Conley v. Abrams

• Decision Date: 16 March 1928
• Docket Number: (No. 9044.)
• Citation: 7 S.W.2d 674
• Parties: CONLEY et al. v. ABRAMS et al.
• Court: Texas Court of Appeals

7 S.W.2d 674

CONLEY et al. v. ABRAMS et al.

(No. 9044.)

Court of Civil Appeals of Texas. Galveston.

March 16, 1928.

Rehearing Denied June 22, 1928.

Appeal from District Court, Brazoria County; W. S. Sproles, Special Judge.

Trespass to try title by Ben L. Conley against W. H. Abrams and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Rucks & Enlow, A. E. Masterson, and J. T. Loggins, all of Angleton, and Oliver J. Todd, of Beaumont, for appellants.

McCormick, Bromberg, Leftwich & Carrington and M. W. Townsend, all of Dallas, W. H. Wilson, of Houston, Louis J. Wilson, of Angleton, and C. R. Wharton and Robert A. John, both of Houston, for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title brought by plaintiffs in error, who are the heirs of George C. Tennille, against the Texas Company, the heirs of W. H. Abrams, the heirs of Paul McCombs, and a number of other defendants.

The defendants answered by general demurrer, general denial, plea of not guilty, and pleas of limitation.

The suit was dismissed as to a number of the original defendants, and, at the conclusion of the evidence, the trial court, upon the request of the remaining defendants, the Texas Company, the heirs of W. H. Abrams, the heirs of Paul McCombs, the Gulf Production Company, the Crown Oil & Refining Company, and W. B. Munson, instructed the jury to return a verdict in their favor.

The land in controversy is a part of the headright granted to George Tennille, a colonist in Austin's Colony.

The plaintiffs are heirs of George C. Tennille, who, by inheritance and by conveyance from the administrator of George Tennille, the original grantee, became the owner of all lands belonging to the original grantee at the time of his death.

The defendants introduced two chains of title, one emanating from Ammon Underwood, who purchased the land in controversy at execution sales against the original grantee, George Tennille, the other coming through a deed from Tom Tennille, a son of George C. Tennille.

If the sales under execution and the conveyance of the land by the sheriff of Brazoria county to Ammon Underwood are not shown to have been void, or if the will of George C. Tennille was duly probated, defendants have record title to all of the land in controversy, and the trial court properly instructed a verdict in their favor.

Appellants' brief is not prepared as required by the rules for briefing promulgated by our Supreme Court, and might be wholly disregarded by this court. A proper preliminary statement showing the nature and result of the suit is made in the first 2 pages of the brief. This is followed by a copy of the exceptions presented in the court below to the court's charge. These exceptions, 39 in number, occupy the next 10 pages of the printed brief. The next 15 pages contain copies of 12 bills of exceptions taken to the rulings of the court. Then follows 15 pages purporting to state the substance of the material evidence contained in the more than 1,200 pages of the statement of facts sent up with the record. Most of this "statement of the evidence" consists of copies of written instruments, and of arguments and discussions of controverted issues. The succeeding 7 pages contain the 38 "points" or "propositions" upon which the appeal is alleged to be based. Beginning on the fifty-ninth page, and extending to page 84, under the head of "Remarks," there is a discussion of numerous grounds on which it is claimed that the execution sales of the land under which Underwood purchased were void, and that the will of George C. Tennille was not legally probated, and a number of authorities are cited and discussed.

The "remarks" are not addressed to any definite and distinct proposition. In the general discussion, a number of the 38 "points" or "propositions" theretofore copied in the brief are referred to, but no clear statement of the record bearing upon the respective propositions is presented directly nor by inference to the general statement of the evidence contained in the brief, and the argument and authorities cited are not addressed to any designated definite proposition. Following these "remarks," the brief contains a copy of 110 assignments of error which cover the remaining 26 pages of the brief.

From this summary of the arrangement and contents of the brief, it is manifest that rules 29 and 31 have not been observed, and we are not required to consider any one of the 38 "points" or "propositions" thus hurled at us, unless some one or more of them presents fundamental error apparent on the face of the record. First Nat. Bank v. Smith (Tex. Civ. App.) 246 S. W. 1056; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; Nacklinger & Rayburn v. Prewitt (Tex. Civ. App.) 294 S. W. 977.

