Langston v. Shaw

DAWKINS, J. Plaintiff has filed in this court a motion, suggesting that since the trial in the lower court the defendants have sold all their interest in the property in contest to one George O. Baird, and he desires to have the case remanded in order that the said Baird may be substituted as a party defendant, and in order that proof may be made of the said sale; that tender has been made to the said Baird of the price so paid, with interest, and that the case should be remanded for the purpose of allowing plaintiff to file a motion in the district court for judgment as originally prayed for, upon payment to the said Baird of the sum paid by him to the defendants, as provided by law in the case of purchase by a third person of a litigious right. Defendants have answered said motion, averring that the provisions of the Code with reference to the purchase of a litigious right apply solely to sales made by a plaintiff, and not to defendants, and were intended as a protection to a defendant only. In the alternative, they pray that, if the case should be remanded, it be done for all purposes, with the right to introduce evidence on all points occurring subsequent to the judgment in the district court. Attached to the motion is a certified copy of what purports to be a sale under private act by the defendants to the said George O. Baird of the property in dispute for the price of $12,000, the act reciting that the sale is made for the purpose of effecting a partition. The suit, in its inception, was one to correct the description contained in a certain deed from defendants to plaintiff, so as to include the property in contest as a part of a larger tract, which it is alleged the parties intended to convey and acquire. Proper notice of lis pendens had been recorded prior to the alleged sale to Baird, and there had been judgment in the district court for the plaintiff as prayed for. [1] The articles of the Code, dealing with the purchase of a litigious right, do not seem to be confined to either side to a lawsuit. They read as follows: “Art. 2652. Sale of Litigious Bight. He against whom a litigious right has been transferred, may get himself released by paying to the transferee the real price of the transfer, together with the interest from its date.” “Art. 2653. Id. — What Is. A right is said to be litigious, whenever there exists a suit and contestation on the same.” [2] For the reasons assigned, it is therefore ordered, adjudged, and decreed that this case be, and the same is hereby, remanded to the lower court, with the right to institute such proceedings as are allowed by law for the determination of the issues rais [647] ed in the motion to remand, as well as such other matters as may properly arise therein. All costs to await the final decision of the case.