Davis v. Robinson

• Decision Date: 27 March 1888
• Citation: 7 S.W. 749
• Parties: DAVIS <I>et al.</I> v. ROBINSON <I>et al.</I>
• Court: Texas Supreme Court

7 S.W. 749

DAVIS et al. v. ROBINSON et al.

Supreme Court of Texas.

March 27, 1888.

Commissioners' decision. Appeal from district court, Johnson county; J. M. HALL, Judge.

This suit was brought in Johnson county the 14th January, 1886, by J. W. and S. J. Robinson, and Lou E. Blackburn, joined by her husband, R. M. Blackburn, against L. B. Davis, J. F. Henry, and T. C. Donnell, to recover 111 acres of land three-fourths of a mile from Cleburn, for rents, and to remove clouds from title. Besides the usual allegation of trespass to try title, the petition alleges that the land is worth $3,000, and the rental value is $500 per annum; that defendants are setting up a pretended claim to the land growing out of two pretended judgments rendered by justice of peace of Johnson county on the 26th October, 1885, in favor of said T. C. Donnell, one against plaintiff S. J. Robinson, and one against plaintiff Lou E. Blackburn and her husband, and two orders of sale thereunder, and sales and deeds by the constable; that the judgments, and all proceedings thereunder, were and are illegal, fraudulent, null, and void; that defendants in said suits were, at time of rendition of said judgments, and always have been, non-residents of the state, and had no notice of the suits, no citation was served upon them, or any of them; that the justice never acquired jurisdiction over them, or the subject-matter of the suits; that the land sold for a grossly inadequate price; that said judgments and sales cast a cloud upon their title; prayed for recovery of the land, removal of clouds, etc., and that said pretended deeds, and all other claims based thereon, be canceled, etc. The petition is indorsed as in action of trespass to try title and for damages. The defendants Davis and Henry disclaimed as to an undivided one-sixth interest in and to said tract of land, which was owned by J. W. Robinson, and as to the remaining five-sixths interest in and to said land they pleaded the general issue and not guilty; and the defendant Donnell pleaded the general issue and not guilty. On the 12th day of January, 1887, the death of Lou E. Blackburn was suggested to the court; and her husband, R. M. Blackburn, being her sole heir, and, as such, the sole owner of the interest of the said Lou E. Blackburn in the property in controversy in this suit, it was ordered by the court that this suit be continued and prosecuted in the name of said plaintiffs, S. J. Robinson, J. W. Robinson, and the said R. M. Blackburn in his own right. Afterwards, on the said 12th of January, 1887, this suit was tried in our district court by and before the judge, a jury not having been demanded, which resulted in a judgment in favor of appellees, plaintiffs below, and against appellants, defendants below, for all of the land in controversy, and costs, to which judgment defendants excepted, and in open court gave notice of appeal to our supreme court. On the trial of this case in the court below it was agreed by all parties that the plaintiff J. W. Robinson owns in fee-simple, and is entitled to possession of, an undivided one-sixth interest in the land in controversy, and that neither of the defendants have ever claimed his interest or disputed his title to the same; that plaintiff S. J. Robinson, on the 31st of August and on the 7th of September, 1886, owned in fee-simple an undivided one-sixth interest in said land, and that the plaintiff Lou E. Blackburn, on said days and dates, owned in fee-simple an undivided four-sixths interest in said land; and that the said S. J. Robinson and R. M. Blackburn, as heir of Lou E. Blackburn, still owns one-sixth and four-sixths of said land, unless they have been divested of their title to said land by virtue of certain sales made under certain orders of sale issued from two judgments rendered in the justice's court of precinct No. 1, Johnson county, Tex., in the cases of T. C. Donnell v. Lou E. Blackburn and R. M. Blackburn, No. 817, and T. C. Donnell v. S. J. Robinson, No. 818, and purchases at said sales by T. C. Donnell, and a deed from T. C. Donnell to L. B. Davis, and J. F. Henry; and that said defendants in said justice's court, at and before the institution of said suits, were and have since been non-residents of this state. The only issue before the trial court was as to the title to the one-sixth interest in said land claimed by S. J. Robinson, and the four-sixths interest claimed by R. M. Blackburn; and the only question left for the determination of the court below was whether or not said judgments rendered in said cases in said justice's court and the sales made under and by virtue of orders of sale issued from said judgments, were absolutely null and void. The trial court decided that said judgments and sales were absolutely null and void, and in this case rendered judgment for plaintiffs for all of the land in controversy, canceling defendants' deed, etc., from which judgment, as stated above, defendants have appealed, and now present for the determination of this court the same questions decided by the lower court; that is, whether or not said judgments rendered in said justice's court, and the sales under said orders of sale, were absolutely null and void. If they were null and void, then the judgment of the trial court is correct; but, if they were not absolutely null and void, then the defendants should have recovered an undivided five-sixths interest in the land in controversy. J. W. Robinson, S. J. Robinson, and Mrs. Lou E. Blackburn were owners of the land described in plaintiff's petition. J. W. Robinson and S. J. Robinson owned each an undivided one-sixth interest, and Mrs. Lou E. Blackburn a four-sixths interest in said land. S. J. Robinson was indebted on promissory note to T. C. Donnell, as was also Mrs. Lou E. Blackburn. The indebtedness of Mrs. Lou E. Blackburn was incurred while she was a feme sole, and before she married R. M. Blackburn. On the ____ day of August, 1885, T. C. Donnell instituted two suits in the justice's court, precinct No. 1, Johnson county, Tex., the residence of himself, — one suit against S. J. Robinson for the sum of $163, (No. 818,) and one against Mrs. Lou. E. Blackburn, with whom was joined her husband, R. M. Blackburn, for $139, (No. 817.) Attachments were issued out of and from both of said suits, and levied upon the said interests of S. J. Robinson and Lou E. Blackburn in the land in controversy in this suit. On 31st of August, 1885, citations by publications were issued from said cases by justice of peace of said precinct and county, and were ordered published by the constable of said precinct and county. On the 26th of October, 1885, judgments were rendered in said cases in said...