Dewitt v. Herron
| Decision Date | 01 January 1873 |
| Citation | 39 Tex. 675 |
| Parties | SARAH DEWITT ET AL. v. ANDREW HERRON |
| Court | Texas Supreme Court |
1. The act of 1843 (Hart. Dig. 637), providing for a change of venue in cases where the judge was interested, was not supplied and repealed by the act of 1846, nor by the constitution.1
2. Though there was no statute in 1847 specially authorizing a change of venue where the judge was related to one of the parties, a reasonable construction of the constitution and laws then in force would give the district judges full authority “to order a change of venue of a case whenever the judge was disqualified to sit in the case.”
3. See this case for acts of an attorney against whom fraud was charged, held not sufficient to sustain the charge.
APPEAL from Travis. Tried below before the Hon. E. M. Pease, as special judge.
The litigation which terminated with this suit began in 1846, and involved title to one league of land adjoining the town of Seguin. The first suit was brought by the administrator of Thomas R. Miller, through whose heirs Herron claimed title, and will be found reported in 9 Tex. 239.
This suit was in trespass to try title, and brought in Guadalupe county, on the twenty-ninth of January, 1854, by Sarah Dewitt and the heirs of her husband, Green Dewitt.
Herron, on the twenty-fifth of July, 1854, plead not guilty; and specially, that in 1830, one Joseph D. Clements and Green Dewitt entered into an agreement to build a grist and saw mill on the Guadalupe river, for which Clements obtained a grant for three leagues of land; that by the terms of the agreement Green Dewitt was entitled to first choice of one out of the three leagues; that he selected the league in controversy, and thereby became equitably entitled to said league; that in 1834, while Dewitt was the equitable owner of the land, and before he received any conveyance or title from Clements, he sold it to Thomas R. Miller; that Miller paid him all the purchase money; that he gave Miller an order to Joseph D. Clements, requiring him to make the title to Miller, and that the land remained the property of Miller until he died in 1836, and since then it belonged to his heirs; that plaintiffs were neither the heirs nor assignees of Miller; that they never had actual possession of the land; that Herron had acquired his title and possession from the heirs of Miller; that Green Dewitt died in 1835, and Miller was killed in 1836; that J. D. Clements died in 1844; that after Dewitt sold the land to Miller he never claimed it, and that Clements up to his death recognized the title of Miller to the land.
That none of Green Dewitt's heirs ever claimed the land until 1841 or 1842, when some of the papers of Thomas R. Miller had fallen into the hands of some person who had scattered them in various parts of the United States; that the order from Green Dewitt to J. D. Clements to make the title of the land to Miller was lost and never had been found.
That Clements was administrator of Thos. R. Miller's estate until 1844, when he died; that after the heirs of Green Dewitt first claimed the land in 1841 or 1842, to 1846, the country was in a state of alarm, and the people about to abandon the country; that the judge of the court and nearly all the lawyers were taken prisoners to Mexico, and kept a long time.
That the unsettled condition of the country, and the fact that Clements expected to recover the order, and the uncertainty as to whether the heirs of Green Dewitt would enforce their claim to the land, caused Clements to delay the institution of suit to enforce the claim of Miller until he died; that John P. Hawkins was appointed administrator of T. R. Miller, at the October term, 1846, of the district court of Gonzales; the said Hawkins brought suit against C. C. Dewitt, Christopher C. Dewitt, Sarah Dewitt, as the administratrix of Green Dewitt and in her own right, and A. H. Jones and Edward Dickerson, as executors of the estate of J. D. Clements, for the land in controversy.
That the suit was removed to Bexar county, and at the fall term, 1850, judgment was rendered in that cause, and affirmed by the supreme court at Austin, at fall term, 1852, and the title of the land sued for decreed to be in the heirs of Thomas R. Miller.
The defendant admitted that the plaintiffs were the only heirs of Green Dewitt.
On the twenty-ninth of October, 1856, the plaintiffs filed an amended petition and replication to the defendant's answer, denying all the allegations in the answer not specially admitted; they admitted the contract between Green Dewitt and Joseph D. Clements, by which Green Dewitt became the equitable owner of the land sued for, but denied that Dewitt ever sold it to Miller, and alleged that Dewitt owned it at his death; denied that Miller paid Dewitt anything for the land, or that he ever executed an order, in favor of Miller, to Clements, as stated by defendant, or that either Miller's heirs or representatives ever had any legal or equitable interest in the land, and plead lapse of time, stale demand, and statute of limitation of ten years.
