Dempsey v. Gibson, 1885.
| Decision Date | 22 April 1937 |
| Docket Number | No. 1885.,1885. |
| Citation | 105 S.W.2d 423 |
| Parties | DEMPSEY et al. v. GIBSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Navarro County; J. S. Callicutt, Judge.
Suit by Ford Dempsey and others against Mrs. El J. Gibson to set aside a judgment and in trespass to try title. From an adverse judgment, the plaintiffs appeal.
Reversed, and cause remanded for a new trial.
Richard & A. P. Mays, of Corsicana, for appellants.
Taylor & McWilliams, of Corsicana, for appellee.
This suit was brought by Ford Dempsey and others against Mrs. El J. Gibson to set aside a judgment previously recovered by Mrs. Gibson's deceased husband against the said Ford Dempsey and the other plaintiffs herein in the same court and in trespass to try title to recover an undivided interest in 75 acres of land in Navarro county. The judgment of the lower court was unfavorable to plaintiffs, and they have appealed.
A brief statement is necessary to an understanding of the case. In 1918, the land in question was the community property of C. M. Dempsey and wife, Mattie E. Dempsey. There was an outstanding vendor's lien against the land in the sum of $3,750, the payment of which had been assumed by C. M. Dempsey as a part of the purchase price of the land. The said C. M. Dempsey died intestate in 1918, leaving surviving him his wife, Mattie E. Dempsey, and several children, all of whom are appellants herein. Shortly thereafter, J. Frank Williams was appointed administrator of C. M. Dempsey's estate and the probate proceedings on said estate were not closed until the year 1934. In 1925, El J. Gibson, who had become the owner of the outstanding vendor's lien note in the sum of $3,750, brought suit in the district court of Navarro county in cause No. 14672 against the said J. Frank Williams, as the administrator of said estate, and against the said Mattie E. Dempsey and Ford Dempsey and all the other appellants herein, to recover his debt as evidenced by said vendor's lien note, and to foreclose his lien on said land. In this connection it should be noted that, while the petition prayed for personal judgment against Mrs. Dempsey and the heirs of C. M. Dempsey, deceased, no grounds were alleged to show why such defendants should be held personally liable for the payment of the debt when its payment had been assumed alone by C. M. Dempsey, deceased. The petition specifically alleged the pendency of the probate proceedings on the estate of C. M. Dempsey, deceased, but did not allege that the claim sued on had ever been presented to the administrator of said estate for payment. In the same suit, Gibson further alleged, in effect, that in 1923, after the death of the said C. M. Dempsey, the said Mattie E. Dempsey, his widow, had executed and delivered to the Liberty National Bank a deed of trust on her undivided one-half interest in said land to secure the payment of a debt contracted by her after the death of her husband; that there had been a sale under said deed of trust and Mrs. Dempsey's interest in the land had been bought in by Gibson; that as a matter of fact he had bought said land in for Mrs. Dempsey's use and benefit and that she had executed to him her note for the sum of $2,000 for the money advanced by him in buying the land, with the understanding that he should hold the title to said land for her in trust to secure the payment of said note. He alleged that the note was past due and unpaid and prayed for a personal judgment against Mrs. Dempsey for the amount of said note, with interest, and for foreclosure of his lien on Mrs. Dempsey's interest in said land. J. Frank Williams, as administrator of said estate, filed a disclaimer in said suit and was dismissed from the cause with his costs. Mrs. Mattie E. Dempsey and all of the other defendants therein who were of age filed waivers of citation. The minor defendants, all of whom had been served with citations, were represented by a guardian ad litem appointed by the court for that purpose. The court entered a personal judgment in favor of said El J. Gibson against all of the defendants therein, except the administrator of said estate, for the amount of the $3,750 note and interest, with foreclosure of the vendor's lien on said land. The court also entered a personal judgment in favor of the said El J. Gibson against the said Mrs. Mattie E. Dempsey for the amount of said $2,000 note and interest, with foreclosure of the lien on said land. Shortly thereafter, an order of sale was issued on said judgment and the land was sold and bought in by the said El J. Gibson. The said Mrs. Mattie E. Dempsey has since died intestate, leaving the plaintiffs herein, who are her children and grandchildren, as her only surviving heirs, and El J. Gibson has since died, leaving the defendant herein, Mrs. El J. Gibson, as his only heir and successor in title. The probate proceedings in the C. M. Dempsey estate were closed in 1934. The land in question was included in the inventory originally filed in the probate proceedings, but there is nothing to show that the probate court ever otherwise took any cognizance of this particular tract of land. The suit here under consideration was brought in August, 1935, by the children and grandchildren and heirs of the said C. M. and Mattie E. Dempsey against the said Mrs. El J. Gibson to set aside the judgment previously entered in cause No. 14672, and to recover an undivided 7/16 interest in the tract of land in question, being the interest in said land so inherited by the plaintiffs from their deceased father, C. M. Dempsey.
