
    GABB et al. v. BOSTON et al.
    (No. 2468.)
    (Supreme Court of Texas.
    March 21, 1917.)
    1. Hxjsband and Wife &wkey;>221 — Necessary Parties — Who are.
    _ A suit against a husband gives the court jurisdiction to declare fraudulent the 'deed under which he claims, and to determine that the community estate of the husband and wife had no interest in the land, even though the wife was not a party.
    _[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, 802-806, 968, 973, 976%.]
    2. Judgment <©=3693 — Conclusiveness—Persons Concluded.
    A suit was instituted against a husband to set aside on the ground of fraud a deed by virtue of which he claimed land. Before judgment was rendered, the wife secured a divorce, the decree in which recited that she abandoned all claim to the land. A lis pendens purchaser intervened in the suit against the husband, and judgment went for him. Held that, as the court had complete jurisdiction to declare that the community of the husband and wife, had no interest in the land, the wife could not thereafter assert an interest in the property on the ground that by obtaining a divorce prior to the judgment she was not bound thereby, particularly as against the lis pendens purchaser who intervened.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216.] ’
    3. Parties <&wkey;40(3) — Intervention — Right to Intervene — Lis Pendens Purchaser.
    A lis pendens purchaser is entitled to intervene in a suit by his grantor to set aside a deed claimed to have been procured by the grantee’s fraud.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. § 63.]
    4. Parties 4&wkey;3S — Intervention—Defect of.
    Where the grantor suing to set aside a deed claimed to have been secured through the grantee’s fraud, sold the land, and the lis pendens purchaser intervened, the intervention merely added a party to the action, and did not change its character.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 57, 58.]
    Error to Court, of Civil Appeals, First Supreme Judicial District.
    Action by Mrs. L. B. Gabb and another against Monroe Boston and others. A judgment for defendants was affirmed by the Court of Civil Appeals (149 S. W. 569), and plaintiffs bring error.
    Affirmed.
    J. M. Gibson, R. H. Holland, and Jno. B. Warren, all of Houston, for plaintiffs in error. E. P. & Otis K. Hamblen, E. H. Bailey, W. W. Anderson, and Hardy & Roberts, all of Houston, for defendants in error.
   PHILLIPS, C. J.

The suit was one instituted by Mrs. L. B. Gabb against a number of defendants for the recovery of a half interest in a tract of land of 94% acres which she claimed was community property of herself and her former husband, C. J. Ochse. The defendants claimed title under one J. M. Cobb, in whose favor a judgment for the land had been previously decreed against Ochse in a suit to which Mrs. Gabb was not a party.

The question in the ease is whether this judgment is binding upon Mrs. Gabb.

Briefly recited, the facts are these: The land was originally owned by Thomas R. Farrell. In 1884, he made a deed conveying it to his minor son, B. F. Farrell, which, as he claimed, was not to take effect until his death. In some way, however, the deed was filed for record the day following its execution. Such title as the community estate of Ochse and Mrs. Gabb, then his wife, acquired to the land was in virtue of a deed from B. F. Farrell, conveying it to Ochse, dated September 18, 1900.

Mrs. Gabb filed a suit for divorce against Ochse, on December 24, 1900, alleging the land to be their community property and praying for its partition. She subsequently abandoned all claim to it. This was recited in the divorce decree, which was rendered in her favor on March 15, 1901.

Shortly after the institution of this divorce suit, that is on January 29, 1901, Thomas R. Farrell and B. F. Farrell filed suit for the land against Ochse, alleging that he had fraudulently obtained the deed from B. F. Farrell and praying for its cancellation; also, that the title to the land had never passed from Thomas R. Farrell and that this was known to Ochse when he obtained the deed from B. F. Farrell. Later, on June 11, ±9(31, Thomas R. Farrell, by an amended petition in the suit, made B. F. Farrell a party defendant, repeating the allegations of fraud on the part of Ochse in the procurement of the deed from B. F. Farrell, declaring that the deed from himself to B. F. Farrell was never delivered, and praying that both deeds be canceled. To this pleading, B. F. Farrell made no answer. Oclise answered generally in the suit, and by an affirmative plea alleged bis title to tbe land. Altbougb the pleadings of the parties were several times amended, the cause of action asserted against Ochse remained unchanged.

On May 28, 1902, B. P. Farrell conveyed the land to J. M. Cobb. On the following day, Cobb, by leave of the court, filed an intervention in the suit of the Farrells against Ochse, seeking the recovery of the land against all parties, setting up the conveyance of B. F. Farrell to himself. His petition likewise alleged that Ochse had fraudulently obtained the deed from B. F. Farrell, and sought its cancellation as a cloud upon his title.

Final judgment was rendered in the suit on June 3, 1902. The judgment decree recited the due appearance of all the parties; that Ochse through his attorneys announced that he did not care to defend the cause further; and that T. R. Farrell and B. F. Farrell by their attorney agreed that Cobb was entitled to the land. It canceled the deed from B. F. Farrell to Ochse and decreed the land to Cobb. Before filing his intervention, Cobb had paid Ochse $700.00 for his claim to the land and procured from him a quit claim deed.

The defendants purchased from Cobb upon the faith of the judgment rendered in the cause of Farrell v. Ochse, which decreed him the land. They had no notice that Cobb had purchased Ochse’s claim and obtained from him a quit claim deed. The abstract of title, examined by the attorneys for all the defendants except Mrs. Wilson, revealed the filing of the respective suits which have been referred to, the dates when filed, and the judgments therein respectively rendered.

