Bilger v. Buchanan

• Decision Date: 01 November 1887
• Citation: 6 S.W. 408
• Parties: BILGER <I>et al.</I> v. BUCHANAN <I>et al.</I>
• Court: Texas Supreme Court

6 S.W. 408

BILGER et al. v. BUCHANAN et al.

Supreme Court of Texas.

November 1, 1887.

Appeal from district court, Marion county; W. P. McLEAN, Judge.

This action was brought by Jane and William Buchanan, plaintiffs, against H. H. Bilger and others, defendants, to cancel and set aside a judgment. Judgment for plaintiffs, and defendants appeal. The opinion states the facts.

J. H. Culberson and L. S. Schluter, for appellants. Geo. T. Todd and C. A. Culberson, for appellees.

WILLIE, C. J.

This cause was before this court on a former occasion, and is reported in 64 Tex. 589. It was there held that the petition set forth a good cause of action against the defendant, in so far as it sought to annul for fraud a judgment obtained against O'Hara by confession, and the cause was remanded for a trial de novo. Upon the second trial below, the cause was submitted to the court and jury upon that question alone, and a verdict and judgment were rendered for the plaintiffs, and from that judgment this appeal is prosecuted. The case comes before us now on five assignments of error; but the fifth cannot be considered, being in violation of the rules of this court.

The first assignment relates to the action of the court in allowing the plaintiffs to read in evidence the judgment of the district court of Marion county in the case of John S. O'Hara v. Wm. Bonner and E. Terry and Wife. There was no error in the admission of this judgment in evidence. The judgment which this suit seeks to cancel and set aside was alleged to have been obtained on the ground that O'Hara had no title to the 50 acres of land sold to the defendant Bilger, and had therefore broken his warranty. The judgment admitted in evidence established the title in O'Hara, and showed that there was in reality no such breach. Had it been obtained before Bilger brought his suit, or during its pendency, it would have defeated the suit entirely. No one besides the other parties to that judgment could have recovered the land from Bilger, and their right to do so was effectually destroyed by the judgment rendered against them. Rendered, as it was, after Bilger's judgment was obtained, it at least showed a failure on the part of those who Bilger claimed had the better title to establish it at law, and thus tended to disprove the facts upon which he founded his suit against O'Hara. We think the judgment was admissible for that purpose.

As to the second assignment, we think the court properly allowed the deed to be read to the jury. The only objections raised to it in the bill of exceptions are that the plaintiff had not proved or offered to prove that the deed had been delivered, and that Bilger had accepted it; he having specially denied its acceptance. Whether the deed was delivered or accepted depended on circumstances of which the jury were to be the judges. If the judge had excluded the deed, he would have taken the question from the jury, and passed upon the weight of testimony himself. The question was not whether the deed should go to the jury, but whether they should consider it in making out their verdict. When the question as to whether the jury should take into consideration an instrument offered in evidence by either party depends upon extraneous facts, of which ...