Crow v. Van Ness

• Decision Date: 25 May 1921
• Docket Number: (No. 1817.)
• Citation: 232 S.W. 539
• Parties: CROW et al. v. VAN NESS et al.
• Court: Texas Court of Appeals

232 S.W. 539

CROW et al. v. VAN NESS et al.

(No. 1817.)

Court of Civil Appeals of Texas. Amarillo.

May 25, 1921.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Suit by B. F. Crow and others against George A. Van Ness, Lela Irene Van Ness, and another, to correct an alleged mistake in a prior judgment, in which the defendant Lela Irene Van Ness prayed that the prior judgment be set aside as against her. From a judgment awarding defendant Lela Irene Van Ness an undivided half interest in the land affected by the judgment, plaintiffs appeal. Reversed and remanded.

N. P. Willis, of Canadian, E. C. Gray, of Higgins, and H. G. Hendricks, of Amarillo, for appellants.

Fisher & Palmer and Frank Willis, all of Canadian, for appellees.

BOYCE, J.

This is the second appeal of this case. See Van Ness v. Crow, 215 S. W. 572. Since the former decision, the case has been repleaded, and different questions are now presented. We will restate the case so far as necessary to present such facts as concern the questions now for decision.

The suit was originally brought by B. F. Crow against Geo. A. Van Ness, Alice D. Van Ness, and Lela Irene Van Ness, a minor, to correct an alleged mistake in a certain judgment entered in the district court of Ochiltree county, Tex., in cause No. 62, wherein the said B. F. Crow was plaintiff and the other parties named were defendants, and wherein the said plaintiff had recovered certain described lands of and from the defendants. The mistake alleged was in the description of one of the tracts of land recovered in the judgment. Lela Irene Van Ness answered by next friend, attacking the judgment rendered in said cause No. 62, as a whole in so far as it affected her and prayed that said judgment be set aside. John F. Wilkinson, who had bought the land from Crow, was made a party defendant. As the case is now pleaded, the attempt to correct the judgment in said cause No. 62 has been abandoned. John F. Wilkinson has assumed the rôle of plaintiff, and claims the land described in said former judgment, as an innocent purchaser from B. F. Crow, for value, and without notice of facts that would affect the validity of said judgment. Lela Irene Van Ness, who formerly appeared in the case, by next friend, has had her disabilities removed, and now answers in her own behalf. In her answer she alleges that she is the owner of an undivided one-half interest in said land and attacks said judgment in cause No. 62, as being rendered without jurisdiction on the part of the court, and as the result of a conspiracy between the plaintiff Crow and the defendants Geo. A. Van Ness, her stepfather, and Alice D. Van Ness, her mother, to unlawfully deprive her of her said property, and prays for judgment, setting aside said former judgment and for recovery of an undivided one-half interest in said land. The trial judge gave a peremptory instruction in favor of the said Lela Irene Van Ness, and entered judgment awarding her recovery of an undivided one-half interest in the land as prayed for.

