
    S. W. Punchard v. Wm. Delk et al.
    (Case No. 2734.)
    1. Misjoinder of parties — Agreement—Practice.— After partition, made of land, the various parties owning in severalty the subdivisions sued as joint owners for the recovery of the original survey. To cure the misjoinder they filed an agreement made with the defendants, to the effect “that the plaintiffs are properly joined in the original petition; that the cause may proceed, and the rights of all the parties be determined in one suit, thus preventing multiplicity of litigation.” Subsequently, purchasers pendente lite from the original defendants were, on motion, made sole defendants. Held,
    
    (1) The objection sought to be cured by the agreement did not go to the foundation of the action, but to the manner of bringing it.
    (2) It was binding on the parties to it.
    (8) It was binding on purchasers pendente lite, who cannot ignore the agreements on file of those from whom they purchased.
    Appeal from Hill. Tried below before the Hon. F. P. Wood.
    1. In 1858 various .persons, some of them claiming as the heirs of Joseph H. Punchard, and others as the vendees of other of the heirs, brought suit in Hill county for a league of land granted to Harriet and Lucretia Punchard, heirs of Joseph Punchard, deceased. The parties plaintiff sued as joint owners of the league. They were not joint owners, but in fact owned different parts and different quantities of the land when the suit was filed.
    They could not have a joint recovery under the facts; to remedy the evil, the parties plaintiffs and defendants entered into this agreement: “It is agreed in this cause that the plaintiffs are properly joined in the original petition, and that the case may proceed, and the rights of all the parties be determined in the one suit, thus preventing multiplicity of litigation. April 17, 1860.”
    The defendants answered by plea of not guilty, and specially setting up various grounds as claimed of the nullity of the grant under which plaintiffs claimed.
    At the fall term, 1865, of the court, E. B. McCowen, J. W. McCowen, T. P. McCowen and Ambrose Key moved the court “to permit them to become parties defendant, . . . saying that since the commencement of these suits they have purchased from the original defendants all the land claimed in plaintiffs’ action, and are the sole defendants in interest and in possession of the land.” This the court permitted.
    The suit progressed, the plaintiffs amending their petition, explaining how and why it was that the grant was issued to Harriet and Lucretia Punchard, as heirs of Joseph Punchard.
    The case was tried at the June term, 1874, and resulted in a verdict and judgment for the defendants. Motion for new trial was made and overruled.
    On the trial the appellants offered to read, as binding upon the parties, as part of the proceedings in the cause, and to cure any defect in plaintiffs’ pleadings, the agreement of the parties dated April 17, 1860; to which appellees objected on the ground that the parties to the suit had been changed since the agreement had been made; and that the plaintiffs by amendment had sought to change their cause of action. The court sustained the objection and held the agreement for naught. The point was saved by bill of exceptions and assigned as error. The court, at the instance of appellees, charged the jury that the plaintiffs had sued as joint owners of the league, and that the record showed that the land had been partitioned before the institution of the suit among the plaintiffs and those under whom they claim, and to find for the defendants. This was also assigned as error.
    
      E. M. Pease and Walton, Green & Hill, for the appellants.
    No briefs for appellees on file.
   Watts, J. Com. App.

In order to avoid a multiplicity of suits involving the same questions, the original parties entered into the agreement, the effect of which was to waive the misjoinder of causes of action by the plaintiffs. The parties did not undertake by this agreement to give jurisdiction where it did not belong, or in any manner affect the jurisdiction of the court over the subject matter of the litigation. But the effect of the same was a waiver of right, in the matter of pleading, which the defendants could otherwise have taken advantage of, and forced the plaintiffs to their separate actions. And we are not able to perceive any valid reason why such an agreement is not valid and binding as between the parties. The objection sought to be cured thereby did not go to the foundation of the action, but only the manner in which the suit was brought. No fraud could have been intended upon the court; but it appears to have been simply an effort upon the part of the plaintiffs and defendants to waive the form that they might the more readily reach the substance of the litigation.

We conclude that the agreement was valid and binding as between the parties thereto. It seems to have been recognized, and acted on, by the parties for several years. Purchasers pending suit are not regarded with favor by the courts. Briscoe v. Bronaugh, 1 Tex., 326; Burford v. Rosenfield, 37 Tex., 42. Such a purchaser can only acquire such rights in the subject matter of the suit as was in his vendor. And when he becomes a party defendant by reason of such purchase, he can occupy no better or more advantageous position than did the original defendant. He buys the suit as it is, and simply takes the place of his vendor, and assumes the burdens that were resting upon him. In short, he is strictly in privity with his vendor, and can no more ignore his agreements with reference to the suit, and which are on file among the papers of the cause, than could the administrator ignore the agreements of his testator, made with reference to a pending suit.

We are of the opinion that said agreement is as binding upon the subsequent as the original defendants, and that neither would be allowed to dispute its binding force; and especially is this true where it had been acted upon, and recognized by the parties, until the statute of limitation would, if the objection was successfully made, bar the rights of the plaintiffs.

The other error complained of is not such as will likely occur upon another trial, and need not be considered.

It is our conclusion that a proper disposition of this appeal is to reverse the judgment and remand the case.

Reversed and remanded.

[Opinion delivered May 31, 1881.]

Ch. J. Moore did not sit in this case.  