Byers v. Brannon

• Decision Date: 31 May 1892
• Citation: 19 S.W. 1091
• Parties: BYERS <I>et al.</I> v. BRANNON <I>et ux.</I>
• Court: Texas Supreme Court

19 S.W. 1091

BYERS et al. v. BRANNON et ux.

Supreme Court of Texas.

May 31, 1892.

Commissioners' decision. Section A. Cross appeals from district court, Clay county; P. M. STINE, Judge.

Action by Julia E. Brannon and her husband, T. W. Brannon, against A. W. Byers and others. From the judgment both plaintiffs and defendants appeal. Reversed on defendants' appeal.

The other facts fully appear in the following statement by MARR, J.:

This was an action brought on July 10, 1888, by Julia E. Brannon, joined by her husband, T. W. Brannon, against A. W. Byers and G. W. Byers and John H. Webb in trespass to try title to a survey of 640 acres of land situated in Clay county, and, in the alternative, to foreclose a mortgage lien upon the land. Plaintiff's claim of title and right of foreclosure appeared in the pleadings and evidence as follows: On the 1st day of October, 1877, Alfred Powell was indebted to Sanford Powell, and executed to him a note for $1,550.66, payable 12 months after date, and bearing interest at the rate of 8 per cent. per annum. In the year 1878, Sanford Powell died in Scott county, Ky., and Garrett Powell took out letters of administration in that county upon his estate. Garrett Powell, as he had a right to do, under the laws of Kentucky, without order of court, assigned the note to F. C. Beckett. Alfred Powell had given Sanford Powell a mortgage on the land in controversy to secure the payment of said note. On the 11th day of June, 1879, Beckett instituted suit in the district court of Clay county against Alfred Powell upon the note, and to foreclose the lien on the land. Alfred Powell accepted service, and agreed that judgment might be entered. The petition and the acceptance of service were filed in court after the term commenced, and on the 16th day of June, 1879, the suit resulted in a judgment in favor of Beckett against Alfred Powell for the amount of the debt and the foreclosure of the mortgage lien. In July, 1879, an order of sale was issued on said judgment, and the land in controversy was sold and bought in by J. M. Hammond for the sum of $15. After that time, Hammond sold the land to Beckett for the sum of $25. Beckett sold off the north half of the survey, and at the time of the trial it appeared that the northeast quarter of said section of land was in T. W. Gee. It further appeared that the northwest quarter was in defendants A. W. and G. W. Byers, who claimed it under a regular chain of transfer from Beckett. Beckett had made no disposition of the south half of said land prior to the 9th day of July, 1888. On that day he made a warranty deed to Julia E. Brannon, and at the same time transferred to her the note and judgment. Beckett's deposition was taken, and it appeared therefrom that Garrett Powell had transferred the note to him with the understanding that Beckett was to have one half interest in the claim. The mortgage was to be foreclosed, and Beckett was to get one half of the proceeds, and Garrett Powell, the administrator, the other half. He testified that after the mortgage was foreclosed, Garrett Powell never paid any part of the costs, and that he permitted the land to sell, and afterwards bought it in from J. M. Hammond, who purchased at sheriff's sale for the sum of $25, and from that time forward claimed the land as his own. Hammond was not a party to the original transaction between Beckett and Garrett Powell. All of the deeds which Beckett made to the land as follows: The south half to the appellee Julia E. Brannon, as her separate property, the northeast quarter to T. W. Gee and the northwest quarter to J. R. Sumner (under whom the appellants A. W. and G. W. Byers claim this part of the land,) were absolute conveyances in fee simple, with general warranties.

"Defendant's title was as follows: The title to the northwest quarter of the survey was admitted to be in Byers Bros., claiming regularly under Beckett. The northeast quarter, as above shown, appeared to be outstanding in T. W. Gee, who claimed under Beckett. Concerning the south half, the following facts appear in the pleading and evidence: Alfred Powell was indebted to John H. Webb. In January, 1878, Webb instituted suit against Alfred Powell in the county court of Clay county, Texas. He had an attachment issued and levied upon the land in controversy. The attachment was regularly returned by the sheriff of Clay county, and filed among the papers in the cause. Citation was had upon Alfred Powell by publication. In 1878, the suit of Webb against Powell resulted in a judgment by default against Alfred Powell. The attachment lien was not regularly foreclosed, but, after the judgment was rendered, execution issued upon it, and was levied upon the specific land which had been attached. This land was sold, and Webb became the purchaser, in June, 1878. Byers Bros. claim 320 acres under a deed from Webb, of date March 15, 1889. The deed of Webb was duly executed and recorded at the time of the suit of Beckett against Powell, but Webb was in no way made a party to that suit. The case was tried before the court without a jury. The court declined to in any way interfere with the title to the north half of the section of land. He also held that Mrs. Brannon could not recover in trespass to try title to the south half, but he admitted the various links in her title for the purpose of permitting her to foreclose the mortgage as to the south half of the land, and did foreclose the lien upon it for one half of the amount of the judgment in the case of Beckett against Powell." The deed from Webb to appellants A. W. and G. W. Byers, above mentioned, was a quitclaim, and conveyed Webb's interest in the south half of the 640 acres in controversy. The Byers Bros. and John H. Webb, the defendants below, appealed from the judgment of the district court, and the plaintiffs also excepted, and have filed cross assignments of error, etc.

Bryant & Dillard, for plaintiffs. W. G. Eustis, for defendants.

MARR, J. (after stating the facts.)

There are numerous assignments of error, and the case involves many complications. We shall not attempt to notice all of the assignments, as all of the proper parties are not before the court, as will subsequently appear. Some of the questions, however, we shall endeavor to determine in view of another trial.

We will first dispose of the appellees' cross appeal. It is claimed by the appellees that the court erred in not rendering judgment in their favor for the south half of the land itself, because they assert that the judgment of the county court in favor of J. H. Webb, as well as the writ of attachment against the defendant in that suit, Alfred Powell, was void, and therefore that Webb did not acquire the equity of redemption or any right or title in the land in virtue of his purchase under such proceedings.

First. It is claimed that the judgment was void because the defendant in that suit, who was a citizen of another state, was only cited by publication, and that the county court omitted to foreclose the attachment lien upon the land, or to condemn or act upon the property which had been seized under the process of the court and was therefore wholly without jurisdiction to render a personal judgment against such defendant, as it did do. If this were an open question in this state, we might find some difficulty in determining which way it ought to be decided. The attachment proceedings in favor of Webb occurred prior to the adoption of the Revised Statutes, and the case of Harris v. Daugherty, 74 Tex. 1, 11 S. W. Rep. 921, is decisive of the question, and adversely to the construction of the appellees. We hold, therefore, that the judgment was not void on account of the failure of the court to foreclose the attachment lien upon the property at the time it rendered the judgment. The direct point upon the same state of facts was raised and decided in Harris v. Daugherty, supra, and it is only necessary to refer to that decision of the supreme court for a further elucidation of the question.

In the second place, the appellees insist that the writ of attachment, and, as a consequence, the judgment and execution in favor of Webb, were all void because the writ was issued by the clerk of the county court in vacation, and it is contended that, as the law then stood, the county clerk had no authority to issue the writ without an order to the county court or the judge thereof. It is claimed that...