At the time the divorce decree was rendered in her suit against Ochse, Mrs. Gabb knew that the suit of the Farrells against' Ochse, seeking the cancellation of the deed of B. F. Farrell to Ochse, had been brought and was then pending. Cobb knew of the Ochse divorce proceeding at the time he purchased the title of B. F. Farrell and intervened in the suit of Farrell v. Ochse.

In the bringing and prosecution of the suit against Ochse for the land, there was no intent to defraud Mrs. Gabb, nor was there any fraud perpetrated in the rendition of the judgment against him in Cobb’s favor.

The present suit was filed November 9,1907, more than six years after the plaintiff obtained her divorce from Ochse, and more than five years after the rendition of the judgment in the suit of Farrell v. Ochse.

Mrs. Gabb was not a necessary party to the suit of the Farrells against Ochse for the ■ recovery of the land. The suit against Ochse alone subjected the land to the power of the court to determine whether the community estate of himself and wife had any title to it, and, if not, to decree the title to its rightful owner. Jergens v. Schiele, 61 Tex. 255. The suit did not abate upon the dissolution of the marriage. Nor was the court’s jurisdiction in anywise impaired upon that account. The power of the court having been rightfully acquired, it endured for the final determination of the controversy. Invested with the authority, originally, to bind the interest of the wife, its judgment ,was necessarily conclusive against her in the absence of the practice of any fraud upon her rights. Jurisdiction over property lawfully obtained is not lost by a voluntary change of the owner’s status.

In Moore v. Moore, 73 Tex. 382, 11 S. W. 396, pending a suit for divorce between one Rice and his wife, Rice alone was sued in another court for a tract of land, property of the community, and judgment against him was rendered. After the rendition of the judgment, a divorce was granted the wife and partition of the community property ordered. The wife contended, as it is urged here, that the judgment against the husband for the land was not binding upon her because she was not a party to it. This court held that as there was no intent to defraud the wife in the suit against the husband, the judgment affecting the community land was binding upon her, although rendered .while the divorce action was pending. The holding was approved in Boyd v. Ghent, 93 Tex. 543, 57 S. W. 25. The only difference between that case and this one is that there ■the judgment against the husband for the land was rendered while the divorce action ivas pending, while here it was rendered after the divorce decree. But since the suit against the husband alone rightfully subjected the land to the jurisdiction of the court, this would not affect the application of the rule.

With us, the marital relation in respect to community property is frequently likened to an ordinary, partnership. Carter v. Conner, 60 Tex. 53. In a suit against a commercial partnership which pending the suit is dissolved by the death of one of the partners, the cause may properly proceed against the surviving partner and the judgment will be good against the partnership assets. In such a case the legal representatives of the deceased partner may be made parties, but the failure to include them in the suit does not invalidate the judgment as to partnership property. Blum v. Goldman, 66 Tex. 621, 1 S. W. 899.

If in such a partnership, dissolved by death pending ,the action, the surviving partner has the capacity to represent it to the extent that the judgment so rendered will bind the partnership property, upon principle it must be equally true that in an action affecting property of a community partnership, dissolved pending the suit by the act of one of the parties, a judgment rendered against the partner who had the capacity to represent the estate in the first instance, will, in the absence of any fraud upon the rights of the other partner, be conclusive as to the property involved.

After the rendition of the divorce decree the relation of Mrs. Gabb to the land then in controversy in the suit between the Farrells and her husband could not be superior to that of a lis pendens purchaser. She .was accordingly concluded by the judgment therein rendered upon the cause of action pending against her husband at the time she obtained her divorce. As the purchaser pending the action of B. P. Farrell’s claim to the land, Cobb was entitled to intervene in the suit of the Farrells against Ochse. Fleming v. Seeligson, 57 Tex. 524. The cause of action asserted by him against Ochse under his intervention was the same that the Farrells were urging when the divorce decree in Mrs. Gabb’s favor was rendered, namely, that he had obtained the deed from B. F. Farrell through fraud and thereunder acquired no title to the land. Cobb’s intervention did not change the cause of action. It simply made a new party to it. Morales v. Fisk, 66 Tex. 189, 18 S. W. 495. A conclusive test of the identity of causes of action raised by different pleading is whether a judgment under the original pleading would bar recovery under the other. With Cobb’s intervention seeking a cancellation of the same deed, upon the same ground, and under a right acquired from B. F. Farrell pending the suit, there can be no question but that a recovery by Farrell would have been a bar to Cobb’s action.

The defendants purchased in reliance upon the title decreed Cobb in the suit against Ochse without notice of anything that would adversely affect the title as thus decreed, and should be protected in it. Mrs. Gabb abandoned all claim to the land, as .was recited in the divorce decree. She knew of the pendency of the suit by the Farrells for the land. If, she had desired to re-assert a claim to the land, she should have done so in that suit following her divorce. Instead, she stood by and permitted the judgment in Cobb’s favor to be rendered. She ought not to be permitted to speculate upon the issue of that controversy and then assert her claim in a different action. She was concluded by the judgment rendered in Cobb’s favor against her former husband. The Court of Civil Appeals correctly determined the case. Its judgment is affirmed. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     