Brennan v. Greene, 10936.

• Decision Date: 02 July 1941
• Docket Number: No. 10936.,10936.
• Citation: 154 S.W.2d 523
• Parties: BRENNAN et al. v. GREENE et al.
• Court: Texas Court of Appeals

154 S.W.2d 523

BRENNAN et al. v. GREENE et al.

No. 10936.

Court of Civil Appeals of Texas. San Antonio.

July 2, 1941.

Rehearings Denied October 1, 1941.

Appeal from District Court, Jim Wells County; L. Broeter, Judge.

Action by O. W. Greene and others against W. E. Brennan and others, to remove clouds from the title to certain realty. From an adverse judgment, defendants appeal.

Judgment affirmed.

Taliaferro & Graves, of Houston, W. H. Reid, of Dallas, and B. D. Tarlton, of Corpus Christi, for appellants.

John C. North and Neel, King & Rachal, all of Corpus Christi, and Kilgore & Rogers, of Wichita Falls, for appellees.

MURRAY, Justice.

This is an appeal from a judgment rendered in the District Court of Jim Wells County, Texas, on February 10, 1940, in a trial before the court without a jury, decreeing, among other things, that O. W. Greene, Irene Schley Greene, Winifred Westervelt Flato and husband, Edwin Flato, Nellie Westervelt Vaughan and husband David Vaughan, who are the appellees herein, have judgment against all other parties to this suit, removing any and all clouds cast by such parties from two tracts of land located in Duval County, Texas, being: First: The west three-fourths of Survey No. 118, Certificate No. 1/864, State Abstract No. 1883, original grantee, B. S. & F., containing 418 acres. Second: Survey No. 66, Certificate No. 1658, Abstract No. 1882, original grantee, B. S. & F., containing 640 acres — providing further, however, that the decree should not be construed as affecting any right, title or interest of any person, firm or corporation holding under, by or through the above named appellees. The judgment contains other provisions not necessary to mention here.

There is no attempt to establish a common source of title antecedent to the community estate of Thomas H. Brennan and wife, Eudocio Brennan.

The appellees may be classified as O. W. Greene and wife, and the heirs of E. C. Westervelt.

Three briefs have been filed by appellants. The first brief is by W. H. Reid, Esq., and is in behalf of Nellie E. Ault, appellants who may be described generally, without the necessity of naming each one, as the "Heirs of P. H. Brennan," and appellants who may likewise be referred to as the "Heirs of W. E. Brennan." The second brief is by T. W. Graves, Jr., Esq., and is in behalf of Winnifred H. Johnston and husband, C. Hume Johnston. The third brief is also by T. W. Graves, Jr., Esq., and is in behalf of appellants who may be described generally as "heirs of Katy E. Moore."

On October 6, 1913, Eudocio Brennan, individually and as the survivor of the estate of her deceased husband, Thomas Brennan, executed a deed attempting to convey the two surveys above described to her six children, who were all of the heirs of herself and her husband, Thomas H. Brennan. These six children were Fannie L. Brennan (who afterwards became Fannie L. Ihlenberg), Katy E. Moore, Nellie E. Ault, Winnie H. Mills, P. H. Brennan and W. E. Brennan.

As above stated, the appellants herein are either these six children or their heirs, with the exception of Fannie L. Ihlenberg, who has not perfected an appeal, and the judgment below has become final as to her and those claiming by, through or under her.

While the record is very voluminous and there are many and varied transactions referred to, this appeal really presents only four main questions, as follows:

First: Was a certain judgment entered in the District Court of Jim Wells County, on the 19th day of January, 1922, in cause No. 2977, styled E. B. Ault et al. v. V. Lozano et al., a final judgment?

Second: Was a certain alleged deed from J. B. Mills and wife, Winifred Mills, to E. B. Ault and Nellie E. Ault, dated the 16th day of November, 1914, forged?

Third: Was a certain alleged deed of trust lien from P. H. Brennan, Katy Moore and husband, Charles A. Moore, W. E. Brennan, Nellie E. Ault and husband, E. B. Ault, and Fannie L. Brennan to H. N. Whaley, for the use and benefit of E. L. Coleman, forged insofar as the signatures of Katy E. Moore, Charles A. Moore and W. E. Brennan are concerned?

Fourth: Was a certain alleged deed from Katy E. Moore and husband, C. A. Moore, to E. B. Ault and Nellie E. Ault, dated the 11th day of January, 1916, forged?

It is clear that if the judgment was a final judgment and the three instruments genuine, appellants have no interest in the two tracts of land involved herein and the judgment properly removed all clouds from the title of appellees to the land. The trial judge filed his findings of fact and conclusions of law, in which he found that the judgment was final and the instruments not forgeries but genuine and valid documents. We have concluded that the evidence was sufficient to support these findings by the trier of facts.

