O'BOYLE v. Bevil

• Citation: 259 F.2d 506
• Decision Date: 07 November 1958
• Docket Number: No. 17158.,17158.
• Parties: Margaret O'BOYLE et al., Appellants, v. John R. BEVIL, Jr., et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

259 F.2d 506 (1958)

Margaret O'BOYLE et al., Appellants, v. John R. BEVIL, Jr., et al., Appellees.

No. 17158.

United States Court of Appeals Fifth Circuit.

September 26, 1958.

Rehearing Denied November 7, 1958.

R. F. Roberts, Hugh G. Freeland, Beaumont, Tex., for appellants.

B. F. Whitworth, Jasper, Tex., James F. Parker, James F. Parker, Jr., Beaumont, Tex., for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This suit was filed in the district court as a proceeding in equity to remove as an alleged cloud upon plaintiffs' titles two Texas state court judgments, and to enjoin their enforcement by defendants. The state court judgments were obtained by John R. Bevil, Sr., the ancestor and predecessor in interest of the defendants in this case, against the plaintiffs in the instant case. Involved in this suit are the issues of whether plaintiffs alleged a title or interest in the land in question in the state court suits sufficient to enable them to challenge those judgments and whether the judgments can be successfully attacked in this proceeding.

The case was tried after motion to dismiss, converted into motion for summary judgment, was denied. The court entered judgment for the defendants, concluding that the plaintiffs had no right, title or interest in the lands involved in the state court judgments and further that such judgments were not fraudulently obtained; plaintiffs had not been deprived of due process of law; the judgments appearing valid on their face import absolute verity and could not be set aside; and the four year Texas statute of limitations¹ was a bar to every cause of action asserted by plaintiffs. From this judgment plaintiffs have appealed.

Before discussing the propriety of the district court's orders and judgment it will be necessary to review the allegations, facts and posture of the parties in some detail.

Prior to 1919 John R. Bevil, Sr., the ancestor of the present defendants, and W. D. Myers owned in common the lands known as the Joel E. Hawley League, situated in Hardin County, Texas. By a partition deed of September 11, 1919, in evidence in this case, Bevil and Myers divided the League with Bevil obtaining title to the north 2325.5 varas, measured out to some 2049 acres.

On September 22, 1924, John R. Bevil, Sr. executed a deed to Texas Little Farms Co., an Ohio corporation, stating a cash consideration of $10,000. The deed described the land conveyed as follows:

"Being Seven Hundred and ten (710) acres of land out of the north half of the Joel E. Hawley League hereinafter described by Lot Number according to the map of a subdivision of the said Joe E. Hawley League, of record in Vol. 22, page 92 of the Deed Records of Hardin County, Texas, to which reference is hereby made."²

Then followed a naming by number of the specific lots conveyed. The specific map referred to in the deed and recorded in the Deed Records of Hardin County, Texas, does not show a lot bearing each number contained in the deeds. The subdivision is divided into lots with number one in the northeast corner, number two adjacent to number one to the west and the numbers continuing in order to number 21 which is in the north-west corner of the plot. Number 22 is directly south of number 21 and the rest of the numbered lots continue east and west alternately through the plot. In approximately the center of the plot there is a large area of land shown on the map which is not subdivided into lots and not numbered. But the numbering sequence on the recorded map is interrupted in such a way that this plot could be divided into equal sized lots and numbered perfectly to fit in with the other numbered lots if the same pattern and sequence of numbering is followed. For example, in the fourth row of lots from the north the blank space is bounded by lot 66 on the west and 78 on the east, allowing the 11 missing numbers to be placed in the unnumbered area with each lot of a size equal to the remaining lots. This method of supplying the missing numbers can be accomplished in each row of the plot, with the result that the total area would then consist of numbered lots in the proper sequence. A picture of this recorded plat is annexed in order to make clearer our description of it.

During 1924-1925 John R. Bevil, Sr. executed releases to Texas Little Farms Co. for recited considerations totaling $18,000. Thus, by the deeds and releases in evidence Bevil purportedly conveyed for $28,000 practically the entire 2325.5 north varas of the Hawley League which he had acquired, to Texas Little Farms Co.