The record presents no fundamental error, and the case might properly be affirmed without discussing or considering any of the propositions sought to be presented. We will not, however, so dispose of the appeal.

In the closing portions of the "remarks" contained in the brief, a summary of the grounds upon which the execution sale is claimed void is thus stated:

"It therefore appears that the sheriff sale was void:

"(a) Because the judgment upon which the sale was made was for $204.90, and the alcalde had no jurisdiction above $100.

"(b) Because, under the uncontroverted evidence, the presumed judgment was rendered without jurisdiction over the defendant, and was void for want of parties.

"(c) Because the judgment was rendered after the judicial functions of the alcalde had been taken away.

"(d) Because the presumed judgment was of a foreign jurisdiction without any revival in the courts of the Republic.

"(e) Because execution issued in defiance of a judicial determination against the right to execution.

"(f) Because the execution was void for want of designation of the parties.

"(g) Because the void sale in 1839 added nothing to the void judgment in authorizing execution. In fact, all the original nullity remained, and the 1839 sale and bond were further void, because the sale was made after return day, and not on a day permitted or required by law.

"(h) Because no land was levied on or sold, because none was described in the execution or deed.

"(i) Because same constituted an attempted sale of a homestead, and was contrary to the statute, and therefore void."

The record discloses that on March 24, 1834, a judgment in favor of Zeno Phillips against George Tennille was rendered by Edwin Waller, alcalde for the county of Brazoria, for the sum of $204, with interest from May 21, 1833. The evidence shows that Edwin Waller was alcalde for Brazoria county at the time this judgment was rendered, and that the records of his office have been lost or destroyed. Geore Tennille brought suit to the September term, 1837, of district court of Brazoria county to enjoin an execution issued on the judgment, on the grounds that he did not authorize the attorney who appeared for him and confessed judgment to make such confession or appearance, and that he had no notice of the suit against him. This petition for injunction also alleges that the petitioner was not indebted to Zeno Phillips in any amount, and further alleges:

"Your orator further avers that Zeno Phillips is dead, and, if the judgment was legally obtained, the execution could not issue in his name, but must be in that of his administrator, and therefore the execution is void, being in the name of said decedent. And your orator would further represent unto your honor that the purported judgment was obtained before Edwin Waller, Esq., alcalde in and for the county of Brazoria aforesaid under the Mexican government. Now, if the judgment aforesaid was well obtained under said government, still it could not be enforced against your orator according to the laws of the Republic by forthwith issuing an execution against your orator, but notice must be given your orator of said judgment to appear at a certain time and place and show cause why the judgment should not be revived against him in the district court or the county court, and, if no good cause was shown, then, and not till then, could a judgment be rendered and an execution issue against your orator for the claim aforesaid. Your orator prays that in tender consideration of facts set forth in the premises that you grant him your writ of injunction to the coroner of said county or other person commanding the sheriff of said county not to collect the amounts of said execution, and that a notice may issue from the district court of said county to the proper representatives of said Zeno Phillips when your orator discovers who they are, and that they may be made party to this proceeding, and that they appear at the next term of said district court then and there to answer the facts set forth in this petition. And your orator, as in duty bound, will ever pray," etc.

A temporary injunction was issued on this petition and citation ordered as prayed for.

At the March term, 1838, of the district court, the following answer was filed in this injunction suit:

"The Republic of Texas, County of Brazoria.

"District Court March term, 1838.

"Geo. Tennell v. Heirs of Zeno Phillips.

"Injunction.

"Defendant in this case by his attorneys moves that the injunction be dissolved for the following reasons: First, that the facts stated in plaintiff's petition are untrue; second, that, if true, they would not warrant the granting of an injunction, inasmuch as they might have been pleaded before judgment, and it appears from the record that the defendant in the original suit by his attorney confessed judgment.

"Wherefore defendant prays that the injunction in this case be dissolved, and that execution issue against the plaintiff for the amount of the original judgment, with interest and 10 per cent. damages and costs.

                      "Townsend & Pease, for Defendant."
                

At the April term, 1838, a judgment was rendered in the case...