East Texas Land & Improvement Co. v. Graham

• Decision Date: 13 December 1900
• Citation: 60 S.W. 472
• Parties: EAST TEXAS LAND & IMPROVEMENT CO. et al. v. GRAHAM et al.
• Court: Texas Court of Appeals

60 S.W. 472

EAST TEXAS LAND & IMPROVEMENT CO. et al. v. GRAHAM et al.

Court of Civil Appeals of Texas.

December 13, 1900.

Appeal from district court, Angelina county; Tom C. Davis, Judge.

Action by John H. Graham and others against the East Texas Land & Improvement Company and others to try title to land. From a judgment for plaintiffs, defendants appeal. Reversed.

Coke & Coke, for appellants. Mantooth & Townsend, for appellees.

PLEASANTS, J.

On August 2, 1869, a judgment was rendered in the county court of Angelina county, Tex., in favor of Calvin Mantooth against W. B. Graham and others for the sum of $367.89. Execution was shortly thereafter issued on said judgment, and the lands described in plaintiffs' petition levied on and sold and conveyed by the sheriff as the property of the said Graham. Said lands by mesne conveyances passed from the vendee at said sheriff's sale to appellant East Texas Land & Improvement Company, said company acquiring same for value in 1881. In September, 1896, appellees John H. Graham and Nellie Van de Mark, joined pro forma by her husband, C. B. Van de Mark, as the legal heirs of the said W. B. Graham, instituted this suit to recover aforesaid lands. They made defendants to their said suit the East Texas Land & Improvement Company and its tenants, Jerry Crane, Wiley Milner, Green Spell, and C. B. Stanley, the appellants herein, and also Calvin Mantooth, Amos J. Spears, W. B. Clark, Maria Carlington, A. Clark, M. Dickey, Ellen Garrett, and Foster Graham. The eight defendants last named claimed no interest in said lands, but were parties or heirs of deceased parties to aforesaid judgment of August 2, 1869. Plaintiffs' petition contained two counts; the first being in the usual form of trespass to try title, and praying for judgment for the lands described in said petition, with writ of possession, etc. By the remainder of said petition said plaintiffs alleged, in substance, that John H. Graham and Nellie Van de Mark were the legal heirs of W. B. Graham; that the said Graham resided in Angelina county, Tex., from the summer of 1859 until the early spring of 1868, when he left Angelina county and went to Ft. Bend county, in the state of Texas, where he died in September, 1870; that about May 1, 1868, suit was brought in the county court of Angelina county in favor of Calvin Mantooth against W. B. Graham, John L. Graham, Mahaly Clark, and Amos Spears, and prosecuted to final judgment on August 2, 1869, in favor of said Mantooth against all of said defendants therein for the sum of $367.89; that thereafter, in September, 1869, execution was issued on said judgment, and duly levied by the sheriff of Angelina county on the lands described in plaintiffs' petition, as the property of W. B. Graham, which lands were sold in October, 1869, under said levy, and purchased by one James Parker for a nominal consideration; that said Parker shortly thereafter conveyed the same to Amos Spears, one of the defendants in aforesaid judgment of August 2, 1869; that said lands have, by mesne conveyances, passed from the said Parker to the East Texas Land & Improvement Company, and are now claimed by said company; that said W. B. Graham was not indebted to the said Calvin Mantooth, nor to any other person, in the sum sued for; that the said Graham had removed from the county of Angelina early in the spring of 1868, and was never served with citation in said cause, and never authorized any one to represent him therein, and had no knowledge or notice of said suit or the judgment rendered therein at the date of his death; that said suit was for the purpose of obtaining a fraudulent judgment against the said W. B. Graham, in order that the lands described in plaintiffs' petition, belonging to him, might be levied upon and sold and acquired by the said Amos Spears, one of the defendants in said judgment. Plaintiffs then made allegations intended to excuse their long delay in instituting this suit, which will be set out in this opinion, and concluded with a prayer that said judgment of August 2, 1869, and the execution thereon, and all transfers under said judgment to said land be held by the court null and void, and that all deeds, transfers, and other evidences of title in the said East Texas Land & Improvement Company by virtue of said judgment and execution issued thereon be canceled and declared null and void, and that plaintiffs have judgment declaring all deeds and transfers under and by virtue of said judgment to be null and void, and no longer of any force and effect, and for general and special relief. All of the defendants answered; the East Texas Land & Improvement Company and its tenants, appellants herein, interposing various and divers defenses, both of law and fact. Calvin Mantooth pleaded not guilty, and specially that the defendants in said judgment of August 2, 1869, were not