Amelia Howard v. De Cordova

• Decision Date: 14 May 1900
• Docket Number: No. 246,246
• Citation: 20 S.Ct. 817,177 U.S. 609,44 L.Ed. 908
• Parties: AMELIA L. HOWARD et al., Appts. , v. P. DE CORDOVA et al
• Court: U.S. Supreme Court

177 U.S. 609

20 S.Ct. 817

44 L.Ed. 908

AMELIA L. HOWARD et al., Appts.,

v P. DE CORDOVA et al.

No. 246.

Argued and Submitted April 17, 1900.

Decided May 14, 1900.

By their original bill the complainants, alleging themselves to be citizens of the state of Louisiana, complained against P. De Cordova, a citizen of the state of Texas residing in Travis county, W. R. Boyd, F. E. Hill, Charles Robertson, J. M. Parker, and George W. McAdams, citizens of Texas and residents of Freestone county, and against Joseph Smolenski, as to whom it was merely alleged he 'is not an inhabitant of or found within this district.' The grounds for relief which it is necessary to notice for the purposes of the questions before us, averred in the original bill and an amendment thereto, were as follows: That the complainants were the sole legal heirs of J. W. Zacharie, their deceased father, who during his lifetime was a citizen and resident of the state of Louisiana; that their said deceased ancestor owned a tract of 11 leagues of land situated in Freestone and Anderson counties, Texas, which had been granted to Manuel Riondo, by the states of Coahuila and Texas; that on the 26th of February, 1852, their said father made a contract with Jacob and Phineas De Cordova by which the two last-named persons agreed to have the grant above mentioned properly placed upon the records, to endeavor to effect compromises with certain parties bolding claims by junior locations covering some of the land in the grant; that by the agreement in question all expenses except the taxes were to be paid by the two Cordovas, and in consideration of their services they were to receive one third of the receipts derived from the sale of all the land which might be covered by the compromises to be effected as aforesaid. It was alleged that in pursuance of the contract the two De Cordovas made various compromises with persons claiming under junior grants, and that the land thus embraced, the exact amount of which was not alleged, although it probably equalled 10,000 acres, was sold, and they received their share of the proceeds resulting from the sale. It was charged that in 1860 Jacob De Cordova acknowledged in writing that a full settlement had been made with him by Zacharie for all the lands as to which compromises had been made, and he therefore declared that all and every right which had vested in him by the contract in question had been liquidated and settled. It was then averred that on the 9th of November, 1895, Phineas De Cordova, with the object of defrauding complainants of their right and title to the land aforesaid, filed in the district court of Freestone county, Texas, a suit in partition, in which he falsely alleged himself to be the owner of an undivided one-sixth of the land situated in the Riondo grant; that this suit was brought against the unknown heirs of J. W. Zacharie, deceased, and against Joseph Smolenski, whose residence was also in said suit alleged to be unknown. At the time this suit was thus brought by De Cordova it was averred that both he and Boyd, the attorney who represented De Cordova in the suit, knew who were the heirs of J. W. Zacharie and where they resided, but that in order to defraud and to avoid notice to them of the suit, and to obtain summons by publication as required by the law of Texas, an affidavit was made by William R. Boyd, the attorney, that the heirs of Zacharie and their residences were unknown; that, predicated upon this affidavit, the order for publication was given by the court; that, instead of publishing the notice at the county seat, it was inserted in a newspaper in a remote portion of the county, and that th c omplainants had no knowledge whatever of the suit until long after its termination; that in this suit for partition an attorney was subsequently appointed to represent the unknown and absent defendants; that the law of the state of Texas required that a statement of facts should be made by the judge, but that one was prepared by Boyd, representing De Cordova, and the attorney who had been appointed to represent the absent defendants, which had for its effect to produce upon the mind of the court the impression that under the contract aforesaid, made between the Cordovas and Zacharie, the Cordovas were entitled as owners to one third of the 11 leagues of land; that being misled to that conclusion, after proceedings as required in partition suits, a decree of partition was entered. The complaint as amended made other charges of fraud and deception which it is unnecessary to recapitulate. As to the other defendants to the bill, except Smolenski, it was averred that they had acquired, with full notice of the fraud which it was charged had been operated upon the Zacharie heirs by the partition suit as aforesaid, portions of the land in question. Smolenski was made a party to the bill because of the following averments: After the adjustment alleged to have been made between Zacharie and De Cordova, it was stated that Zacharie had sold all the land in August, 1865, to...