Dunn v. Taylor

• Decision Date: 07 March 1906
• Citation: 94 S.W. 347
• Parties: DUNN et al. v. TAYLOR et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

94 S.W. 347

DUNN et al. v. TAYLOR et al.^*

Court of Civil Appeals of Texas.

March 7, 1906.

On Rehearing, April 11, 1906.

Appeal from District Court, Dimmit County; J. F. Mullaly, Judge.

Action by Ella G. Taylor and husband against Frank Dunn and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

N. A. Rector, for appellants. A. C. Bullitt, C. L. Bass, and F. Vandervoort, for appellees.

FLY, J.

Ella G. Taylor, joined by her husband, J. S. Taylor, instituted this suit to recover from Frank Dunn the John Cummings survey of 640 acres of land. In addition to the ordinary averments in actions of trespass to try title, title to the land by three, five, and ten year limitation was pleaded by the plaintiffs. Dunn answered by general denial and plea of not guilty, and also through a cross-action sued for the land, and attacked the judgment in cause No. 191, styled "The State of Texas v. The San Antonio National Bank et al.," which was a suit for delinquent taxes against the bank and an unknown owner. Afterwards J. V. Tackaberry intervened in the suit, alleging that he had purchased the land from Dunn since the suit was instituted, and filed pleadings similar to those of Dunn. Dunn and Tackaberry then amended their pleadings, and made a number of purchasers from Taylor and wife, parties defendant to their cross-action for the land. Those defendants pleaded three, five, and ten year limitations. The court peremptorily instructed a verdict for the Taylors and the parties brought into the suit by appellants. Appellees claimed title through a deed from the San Antonio National Bank, which bought the land at a sale by the sheriff of Dimmit county, made by virtue of an order of sale issued under a judgment in favor of the state of Texas and against an unknown owner, of date May 25, 1897. The suit in which the judgment was rendered was styled "The State of Texas v. The San Antonio National Bank et al.," and the judgment made no disposition of the bank. One of the deeds admitted in evidence was from Mrs. M. T. Taylor to Mrs. Ella G. Taylor. The latter was at that time the lawful wife of J. S. Taylor.

The first assignment of error brings in review the action of the court in sustaining exceptions to the cross-action of appellants attacking the judgment, which exceptions were based on the suit being barred by limitation of four years. The judgment was rendered on May 25, 1897, and the land was sold thereunder to the San Antonio National Bank on September 7, 1897, and the sheriff's deed was filed for record in Dimmit county on September 16, 1897. Appellants filed their cross-action on May 20, 1905, about eight years after the judgment was rendered, and considerably more than seven years after the sheriff's deed was filed for record. The foregoing facts were fully set out in the cross-action, and it was apparent on the face of the pleadings that appellants had exercised no diligence whatever in attempting to discover the fraud alleged in the procurement of the judgment and the sale of the land by virtue thereof. It was not alleged that the parties to the judgment had used any means to conceal the fact that the judgment for taxes had been rendered in favor of the state of Texas, nor that the sale under execution was fraudulently concealed. On the other hand, the judgment was duly recorded in the minutes of the court, and the sheriff's deed recorded a few days after the sale of the land. As was said by this court in the case of Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680: "It is the settled rule in Texas that fraud will only prevent the running of the statute of limitations until the fraud is discovered, or by the use of reasonable diligence might have been discovered. Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582; Anding v. Perkins, 29 Tex. 348; Bremond v. McLean, 45 Tex. 10; Kuhlman v. Baker, 50 Tex. 630; Ransome v. Bearden, 50 Tex. 119; Alston v. Richardson, 51 Tex. 1; Kennedy v. Baker, 59 Tex. 150; Brown's Heirs v. Brown, 61 Tex. 45; Calhoun v. Burton, 64 Tex. 510; Bass v. James, 83 Tex. 110, 18 S. W. 336." It is also well settled that, if a judgment is procured by fraud, it is subject to attack, through a direct proceeding, at any time within four years from the date of its rendition; but in order to suspend the running of the statutes of limitation, so as to permit such attack on a judgment after the expiration of four years, there must not only have been fraud in obtaining the judgment, but it must have been coupled with such concealment of the fraud as to prevent the attacking party from ascertaining the fraud by the use of reasonable diligence. This proposition necessarily follows from the principle that, in order for fraud to suspend the statute, there must be no lack of diligence on the part of the person attacking the transaction, for if the fraud is not concealed, but perpetrated in such a way as to charge him with knowledge, he is in no position to enter a court of equity for redress. Munson v. Hallowell, 26 Tex. 475; Railway Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52. In this case the sheriff's deed was a matter of public record, and in that deed it was recited that it was made by virtue of an execution issued under a certain judgment. That deed was placed on record, and the exercise of the least diligence upon the part of appellants would have led to a discovery of the alleged fraud. We have considered this matter as though the cross-action constituted a direct attack on the judgment, which is by no means true. It is requisite in an attack upon a judgment rendered voidable by fraud in its procurement that the suit should be brought in the court in which the judgment was rendered, and all of the parties to the fraud must be made parties. In the cross-action of appellants neither the state of Texas nor the San Antonio National Bank were made parties. It might be that, it being impossible to make the state a party, appellants would be relieved from that; but that would offer no excuse for a failure to make the bank a party. Smith v. Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. Rep. 794. In that case it was held that a cross-action was a collateral attack, for the reasons that the judgment sought to be attacked had been rendered in a different court, and all the original parties were not parties to the cross-action. It is not held in that case that an attack on a judgment through a cross-bill is a collateral attack merely because so made, and, while not absolutely necessary to the proper disposition of this case, in view of attacks made on the opinion of this court in the case of Scanlon v. Campbell (Tex. Civ. App.) 55 S. W. 502, by appellees, we deem it not improper to say that no valid reason can be advanced why an attack, made through a cross-bill on a judgment rendered in the same court, the same parties to the judgment being parties to the cause in which the cross-bill is filed, would not be a direct one. The cross-bill so attacking a judgment would, to all intents and purposes, be an independent suit to set aside the judgment. We have seen no authority to the contrary. This does not aid the cause of appellants, however, because their cross-bill was defective.

