, the deed being made to one
MezZa, upon the agreement and under
standing that the latter should hold the
title for the former until it should be de-
sired by Bicocchi, when Mezza should
convey the land to him. MezZa was the
son-n-law of Bicocchi; and the object of
the arrangement between them, in regard
to the property in question was to de-
fraud the wife of Bcocchi, who was
about to sue for divorce Bicocchi lived
upon the property and built house upon
it while the apparent title remained in
MeZza. Defendants in error, relying
upon the apparent ownership of the prop
erty by Mezza, and on reports made by
commercial agencies, which reports were
based on said apparent ownership, eX-
tended him line of mercantile credit.
After this credit had been extended, Mez-
"a conveyed the property to Bcocchl, as
he had agreed to do. Defendants in err
ror then levied writs of attachment upon
the property, prosecuted suits to Judg-
ment against MeZZa. and bought in the
property.
Bicocchi. not being party to the above
suits, instituted this suit, after the judg-
ment had been rendered foreclosing the
lien upon the lot, for the purpose OF re-
moving the cloud cast upon his title by
said judgments. On the trial there was
Judgment for defendants; and this
judgment was affirmed on appeal to the
court of civil appeals. When Mezza, the
fraudulent grantee, in compliance with
his verbal agreement made rc-convey-
ance of the property to Bicocchi, his
fraudulent grantor, the moral obligation
to re-convey resting on the former was
sufficient consideration to sustain the
conveyance. While the legal title to
the property remained in Mezza his cred
itors might have subjected it to the pay
ment of their debts. and if they had TAX
en- proceedings by which they fixed lien
upon the property before the re-convey-
ance was made. their rights would be SUI
.peror to those of Bcocchi but having
failed to secure any right in this prop
erty itself before the re-conyeyancc was
made they can not now reach it in the
hands of Bicocchi, because his right to
have the property re-conveyed was as
binding as were the rights of the cred
itors of MeZza to have their debts paid'
and Mezza having conveyed the property
in satisfaction of promise to do So that
conveyance must be held to be good
against the debts of the defendant in
error