Davis v. Jones

• Citation: 149 S.W. 727
• Parties: DAVIS et al. v. JONES.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 06 April 1912
• Court: Texas Court of Appeals

149 S.W. 727

DAVIS et al. v. JONES.^†

Court of Civil Appeals of Texas. Amarillo.

April 6, 1912.

Rehearing Denied May 18, 1912.

Appeal from District Court, Hardeman County; S. P. Huff, Judge.

Action by Thomas Jones against Mary B. Davis and others. From a judgment for plaintiff, defendants appeal. Affirmed.

A. M. John and Decker & Clarke, all of Quanah, for appellants. Jos. H. Aynesworth, of Childress, for appellee.

GRAHAM, C. J.

This is an appeal by defendants below from a judgment rendered by the district court of Hardeman county, in favor of plaintiff below, foreclosing a lien on certain lands in Hardeman county claimed by appellants.

The record shows that appellee herein filed suit in the district court of Hardeman county on December 8, 1910, against appellants to foreclose an alleged lien on the property hereinafter described for the payment of a judgment which appellee had recovered years before against one H. C. Davis, deceased, alleging substantially the recovery by appellee of the judgment against H. C. Davis and R. E. Richmond on July 3, 1901, in the county court of Childress county, Tex., in cause No. 61 on the civil docket of said court for the sum of $464.60; allegation was made of due and legal filing, recording, and indexing of an abstract of said judgment in Hardeman county about July 3, 1901, whereby a lien was fixed on the lands in controversy; allegation was also made of the issuance of an execution on said judgment on July 22, 1901, which was duly and legally returned, thereby keeping said judgment alive under the law for 10 years from that date. Allegation was then made of the death of H. C. Davis and that all the defendants held and claimed as heirs, devisees, or distributes of H. C. Davis, who it is alleged actually owned the lands at the time of the abstracting of said judgment and at all times thereafter.

That on October 8, 1904, in cause No. 627, styled Thomas Jones v. Minnie Humphreys, on the docket of the district court of Hardeman county, judgment was rendered canceling and annulling plaintiff's alleged judgment lien; allegation being made that said last-mentioned judgment was based on false and perjured testimony of H. C. Davis, his wife, Mary B. Davis, and Minnie Humphreys, to the effect that the lands in controversy were owned exclusively by Minnie Humphreys, and H. C. Davis did not own them or any interest in them when the abstract of judgment was filed, recorded, and indexed, or at any time thereafter; allegation is then made that in truth and in fact the real equitable and beneficial ownership of the said lands had at all times been in H. C. Davis as his separate property or in H. C. Davis and his wife, Mary B. Davis, as their community property. Allegation is then made that thereafter H. C. Davis having died intestate, in cause No. 764 on the docket of the district court of Hardeman county, styled Mary B. Davis v. Willis A. Jones et al. (said Willis A. Jones having in the meantime married Minnie Humphreys), judgment was rendered parceling and dividing the lands in controversy among defendants in this suit, and that all such rights as were awarded all the parties defendant herein in said last-mentioned judgment were as heirs, legatees, and distributors under H. C. Davis, then deceased. Allegation is then made of the indebtedness of said H. C. Davis to appellee on the judgment in said cause No. 61 at the time of the death of H. C. Davis, the absence of any administration on his estate, and allegation is made that Davis died seised and possessed of the beneficial interest in the lands, and allegation is made of possession of the lands by appellants as heirs, legatees, and distributors under said H. C. Davis, deceased. A want of any legal division of said lands among defendants was then alleged, and a lien was alleged on all the lands to secure the payment of plaintiff's debt. Prayer is then made to cancel and set aside the judgment rendered in cause No. 627, and for a foreclosure of appellee's lien on all the said lands as against each and all of the appellants.

Appellants answered by a general demurrer and special exceptions, a general denial, a special denial that they or either of them held or claimed under H. C. Davis, and then alleged that they held and claimed under Minnie Humphreys, pleaded the statute of limitation of four years, and appellants Clarke and Decker pleaded that they were innocent purchasers of the interest claimed by them in said lands.