The trial court held that the judgment in favor of El J. Gibson against Ford Dempsey and others in said cause No. 14672 was valid, but that the district court was without authority to order a sale of the land in satisfaction thereof, and that said judgment should have been certified to the probate court for observance. The court ordered the property resold in satisfaction of the judgment of foreclosure rendered in cause No. 14672.
The material question to be determined is whether or not the judgment of foreclosure entered in cause No. 14672 was valid. This depends on whether or not said court had jurisdiction to enter said judgment. It will be noted that the petition in said cause had a dual purpose, (a) to recover a debt owing by the estate and to foreclose a lien on land, and (b) to recover a debt contracted by Mrs. Dempsey after the death of her husband and to foreclose a lien on her interest in the same land. Ordinarily the probate court has exclusive jurisdiction to establish or reject claims against estates pending before it. 13 Tex.Jur. 606, 614; 14 Tex.Jur. 24; Rev.St. arts. 3509, 3530. However, it is a court of limited jurisdiction and, where the contemplated suit involves equities for the settlement of which the jurisdiction of the probate court is inadequate, resort may be had to the district court for the determination of such questions. 13 Tex. Jur. 608; Lauraine v. Ashe, 109 Tex. 69, 191 S.W. 563, par. 13, 196 S.W. 501. The foregoing principles are well known, but the difficulty here encountered lies in making proper application thereof in this particular case. The material question to be here determined is whether or not the entire claim as asserted by Gibson in the district court involved equities in connection with the claim against said estate that were beyond the jurisdiction of the probate court and required...
To continue reading
Request your trial
-
Swilley v. Hughes, B--3118
...its position Bank cites such cases as Jaye v. Wheat, 130 S.W.2d 1081 (Tex.Civ.App.--Eastland 1939, no writ); Dempsey v. Gibson, 105 S.W.2d 423 (Tex.Civ.App.--Waco 1937, writ dism'd); Cain v. Church, 131 S.W.2d 400 (Tex.Civ.App.--Dallas 1939, no writ); Gannaway v. Barrera, 74 S.W.2d 717 (Tex......
-
Vick v. Merchants' Fast Motor Lines
...McDonnell v. Miller, Tex.Civ.App., 133 S.W.2d 142, 143; Robinson v. Ft. Worth Hospitals, Tex.Civ.App., 109 S.W. 2d 1077; Dempsey v. Gibson, Tex.Civ.App., 105 S.W.2d 423; Green v. Duncan, Tex. Civ.App., 134 S.W.2d 744, Appellants' fourth, fifth and sixth propositions present the contentions:......
-
Sunshine Bus Lines v. Craddock
...Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677; San Antonio Paper Co. v. Morgan, Tex.Civ.App., 53 S.W.2d 651; Dempsey v. Gibson, Tex.Civ.App., 105 S.W. 2d 423, 430. The facts involved in the different cases necessarily differ, and each case must be decided on its own facts, and in a......
-
Van v. Webb
...1016; Peters v. Hood, 2 Willson Civ.Cas.Ct.App. § 376; Turman v. Robertson & Herndon, 3 Willson Civ.Cas. Ct.App. § 215; Dempsey v. Gibson, Tex.Civ. App., 105 S.W.2d 423, error dismissed. It will be noted in the case at bar that all heirs have conveyed to Mrs. Webb and, if the land involved ......