Ross v. Kornrumpf

Willie, Chief Justice. The amended petition did not set up a new cause of action. The cause of action declared on in the original petition was the right to the land in controversy, alleged to have been obstructed and interfered with by the defendant. In the amended petition it is the same, with the facts of the case and the relief sought more particularly specified. But the setting up of a new cause of action does not subject an amended pleading to a demurrer for that cause only. It merely charges the plaintiff with the previous costs, and lets in any defense which could have been pleaded had the suit been commenced at the date of tiling the amendment. The ruling of the court upon the other exceptions did not work any injury to the defendants, and, if wrong, it was a mere irregularity, in no way affecting ultimately the merits of the controversy, or the rights of the parties, and can afford no ground for reversing the judgment. Hardy v. De Leon, 5 Tex., 233. All inquiry into the validity of the judgment rendered in Travis county was effectually closed by the charge of the court holding it to be valid and binding, so that the defendant was not injured by any allegations as to the irregular manner in which the judgment was obtained. And for the same reason the improper admission of testimony to prove these allegations cannot operate to reverse the judgment. This does not present a case where the court has attempted, in its [394] charge, to neutralize the effect of. previously admitted illegal testimony calculated to influence the verdict. It is a case where the judge, acting within the scope of his authority, declares a fact to exist, viz., that a judgment is valid, notwithstanding illegal testimony has been admitted to disprove it, thereby leaving, so far as that subject is concerned, nothing for the jury to pass upon. There was no error in permitting plaintiffs to introduce in evidence the copy of deed from Harris to Kornrumpf. Our statute does not require that the affidavit of loss of the original shall be made before the trial begins in order to let in a certified copy. R. S., art. 2257. The certified copy must be on file for three days before the trial, and this gives the opposite party sufficient time and opportunity to attack it, if he chooses so to do. The appellants’ assignments of error do not seem to question the right of Kornrumpf to convey property to his wife in payment of money of hers previously used by him, thereby making it her separate estate free from liability for his debts. That is not an open question in this court, having been settled in favor of the wife’s right in the case of McKamey v. Thorp, 61 Tex., 648. The objection raised to Mrs. Kornrumpf’s title is based upon the’ fact that the deed to Hugo, through whom she claims, was not recorded until after the judgment against her husband had been registered in Kinney county, where the land was situated. The title which Mrs. K. really derived through this deed and the subsequent conveyance to her by Hugo was that of a resulting trust in the land; the apparent title was vested in the community of herself and husband. As to bona fide purchasers and contract lien creditors without notice, she is held to this apparent title; as to all others, including creditors with mere statutory liens created by judgment or execution, she can claim the resulting trust arising from the manner in which the land was acquired. McKamey v. Thorp, supra; Parker v. Coop, 60 Tex., 111. At the time the deed was made to Hugo, the state, as plaintiff in the judgment against Kornrumpf, held such a statutory lien upon the land, and to this right of the state the appellant was subrogated by reason of her purchase at the execution sale. Having acquired no other right in or to the land previous to her said purchase, her title must stand or fall accordingly as she had or had not notice of Mrs. Kornrumpf’s real interest in the land when the purchase was made at the sheriff’s sale. And this is the vital question in the case. The téstimony upon this point was conflicting. A witness for plaintiffs testified that he heard the attorney for Mrs. Kornrumpf [395] give notice of her title at the sale, but did not know that any one else heard it, as there was a great deal of noise at the time. The sheriff and his deputy and another witness, all present at the sale, testified that they did not hear the notice given and thought that they would have heard it had it been given. A witness for plaintiffs testified that he told the appellant’s agent at the sale who bid in the land for her, that it belonged to Mrs. Kornrumpf. The agent testified that he did not tell him any such thing. Without commenting upon the weight of this testimony, it is sufficient to say that there was no preponderance in favor of the appellees. It is not necessary that there should be, in order to sustain a verdict, when the testimony is sufficient to justify it, and were that the only question in the case we would not disturb the finding of the jury. But it further appears from the record that the court, over the objections of appellant, permitted the appellee, Edward Kornrumpf, to testify that when the sheriff came to him with the execution, he told the sheriff that the land was the separate property of his wife. He stated that Mrs. Boss was not present at the time, and there is no proof that this conversation was ever communicated to her. Neither is it shown that Mrs. Kornrumpf was present at the conversation. This testimony was therefore illegal and should have been excluded. It could not be admitted to rebut any presumption of estoppel that might arise from the silence of Mrs. K. or her husband, when her rights were about to be invaded. She was not present, and nothing that her husband could have said or done under the circumstances could have prejudiced her right to the land. For want of the presence of Mrs. Boss or any one representing her it was worthless as evidence of notice. But upon this point it was calculated to have an injurious effect upon the minds of the jury. The question of notice vel non was a pure question of fact submitted to their decision. By admitting the evidence the court necessarily led the jury to believe that it was important on that question. They may have concluded —- and it was a proper inference — that as the court admitted the statement though Mrs. Boss was not present, and the evidence was objected to specially on that account, that it was not necessary that she should be present in order to affect her with notice of the statement; that a fact brought to the knowledge of the sheriff who made the levy was presumed to be known to subsequent purchasers at the sheriff’s sale. Had the case been tried before the judge alone, we might presume that the illegal testimony was discarded by him in making up his decision. But when submitted to a jury, it must appear that it could [396] not possibly have influenced the verdict; that had the testimony been rejected the jury could not have found differently. Such is not the case here. Each party had produced evidence sufficient to establish his side of the question at issue. In such case a feather’s weight of illegal testimony must not be thrown into the scales to turn them in favor of either of the litigants. We think that the court erred in the admission of this testimony, and that it may have operated to the prejudice of the appellant, and for this error the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered June 16, 1885.]