Ebert v. Smith

• Decision Date: 14 November 1940
• Docket Number: No. 11023.,11023.
• Citation: 146 S.W.2d 432
• Parties: EBERT et al. v. SMITH et al.
• Court: Texas Court of Appeals

Page 432

146 S.W.2d 432

EBERT et al. v. SMITH et al.

No. 11023.

Court of Civil Appeals of Texas. Galveston.

November 14, 1940.

Rehearing Denied January 16, 1941.

Second Motion for Rehearing Denied February 20, 1941.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Action in trespass to try title by Mary E. Ebert, and others, against R. C. Smith, and others. Judgment for defendants, and the plaintiffs appeal.

Judgment affirmed.

P. Harvey and A. F. Sundermeyer, both of Houston, for appellants.

W. P. Hamblen and W. P. Hamblen, Jr., both of Houston, for appellees.

GRAVES, Justice.

This appeal is from a judgment of the 11th District Court of Harris County, entered both upon a jury's verdict in response to special issues submitted and also upon what the court found to be the undisputed evidence, divesting out of the appellants and investing in the appellees the title and possession of 94 acres of land in the John Waugh Survey in Harris County, Texas,—subject to various mineral rights and interests disposed of as between the parties thereto—the land and the mineral interests and all the parties to the judgment being fully described therein.

The decree further specifically denied the appellants' claim that the judgment in cause No. 108965 in the district court of Harris County, Texas, styled R. C. Smith et al. v. Daniel Alexander et al., of November 28 of 1924, was void and that, in consequence of its invalidity, the appellees herein had been mere trustees of the 94 acres involved, holding the title thereto for the benefit of the appellants, and affirmatively not only validated that judgment as vesting the title to the 94 acres in R. C. Smith and wife, Julia Smith, as against these appellants, but also expressly adjudicated that no such claimed trusteeship in the appellees for any of the appellants existed.

The fact-issues submitted under the court's theory of the case, together with the jury's answers thereto, were these:

"No. 1. Do you find from a preponderance of the evidence that R. C. Smith has had peaceable and adverse possession of the land sued for by plaintiffs, cultivating, using or enjoying the same, and paying all taxes thereon before delinquency, claiming under a deed or deeds duly registered for five consecutive years prior to March 16, 1938? Answer: `Yes'.

"No. 2. Do you find from a preponderance of the evidence that R. C. Smith has had peaceable and adverse possession of the land sued for by plaintiffs, cultivating, using, or enjoying the same for a period of ten consecutive years under a claim of right prior to March 16th, 1938? Answer: `Yes'.

"No. 3. Do you find from a preponderance of the evidence that none of the plaintiffs herein had any knowledge of the judgment rendered in cause No. 108,965, styled R. C. Smith v. Daniel Alexander, et al., on the 28th day of November, 1924, more than four years before March 16, 1938, the date the plaintiffs filed this suit? Answer: `They did not have such knowledge'.

"No. 4. Do you find from a preponderance of the evidence that plaintiffs used reasonable diligence to ascertain the entry of the judgment of November 28, 1924, in cause No. 108,965, styled R. C. Smith v. Daniel Alexander, et al.? Answer: `They did not use such diligence'.

"No. 5. Do you find from a preponderance of the evidence that if plaintiffs had exercised reasonable diligence, as that term has been hereinbefore defined for you, they would have discovered more than four years before the filing of this suit on March 16, 1938, that judgment had been rendered against them in cause No. 108,965, styled R. C. Smith v. Daniel Alexander et al.? Answer: `They would have discovered the same'.

"No. 6. Do you find from a preponderance of the evidence that the plaintiffs, Herbert Ebert, Lucille Leahy, Blanche O. Ebert, Mrs. Mary E. Ebert and Edna Leahy McBeth, or any one or more of them, did not have notice or knowledge of any fact or circumstances, acquired at any time before four years before the 16th day of March, 1938, that should have put them upon inquiry as to whether judgment had been rendered against them in cause No. 108,965, styled R. C. Smith v. Daniel Alexander et al., for the land involved in this suit? Answer: `They did have such notice'.

"No. 7. Do you find from a preponderance of the evidence that a citation in cause No. 108,965, R. C. Smith v. Daniel Alexander et al., was not issued and duly published in a newspaper published in Harris County, Texas, for four consecutive weeks, on the amended petition of the plaintiff filed in said suit on May 28, 1924? Answer: `It was issued and duly published'."

As the quoted special-issues disclose, this suit was originally filed on March 16 of 1938, the record otherwise reflecting that it was then in the form of an action in trespass to try title to the land involved; on June 15 of 1939, thereafter, the plaintiffs, in lieu of their original and two amended petitions, filed their third amended original petition, upon which the trial now under review was had.

The appellants are the widow and heirs of George H. Ebert, while the appellees are R. C. Smith and the minor children of himself and his deceased wife, Julia Smith.

Much of the record made below has been eliminated by this declaration in the appellants' brief:

"Appellants concede that under the evidence before the court, the appellees are entitled to a half interest in the land, and this appeal involves only the title to the other one-half interest.

"Appellants * * * duly filed their appeal-bond, appealing only from that part of the judgment denying plaintiffs any recovery against R. C. Smith and the Smith minors, and did not appeal against the other defendants."

The appeal-bond verifies the just-quoted reaches of the appeal, so that, in any event, the judgment as affects all other parties and issues appertaining exclusively to them than the appellants Ebert, on the one hand, and the appellees Smith, upon the other, not having been challenged in this court, has become final as rendered below.

As presaged in the preceding statement, appellants' major contention is that the trial court should have upheld their claim that the prior judgment against themselves for this same land in No. 108,965, Smith v. Alexander, was void under the evidence they adduced in their attack upon it (the appellees having rested upon that without presenting any of their own), leaving the title to a one-half interest in the 94 acres in the appellees as mere trustees for the benefit of the appellants, and, as incident to that holding, should further have decreed such interest in them.

On appeal, they ask a reversal of the adverse action taken below, and a rendition here for the one-half interest so coveted. But this court, after a careful review of the able briefs and arguments for both sides, is constrained to hold the judgment to have been correct, mainly upon these considerations:

It may be conceded:

(1) That appellants' cause of action, as declared in their trial petition herein, was a personal one by way of direct attack upon the judgment in cause No. 108,965, and that the same was shown to have been at least voidable because based upon a fatally defective nonresident citation against them, but that, in consequence of its being outstanding, they had no cause of action to recover the land involved, unless and until that judgment was first set aside, under these authorities, as relied upon by them: Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Garza v. Kenedy, Tex. Com.App., 299 S.W. 231; Port Arthur Milling Co. v. Beaumont Mills, 105 Tex. 514, 143 S.W. 926.

(2) That R.S. Articles 5509, 5510, relating exclusively as they do to actions...