Said land, consisting of the E. 1/2 of the W. 1/2, the S. E. 1/4 and the S. 1/2 of the N. E. 1/4 of section 576, and all of section 570, block 43, H. & T. C. Ry. Co., grantee, in Ochiltree county, Tex., was originally the community property of C. W. Van Ness and wife, Alice D. Van Ness. C. W. Van Ness died in 1900 intestate. Lela Irene Van Ness, at that time an infant, was his only child. The wife, Alice D. Van Ness, married deceased's brother, Geo. A. Van Ness, and they conveyed the land in October, 1902, to B. F. Crow. The conveyance is what is known as a special warranty deed; that is, it was in the terms of a general warranty deed, except that it warranted the title only against those claiming "by, through or under" the grantors. Thereafter B. F. Crow brought said suit No. 62, against said Geo. A. Van Ness, Alice D. Van Ness, and Lela Irene Van Ness. The petition was in form of trespass to try title to the lands described in the above-mentioned deed from Geo. A. Van Ness and wife to B. F. Crow, except that the portions of section 576, sought to be recovered were described as the "E. 1/2 of the W. 1/4, the S. E. 1/4 and S. 1/2 of the N. E. 1/4 of section No. 576." Geo. A. Van Ness and Alice D. Van Ness answered, admitting plaintiff's right to recover. A guardian ad litem was appointed, and answered for Lela Irene Van Ness, setting up the fact that she owned an undivided one-half interest in the land through inheritance from her father. The court thereafter entered judgment in regular form in favor of B. F. Crow, for recovery of the land described in said petition. It appears that the judgment was entered upon a showing to the court that Geo. A. Van Ness and Alice D. Van Ness had conveyed, or were at such time conveying, to Lela Irene Van Ness a section of land in Hemphill county, Tex., in lieu of her half interest in this land that was sold to Crow. This fact does not appear in the record in cause No. 62, but evidence thereof was introduced in the trial of this cause. B. F. Crow and wife, for a valuable consideration, conveyed the land described in their deed to John F. Wilkinson, by warranty deed, dated August 7, 1917. Wilkinson testified that he had no notice of any claim on the part of Lela Irene Van Ness to the land, or of any defect in the title; that he did learn of a discrepancy in the description of the portions of said section 576, as it appeared in the judgment, and as it appeared in his deed, and there is some question as to whether this notice of discrepancy in such description was obtained before or after he bought the land. At any rate, the notice, so he testifies, was to the effect that there was a clerical error in the description in the judgment. He testified that he did not get an abstract of title to the land or have it examined; that in closing the trade he was securing a loan on the land, and the person making the loan investigated the title and assured him that it was good; that he had confidence in the judgment of such person, and relied on such assurance, and "would not have closed the trade with Crow had I not relied upon and believed that the title was good from what Doolin assured me."

The question for decision is whether the record presents an issue as to whether John F. Wilkinson is a bona fide purchaser, and entitled to protection as such.

The judgment in cause No. 62 was not, in our opinion, void.

"If a judgment is void it must be from one or more of the following causes: (1) Want of jurisdiction over the subject-matter; (2) want of jurisdiction over the parties to the action, or some of them; (3) want of power to grant the relief contained in the judgment. In pronouncing judgments of the first and second class, the court acts without jurisdiction, while in those of the third class it acts in excess of jurisdiction." Freeman on Judgments, § 116.

The foregoing language was quoted with approval in the case of Newman v. Mackey, 37 Tex. Civ. App. 85, 83 S. W. 33, and is amply supported by other authorities. Murchison v. White, 54 Tex. 78; Black on Judgments, §§ 170, 218.

"By jurisdiction over the subject-matter is meant the nature of the cause of action or of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred." Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L. Ed. 931; Black on Judgments, § 240.

"In one of the early cases before the Supreme Court of the United States, it was said, `If the petitioner states such case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction.' But probably this was not meant as equivalent to saying that if the petition were demurrable there would be no jurisdiction. Indeed, it would be impossible on any rational theory to make the jurisdiction depend upon the validity of the case stated by the plaintiff, for the court must pass upon the sufficiency of the declaration and jurisdiction to proceed at least so far must be acquired by the mere filing of the pleading and the service of process. But it is equally certain that a court cannot, in ordinary cases, initiate a proceeding sua sponte. Its jurisdiction and power must remain at rest until called into activity by the application of a suitor. Jurisdiction of the subject-matter, therefore dynamically considered, depends upon the act of the parties in invoking the aid of the law in some regular manner for the determination of their controversy." Black on Judgments, § 241.

The Constitution and laws of this state confer on the district courts jurisdiction to try the title to lands. The pleadings presented such issue alone in said cause No. 62, and judgment was rendered in pursuance thereto. So that undoubtedly, on the face of the record, the court had jurisdiction of the subject-matter. It is unquestioned that the said court had "jurisdiction over the parties to the action." The two adult defendants appeared and answered; the minor was served with citation, and answered by guardian ad litem, and the proceeding was apparently regular. R. C. S. art. 1942. It has even been held that the failure to appoint a guardian ad litem does not render the judgment id. Grogan v. Spaulding, 155 S. W. 1014. Neither can it be claimed that the judgment rendered was "in excess of jurisdiction," because the judgment was one determining the title to land, and was in accordance with the issues made by the pleading. The judgment was, on the facts as they now...