By supplemental petition filed on March 9, 1911, appellee alleged in substance, in avoidance of the statutes of limitations pleaded by appellants, that through the fraud of appellants and those through whom they claimed, the facts entitling appellee to have the judgment in cause No. 627 set aside, had been concealed from him until said facts were finally developed and disclosed in the disposition of cause No. 764 herein mentioned, and that through no fault of his he failed to make such discovery earlier. By trial amendment, appellants pleaded the judgment in cause No. 627 in estoppel and in bar of appellee's alleged right to a judgment lien on the land.

The cause was tried below before the court without the intervention of a jury, and the following judgment was rendered:

"On this the 10th day of March, 1911, came on this cause for trial, and came all the parties plaintiff and defendants and in open court announce ready for trial, and the court, having heard and determined the general demurrers of the said several defendants, finds the law against said demurrers, and the same are in all things overruled; and thereupon the cause was duly called for trial, and all matters of fact as well as of law being submitted to the court, and the court having heard the pleadings of the several parties and the evidence adduced thereunder in support thereof, considers that the plaintiff, Thos. Jones, ought to recover on his said pleas, and that he ought to have a foreclosure of his lien upon the following lands situate in Hardeman county, Tex., all of section No. 240, block H, Waco & Northwestern Railway Company survey, except the southeast one-fourth of said survey, and the south one-half of the northeast one-fourth of said survey, which said debt is here found to be in the sum of $515.

"It is therefore ordered, considered, adjudged, and decreed by the court that the plaintiff, Thos. Jones, has a lien upon all of said section No. 240, block H, Waco & Northwestern Railway Company surveys in Hardeman county, Tex., except all of the southeast one-fourth thereof, and the south one-half of the northeast one-fourth thereof; the said lien being the judgment lien and now amounting to the said sum of $515, and the same is now here in all things foreclosed against the said several defendants, Mary B. Davis, Lucile Davis, Tina Davis, Nance Davis, Minnie Davis, D. E. Decker, J. A. Clarke, B. Whittington, and husband, E. E. Whittington, M. M. Franklin, and husband, B. H. Franklin, and H. Roy Davis, and the same is declared to be a superior and prior lien to any right, title, or interest in and to said lands held by any of said defendants aforesaid, and that the said judgment herein shall draw interest at the rate of 10 per cent. per annum from this date, that he have his writ of execution and order of sale commanding the sheriff of this Hardeman county, Tex., to seize upon and sell said lands as is provided by law, and apply the same to the payment of said judgment and in satisfaction of said lien aforesaid, but that, in the event that said lands shall not bring enough to pay off and discharge said judgment lien, then and in that event no other or further execution shall issue against the said defendants; they not being personally liable.

"It is the further order, judgment, and decree of the court that the plaintiff, Thos. Jones, has a lien upon the aforesaid property by virtue of being a creditor of the estate of H. C. Davis, now deceased, in the sum of $515, the said sum being the judgment aforesaid, and as such creditor he has a lien upon all of the section No. 240, block H, Waco & Northwestern Railway Company, Hardeman county, Tex., except the southeast one-fourth and the south one-half of the northeast one-fourth, and that the defendants hereto hold as follows: D. E. Decker and J. A. Clarke each one-sixth thereof, Mary B. Davis one-third thereof, and that Lucile Davis, Tina Davis, Nance Davis, Minnie Davis, B. Whittington, M. M. Franklin, and H. Roy Davis each one twenty-first thereof, and the same is in all things hereby foreclosed against the respective interests of the said defendants herein, and the clerk of this court is directed to issue his order of sale as is in all things authorized by law, commanding the sheriff of this Hardeman county, Tex., to sell said lands and to make the said above-mentioned sum of money thereout so that each defendant shall pay only his proportionate part of the aforesaid judgment as his interest therein bears to the whole amount of the estate, together with such costs in that behalf incurred, but that, in case said sum of money shall not be made out of the said estate, then no execution shall issue for any deficiency thereon.

"It is further ordered that the plaintiff have and recover of and from the defendants his costs in this behalf expended, and that the said defendants D. E. Decker and J. A. Clarke each take nothing by their plea of innocent purchaser as against the plaintiff Thos. Jones, and that such interest be held inferior to the lien of said Thos. Jones, and it is so ordered.

"That said several defendants then and there in open court excepted to the judgment of the court in overruling the general demurrers, and to the order and judgment of the court in foreclosing the said liens and judgment, and gave notice of appeal to the Court of Civil Appeals of the Second Supreme Judicial District of Texas, sitting at Ft. Worth, Tex., and is hereby given 30 days from and after the adjournment...