indebted to him in any sum whatever; that said suit was fictitious and for the fraudulent purpose of obtaining a judgment under which the lands of W. B. Graham might be sold and acquired by the said Amos Spears. All of the other defendants answered by formal plea of general denial. On May 8, 1900, said cause came for trial before a jury, and resulted in a verdict in favor of plaintiffs, on which judgment was rendered that plaintiffs recover against defendants the land described in their petition and all costs. The East Texas Land & Improvement Company and its tenants above named prosecute this appeal from said judgment. The recitals in the judgment rendered by the county court of Angelina county on the 2d day of August, 1869, in the case of Calvin Mantooth against W. B. Graham are as follows: "This case coming on to be heard, and both parties announcing themselves ready for trial, then came a jury of good and lawful men, to wit, James E. Russell and five others, who, after being duly sworn and impaneled well and truly to try the issue joined between the parties, and after hearing the evidence and argument of counsel and the charge of the court, retired to consider of their verdict, and after a short absence returned into open court the following verdict, to wit: `We, the jury, find for the plaintiff. James E. Russell, Foreman.'" Then followed judgment in the usual form for the plaintiff against the defendants W. B. Graham, John L. Graham, Mahaly Clark, and Amos J. Spears in the sum of $367.89. All of the papers in the case of Mantooth against W. B. Graham et al. had been lost or destroyed prior to the institution of this suit, and, in addition to the judgment itself, nothing of record was introduced in relation to said case, except the entries in an old fee book, which showed a charge by the clerk for four copies of the petition and eight citations; but the only sheriff's fee charged is $1.50, which was the fee for serving two citations. Calvin Mantooth, the plaintiff in the suit against W. B. Graham et al., testified in this case: That he knew very little about said judgment of August 2, 1869. That he did not now nor did he ever have any interest in said judgment, nor any claim against the defendants therein. That he never heard of said judgment until about the time this suit was filed. Did not know that his name was being used in the suit in which said judgment was obtained. Did not know that the land of W. B. Graham was sold under said judgment, and never received any of the proceeds of the sale of said land. That Eli Wheeler (who was an attorney practicing in Angelina county at that time), Amos J. Spears, and J. L. Graham came to him at Homer, and told him that there was a piece of land owned by the Graham heirs, the title to which they desired to perfect in the proper parties, and asked permission to use his name for such purpose, and that he told them that if there was nothing wrong in it they could use his name for that purpose. That he was not present when the land was sold. Never heard of any note of claim against any of the parties against whom the judgment of August 2, 1869, was rendered, and only authorized the use of his name for the purpose of perfecting the title to the land in the proper parties. He understood that the heirs all wanted J. L. Graham to have the land. Never heard of the judgment until three or four years ago. That Wheeler was a friend of his, and stated that they wanted to use the name of some man who would make over the title to the property to the proper party, but never explained how they were going to do it. That he was never called on to deed the land, and that he had no interest in the matter, and gave it no thought one way or the other. That he did not suppose when these parties requested him to let them use his name that they were going to perpetrate a fraud. That the reputation of all of said parties was good, so far as he knew. That he was not in court when said suit was tried, and did not know who was served with citation. That he thought Mr. Townsend, one of appellees' attorneys, had first spoken to him about said judgment about the time this suit was brought. Amos J. Spears, a witness for appellees, testified that he remembered a suit being brought against W. B. Graham, John L. Graham, Mahaly Clark, and himself, but did not know what attorneys represented the parties, nor who paid the attorney's fees, except what he himself paid. He knew nothing of the suit until he was cited to appear at the trial. He had previously indorsed a note which appeared to have been given to one of the Grahams by Mahaly Clark as an accommodation to the Grahams, and on their statement that they only wanted his indorsement on the note in order to get jurisdiction in Angelina county, so that suit could be brought in said county, and that they (W. B. and J. L. Graham) would hold him harmless on said indorsement. At that time witness was perfectly solvent, and his paper was regarded as good, and it now appears to witness that the statements made by the Grahams to him were not true, and that,...