Plaintiffs allegedly derive their title from deeds to them individually from Texas Little Farms Co. An example of the total descriptive part of the grant is as follows:

"* * * the following Real Estate situated in the County of Hardin in the State of Texas and in the . . . . of . . . . and bounded and described as follows:

"Being tract Number Sixty-seven (67) of the G.M.B. Hawley Subdivision of the Joel E. Hawley League, as recorded in Vol. 22, page 92 of the Deed Records of Hardin County, Texas."

As mentioned above, the plat on the specific page of the Deed Records of Hardin County does not show lots with numbers corresponding to those in plaintiffs' deeds. For instance, as to the above described lot there is no lot "Number Sixty-seven (67)," although there is a lot 66 and an unnumbered area immediately adjacent to it.

John R. Bevil, Sr., in 1945, instituted two suits to quiet title in the District Court of Hardin County, Texas, naming as defendants most of the plaintiffs in the instant suit and praying for an adjudication of title in plaintiff. The land in issue was the tract shown on the plat as not containing numbered lots. Since the defendants were all nonresidents, process was obtained by publication under Art. 2039, Texas Rules of Civil Procedure, Rule 109 as it then read.³ None of the defendants appeared, and proceedings were held and judgments rendered against them.⁴

The transcript of the state suit No. 8399, in evidence in the case at bar, shows that the petition was filed June 27, 1945, but the affidavit for citation by publication was sworn to June 25, 1945. The transcript of suit No. 8471 reveals that the affidavit for citation by publication was sworn to one day before it was filed. The appearance day specified in the citation was January 14, 1946, yet counsel was appointed to represent the nonresident defendants on January 7, 1946, and judgment was rendered and entered against them the same day, seven days before appearance day. In neither suit did Bevil introduce into evidence the purported deeds from him to Texas Little Farms Co. or the deeds from Texas Little Farms Co. to the nonresident defendants. These were the very conveyances which created the cloud on Bevil's title and which it was the purpose of the suits to clear up.

The record in this case makes perfectly plain, therefore, that Bevil sold land in 1923 for some $28,000 by descriptions taken from a plat recorded in the land records of Hardin County; that in 1945 he sought to set aside the same conveyances as to some one-third of the total on the basis that the descriptions he had used were inadequate to identify the land; he made this move against nonresident defendants who were served by publication only and in proceedings as to which there were procedural defects leading up to the state court judgments; and in presenting his case to the court he did not either plead or introduce in evidence the very deeds which created the alleged clouds on his title which the suits were brought to remove; on such a deficient showing of the true facts the court entered these judgments; the judgments were obtained, of course, without any actual notice to the defendants.

This suit is brought to nullify the effect of these state court judgments. The judgments are attacked on the basis of the procedural defects leading up to the judgments under the Texas law authorizing service upon nonresidents by publication and on the ground of fraud. The fraud asserted is that the defendants, in presenting their case to the state court, withheld knowledge of the conveyances from Bevil to Texas Little Farms Co. and to the plaintiff here.

A suit presenting such a state of facts must appeal strongly to the sense of justice of any tribunal. Was the judgment dismissing the suit caused by error which calls for its reversal here? We conclude that it was. Reliance, in sustaining the trial court's dismissal of the suit, is first placed by the defendants on the proposition that the plaintiffs have no standing to attack the state court judgments, however vulnerable they may be, because they failed to allege and prove an interest in the land litigated over in these suits. Such was the conclusion of the trial court. We deal first with this question, for undoubtedly a party must show that he has a justiciable interest in the subject matter in order to maintain litigation thereabout. Hollar v. Jowers, Tex.Civ. App., 310 S.W.2d 721; City of Waco v. Akard, Tex.Civ.App., 252 S.W.2d 496; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; 39 Am.Jur. 860, Sect. 10.

The question then is: did the appellants allege and prove in the trial court an interest in the subject matter of the state court suits sufficient to give them the standing to bring this action to set aside the state court judgments?

Appellees contend, and the trial court agreed, that the deeds under which appellants claim title to their respective lots were void for lack of adequate description of any land described in the state court suits. We think the trial court did not and neither do we reach this issue. The appellants need not show here any more than they had a justiciable interest in the subject matter of the litigation; that is that they had a colorable claim to the land that was then before the court. We do not need to decide that appellants have good title to these...