Blagge v. Shaw

• Decision Date: 25 February 1897
• Citation: 41 S.W. 756
• Parties: BLAGGE et al. v. SHAW et al.
• Court: Texas Court of Appeals

41 S.W. 756

BLAGGE et al. v. SHAW et al.

Court of Civil Appeals of Texas.

February 25, 1897.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action brought by Caroline Blagge and others against M. A. Shaw and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Davidson & Minor, for appellants. Scott, Levi & Smith, for appellees.

PLEASANTS, J.

This is an appeal from a judgment of the district court of Galveston county. The appellants sued to recover of the appellees the north half of lot 10 in block 623 in the city of Galveston, and, upon trial of the cause, under instructions from the court the jury returned a verdict for the defendants; and judgment was rendered in accordance therewith "that the plaintiffs take nothing by their suit, and that the defendants go hence without day, and that they recover of the plaintiffs their costs expended in and about said case." The defendants, besides other pleas in bar of plaintiffs' suit, interposed as an estoppel against all of the plaintiffs the record of a certain suit pending and determined in the year 1870 in the district court of Galveston county (said suit being numbered on the docket of said court 4,426, and styled "George J. Butler and Fannie Butler, by Her Guardian, George J. Butler, and Caroline E. Blagge and Harry W. Blagge, Ex parte"), and the sale of the property in controversy in obedience to the judgment rendered in said suit, and the subsequent conveyance thereof for a valuable consideration by the purchaser at said sale to defendants' vendor. To the introduction of this record, and also to the deeds of conveyance from the sheriff who made the sale under said judgment to the purchaser, the plaintiffs objected on the ground that the judgment was void. This objection was overruled, and plaintiffs excepted, and this exception presents for our decision the controlling question in the case. It is admitted that the file papers in said suit are lost. The record admitted in evidence, copied from the docket of the court and from Minute Book 7, is in these words:

"Proceedings Had in Cause 4,426. George J Butler, Fanny Butler & C. E. & H. W. Blagge, Ex parte. Jan'y 25th, 1870. Ordered, that property described in petition be sold, and proceeds of sale be divided among the parties hereto, as prayed for in petition.

"Tuesday, Jan'y 25th, 1870. 4,426. George J. Butler, Fannie Butler, by Her Guardian, George Butler, Caroline E. Blagge, and Harry W. Blagge. This 25th day of Jan'y, 1870, came the parties by their attorneys, and asked the order of court, by consent of all concerned; and the court having heard the petition, and it appearing to the court that the matters therein asked for are in all things right and proper, it is therefore considered by the court that the said north half of lot numbered 10 in block numbered 623 in the city of Galveston be sold as under execution from this court, as also the said 10 acre lots on Galveston Island, in section No. 1, known as `Nos. 188 and 381,' and that the sheriff of Galveston county sell the same as under execution, receive the purchase money, make title to the purchaser or purchasers, and distribute the proceeds, after paying the costs of this proceeding, as follows, to wit: 1/10 to Mrs. C. E. Blagge, and the balance divide equally between George J. Butler and Fanny Butler. The clerk will issue orders to the sheriff to sell the property aforesaid, in conformity with this decree, whenever thereunto requested by the parties in interest, or any of them."

It was admitted by plaintiffs that an order of sale was issued by the clerk of the district court of Galveston county on the 7th of February, 1870, in accordance with the foregoing judgment, and that same had been lost and could not be found; and thereupon the defendants offered in evidence a certified copy of the following entries upon the execution docket of said district court:

"4,426. George J. Butler, Fannie Butler, by Her Guardian, George Butler, Caroline E. Blagge, and Henry W. Blagge, Ex parte. Judgment Jan'y 25th, 1870. Partition clerk's fees, $10.90.

"Feb. 7th, 1870. Received this writ on the 7th day of Feb., 1870, and on the first day of March, 1870, I sold the within-described premises, within the hours prescribed by law, at public vendue, in the county of Galveston, at the door of the court house thereof, having first given public notice of the time and place of such sale by causing advertisement thereof to be posted at three public places in the county aforesaid, one of which was at the court house of said county, twenty full days previous to said sale; and M. C. McLemore bidding for the north half of lot No. 10, in block 623, $2,700, and for lot No. 188, in section 1, $400.00, and for lot 381, also in section 1, $400.00, making the sum total of $3,500.00, and he being the highest and best bidder therefor, the same was struck off to him for said amount at 11 o'clock a. m.

                    "[Signed]               Frank Dirks
                                    "Sheriff Galveston County
                

"Clerk's fees, $10.90, paid by sheriff, March 5th, 1870."

It is insisted by appellants that the judgment in cause 4,426 is void, first, because at the date of the judgment, January, 1870, there was no statute of this state authorizing the sale of real property by the district court for the purpose of partition, and that without such authority the district court was without jurisdiction to order a sale of real property. It is true that in January, 1870, there was no provision by statute for the sale of real property for partition, and it was not until 1879 that such provision was made by the statute law of this state. It cannot be denied that the district court of Galveston county had in January, 1870, under the powers conferred upon it as a court of equity both by the constitutions of 1866 and 1869, jurisdiction to try and determine suits for partition of land where the property was of the value of not less than $100; and the property in controversy, as shown by the record, in 1870, when the decree for its partition was rendered, was of greater value than $100. And while it is true that the power of a court of chancery to sell real property for the purpose of partition, except by the consent of the parties sui juris, or by express authority...