It is contended by appellants that the judgment in cause No. 2977, rendered in 1922, was not a final judgment, in that it did not dispose of all the parties and issues raised by the pleadings. There were many pleadings filed in that cause, including petitions, supplemental petitions, amended petitions, answers, supplemental answers, amended answers and cross-actions. It would unduly extend this opinion to describe each one of these pleadings and tell the effect of each. It is sufficient to say that the judgment effectively disposed of all the parties named in the amended pleadings which had not been superseded at the time of the trial, and which were the live pleadings upon which the trial was had. Attempt had been made to bring new parties into the suit, by naming them in supplemental pleadings, who were later effectively dismissed from the cause by failure to name them in amended pleadings subsequently filed. We seriously doubt if new parties can be made by naming them in supplemental pleadings. District Court Rules Nos. 4, 5, 13, 14 and 15, 142 S.W. pages XVII, XVIII. If, however, they were made parties by supplemental pleadings, they were just as effectively dismissed from the suit by omitting their names from amended pleadings subsequently filed, as if a formal order of dismissal as to them had been entered. First State Bank of Terrell v. Rice, Tex.Civ.App., 251 S.W. 284; Dial v. Martin, Tex.Civ.App., 8 S.W.2d 241; San Antonio & A. P. Ry. v. Mohl, Tex.Civ.App., 37 S.W. 22; St. Louis Southwestern Ry. v. Texas Packing Co., Tex.Civ.App., 253 S.W. 864.

Furthermore, the judgment in cause No. 2977, rendered in 1922, recites that it is a judgment by agreement of the parties. Where a judgment is entered by agreement all errors are cured which do not go to the jurisdiction of the court. Sandoval v. Rosser, Tex.Civ.App., 26 S.W. 930.

The judgment in cause No. 2977, rendered in 1922, recited that it was by agreement of the parties, and it will be presumed that all of the parties were present in open court and entered into the agreement. Sandoval v. Rosser, supra; Hutchinson v. Owen, 20 Tex. 287; Duke v. Gilbreath, Tex.Civ.App., 10 S.W.2d 412. If any party to the cause wished to contend that he did not in fact agree to the judgment, he would have to do so by a direct attack upon the judgment and cannot do so in a collateral proceeding. Laird v. Thomas, 22 Tex. 276; Duke v. Gilbreath, supra.

The judgment in cause No. 2977, entered in 1922, being a final judgment, was in no way affected by the attempt in 1932 to enter a different judgment nunc pro tunc. In fact, all parties concede that the nunc pro tunc judgment of 1932 was a nullity.

This brings us to a consideration of whether or not the alleged deed from J. B. Mills and wife, Winifred Mills, to E. B. Ault and Nellie E. Ault, dated November 16, 1914, was a forgery insofar as the signature of Winifred Mills was concerned.

Appellees filed a certified copy of the above alleged deed, together with an affidavit stating that the original deed had been lost and could not be produced. Appellants, in due time, filed an affidavit that the signature of Winifred Mills to the deed was a forgery. Mrs. Mills testified, in substance, that she did not sign or acknowledge the deed; that she did not even appear before Judge Jesse Wright, who, as a notary public, was supposed to have taken her acknowledgment to the deed. The acknowledgment was dated November 16, 1914. Mrs. Johnson, formerly Mrs. Mills, testified she gave birth to her first child on November 14, 1914; that she had a very hard time at the birth of her first child, was in labor two days, and was unable to move on November 16, 1914, and could not have sat up in bed and have signed her name on that date.

J. B. Mills, her husband at the time, testified that he did not remember signing the deed, but would not state positively that he did not both sign and acknowledge the instrument.

Judge Jesse Wright, the notary public who was supposed to have taken the acknowledgment of Mrs. Mills, was called as a witness and testified as follows:

"My name is Jesse Wright, sometimes called Judge Wright. I live in Corpus Christi, Texas, and have lived there since August, 1908. I was living there on August 16, 1914.

"I have known Winifred Johnson, formerly Winnie Mills, the lady who just testified, a good many years ago, but I probably couldn't recognize her now without somebody telling me who she was. I haven't seen her many times and was never closely acquainted with her. I was acquainted with her when she was Mrs. Mills.

"I did take the acknowledgment of J. B. Mills and wife, Winifred Mills, to some instrument. As to this certified copy of a deed from J. B. Mills and wife, Winifred Mills, to E. B. Ault and Nellie E. Ault, bearing date November 16, 1914, acknowledged by J. B. Mills and Winifred Mills before me as a Notary Public, on the 16th day of November, 1914, conveying two tracts of land in Duval County, one of said tracts being Survey No. 66, fully described in said deed; the other tract being known as Survey 118, containing 480 acres of land, well, from my own independent memory, I would feel a delicacy...