Butler v. Vassault

Crookett, J., delivered tbe opinion of tbe Court; Temple, J., Wallace, J., and Bhodes, C. J., concurring:

Tbe appeal in tbis case is from an order sustaining a demurrer to tbe complaint. There were two grounds of de[75]murrer assigned: first, a defect of parties plaintiff; and second, that tbe complaint does not state facts sufficient to constitute a cause of action. Tbe action is in the nature of a bill of review, and for a new trial in a former action brought by tbe defendant, Yassault, against one Austin and bis wife, to recover tbe possession of certain real estate. During tbe pendency of that action, and before tbe judgment was rendered in favor of tbe plaintiff therein, tbe present plaintiff obtained a conveyance from Mrs. Austin for three undivided fourths of tbe premises sued for. It appears that tbe land in controversy was formerly tbe property of F. B. Austin, who, in 1855, conveyed it to bis wife by an unrecorded deed of gift; and subsequently, Yassault purchased tbe same and obtained tbe Sheriff’s deed therefor, under an execution sale against tbe said 3?. B. Austin. Tbe principal question in tbe cause was whether or not Yassault was a bona fide purchaser without notice of tbe prior conveyance from Austin to bis wife; and tbe Court found that be was such bona fide purchaser without notice, and accordingly rendered a judgment in bis favor for tbe possession of tbe premises. Tbe present plaintiff alleges in bis complaint that, after be became interested in tbe property by tbe conveyance from Mrs. Austin, pending tbe former action, be frequently consulted with Austin and bis wife as to tbe defense of tbe action, and that be personally exercised tbe greatest diligence in preparing tbe defense, and in ascertaining and producing at tbe trial all tbe evidence within bis knowledge which was material to tbe defense; that long after tbe judgment bad become final be ascertained for tbe first time that, at tbe time of tbe sale at which Yassault became tbe purchaser, tbe Sheriff distinctly notified all bidders, of whom Yassault was one, that Mrs. Austin claimed to own tbe property as of her separate estate, and that tbe title which , tbe Sheriff proposed to sell was only such interest as F. B. Austin owned. He further avers, on bis information and belief, that neither Austin nor bis wife bad any knowledge during tbe pendency of the action, nor until long after a final judgment was rendered [76]