The second and third assignments are that the court erred in admitting the judgment in evidence entitled "The State of Texas v. The San Antonio National Bank et al.," because the same showed on its face that it was a suit for taxes against an unknown owner, and the law made no provision at that time for a tax suit against an unknown owner; and because the judgment showed that the San Antonio National Bank was one of the defendants, and no disposition was made of said defendant in the judgment. In regard to the last objection it may be said that in a collateral attack it will be presumed in aid of the judgment that some disposition was made of the party not mentioned in the judgment prior to its rendition. Crawford v. McDonald, 88 Tex 626, 33 S. W. 325; Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Gullett v. O'Connor, 54 Tex. 415.

Having disposed of appellants' cross-action as not being a direct attack on the judgment, the question arises, under the first objection to the introduction of the judgment in evidence, as to whether it is a void or merely voidable judgment. This becomes important for the reason that, if the judgment was on the record void, it is subject to attack in any proceeding and in any court. It is true that in the case of Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325, the Supreme Court held that a certain judgment was absolutely void, and yet held that it could not be attacked in a collateral proceeding; the ground for so holding being that such attack would be contrary to public policy. That decision, however, is in conflict with most authorities on the subject. Speaking on this subject, Van Fleet, in section 14 of his work on Collateral Attack, says: "There is a close analogy between a void deed and a void judgment. If a deed is a forgery, or was never delivered, or was executed by an assumed agent without color of authority, the apparent grantor can rest at ease, ignoring it entirely. He can defeat all rights and titles based on it whenever and wherever he meets them. So with a void judgment. The party whom it professes to bind can rest at ease, ignoring it entirely. He can defeat an action on it, and all rights and titles derived through it, whenever and wherever he meets them. Like a void deed, it is simply waste paper." In the case of Milam County v. Robertson, 47 Tex. 222, it was said: "When, however, the judgment is not merely erroneous but an absolute nullity, it can have no binding force or effect either in the court in which it is rendered or in any other in which it may be brought in question." Again, in the case of Bender v. Damon, 72 Tex. 92, 9 S. W. 747, Chief Justice Stayton said: "If a judgment be void, it is not necessary that the person against whom it is...