Plaintiffs plead that the former suit was illegally brought in Guadalupe county; that the succession of the estates of Clements and Green Dewitt were opened in the probate court of Gonzales county, and that the district court of Guadalupe county had no jurisdiction over the parties or the subject matter; that neither the district court of Guadalupe or Bexar county had any jurisdiction to render judgment in that suit in favor of Hawkins; that the venue in said case was changed from Guadalupe county to Bexar county at the fall term, 1847, without the consent of the plaintiffs, Sarah and C. C. Dewitt, and that the judgment then rendered and the affirmance of the judgment by the supreme court were both void. They alleged that by a judgment of the district court of Gonzales county, rendered at the fall term, 1841, all the title that Clements had to the land in controversy was vested in Sarah Dewitt, for the heirs of Green Dewitt; and charged that the judgment rendered in the district court of Bexar county was procured by fraud between the administrator, J. P. Hawkins, and Andrew Neil, who was at the time the attorney of Sarah and C. C. Dewitt; that at the time they employed him, and when the judgment was rendered, he, Neil, had a deed to himself for an interest in the land in controversy from the heirs of Miller; that he concealed the fact from plaintiffs, and that he failed to plead the proper defenses, or to prepare the case for the supreme court, for fraudulent purposes; that the defendant knew this before he purchased the land, and that he had not paid the purchase money.
C. C. Dewitt plead that his counsel advised him that his purchase of the land at administrator's sale was void; hence he joined the other heirs of Green Dewitt in this suit, and asks that their distributive shares may be decreed to them, and that the title set up by defendant be annulled.
On the ninth of October, 1856, the defendant filed an amended answer containing numerous exceptions. He alleged that since the rendition of the judgment in favor of Hawkins, as administrator of Thomas R. Miller, on the twenty-fourth of May, 1852, he, Herron, purchased the land from the devisee of Thomas R. Miller for a full and adequate consideration, without any knowledge of the fraud practiced by Andrew Neil, or any other unfairness in obtaining that judgment; that he had, in good faith, put permanent and valuable improvements on the land worth ten thousand dollars, and alleged that the judgment in favor of Hawkins was in all things affirmed by the supreme court at the November term, 1852.
At the fall term, 1856, the venue was changed from Caldwell to Travis county, by agreement of the parties.
On the first of July, 1859, the plaintiffs filed an amended petition, and alleged that if Green Dewitt ever did agree to sell the land to Thomas R. Miller, it was a parol executory contract, not reduced to writing, and never consummated by Dewitt and Miller; that neither J. D. Clements nor Green Dewitt had any title to the land at the date of the contract; that the land in controversy was not then designated; that the sale from Dewitt to Miller, as alleged by the defendant, was a parol sale; that Dewitt never delivered the possession of the land to Miller, or any one for him, and that therefore the sale was void; that when the former suit was brought by Hawkins against Sarah Dewitt and C. C. Dewitt, Andrew Neil had a deed from one of the heirs of Thomas R. Miller to an undivided interest in the land, and was thus directly interested with the heirs of Miller in the land; that Sarah and C. C. Dewitt employed Neil to defend them in that suit, without any knowledge of his interest, and that he concealed it from them until after the judgment was rendered in the district court of Bexar county; that Neil without the knowledge of plaintiffs, colluded and confederated with the administrator of said Miller, and with one or more of the heirs or attorneys of the administrator, for the purpose of enabling them fraudulently to recover the land; that he willfully and fraudulently neglected and failed to plead the proper legal defenses which he, said Neil, well knew would defeat that suit; that he fraudulently lost that suit and suffered said judgment to be rendered to hold the interest he had purchased; that in consequence of the known right of the plaintiffs to the land, the defendant purchased it for thirty thousand dollars less than its value; and if it should be determined that the defendant had paid the purchase money, they asked to be allowed to refund it, and be subrogated to the rights of defendant.
On the first day of February, 1859, Herron filed replication to plaintiffs' amended petition, and denied the fraud alleged in obtaining the judgment plead in bar, and all knowledge of or complicity in the fraud charged, and alleged that he bought the property for a valuable...
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