Ennis v. Bestwick

Walker, J. It is unnecessary to notice the pleadings in this ease. The parties deraigned title from a common source, John H. Herndon. Theproperty in controversy is known as the “ Veran- “ dah Hotel property,” in the town of Richmond. The plaintiff’s title comes through the assignee in bankruptcy of Herndon. The property was sold subject to a mortgage given to Oliver Jones, in 1860. In this mortgage there is an omission to state the number of the block (119). The property is otherwise correctly described. The defendant claims title through the sheriff of Fort Bend county, who sold the property on a judgment rendered subsequent to the execution and record of Jones’s mortgage. The judgment was not registered in the clerk’s office, and the evidence leaves it very questionable whether any execution was issued on this judgment, which was rendered on the 10th of January, 1861, until the 2d of January, 1868. The property was sold, however, on execution, and purchased by J. R. Pettus, on the first Tuesday in March, 1868. Pettus bid for the property one hundred and seven dollars and fifty cents. He after-wards quit-claimed the property to J. S. Parker for one hundred and thirty-two dollars and fifty cents, an advance of twenty-five dollars by Parker on Pettus’s bid. Parker sold the property to J. 0. Mitchell, 'pendente Inte, for two hundred dollars. The property is proven to be worth about twelve hundred dollars. Parker admits that he was present at the sale to Pettus. He says that it was reported before and at the sale, that there was a mortgage on the premises, and the evidence shows that both Parker and Pettus had examined the records, and found the mortgage to Jones recorded; ,but they depended upon the omission in the mortgage to number the block in which the lots were situated, and determined to risk a bid amounting to about one-twelfth the value of the property, upon this supposed legal defect in the mortgage. Considering that one or both of these gentlemen are lawyers, and that they purchased with full knowl [667] edge of the existence of the mortgage, and further, that the deed from Parker to Mitchell is made since the commencement of the suit, and that the consideration for that deed is only about one-sixth part of the value of the property, and that Parker only attempted to transfer to Mitchell such title as he got from Pettus, this court will not regard with much favor their speculations made in utter disregard of the equitable rights of Jones, the mortgagee from Herndon. Hnder such circumstances this mortgage must have been very defective indeed if any court would set it aside and give priority to a title obtained as was the defendant’s title. Whether we have any law or not forbidding champerty in this State, there is a law of equity, resting upon the broad foundation of the moral law, which forbids all fraud, deceit, covin, falsehood, and misrepresentation; and this court reiterates, as we feel called on to do, what was said in Clarke v. Koehler, 32 Texas, 684. The judgment of the District Court will be reversed and reformed in such manner that the appellants recover the property in controversy, with damages against Parker and Mitchell, to be computed at the rate of twenty-five dollars per month, the ascertained rental value of the property, from the date of the appellant’s purchase. Peversed and rendered.