Ewing v. Howell

• Decision Date: 20 January 1885
• Docket Number: Case No. 1925.
• Citation: 63 Tex. 88
• Court: Texas Supreme Court
• Parties: KATE EWING, ADM'X, v. WILSON & HOWELL.

63 Tex. 88

KATE EWING, ADM'X,

v.WILSON & HOWELL.

Case No. 1925.

Supreme Court of Texas.

Jan. 20, 1885.

APPEAL from Burleson. Tried below before the Hon. I. B. McFarland.

James E. Shepard and L. R. Bryan, for appellant, cited: Pomeroy, Eq. Jur., sec. 914 and note; Blight's Heirs v. Tobin, 7 Monroe, 612;3 Am. Dec., 78; Wait's Actions and Defenses, p. 442, secs. 10 and 11; Id., pages 184, 185; 2 Johns. Ch., p. 512;5 Am. Rep., 441.

Sayles & Bassett, for appellees, cited: Laughter v. Seela, 59 Tex., 177, 185;Sternbergh v. Schoolcraft, 2 Barb., 153;Jackson v. King, 4 Cow., 207; Foster v. Jones, 23 Ga., 168; Snowden v. Dunlavey, 11 Penn. St., 9; Allison v. Taylor, 6 Dana, 87; Mansfield's Case, 7 Coke, 124; Wait's Actions and Defenses, 196; Yale v. Ward, 30 Tex., 17;Black v. Calloway, 30 Tex., 232;Edgar v. Galveston City Co., 46 Tex., 421, 428;Fitch v. Boyer, 51 Tex., 336.

STAYTON, ASSOCIATE JUSTICE.

The appellant seeks to set aside sales made under two judgments rendered against George Ewing, of whose estates it is alleged she was appointed guardian, by the proper court, on the 23d March, 1882, Ewing having been adjudged a person of unsound mind.

Those judgments were rendered in the year 1876, and the parties plaintiff in the several cases were not made parties to this suit. Sales under those judgments were made in the year 1876. She also seeks to set aside a sale made under a deed of trust executed by George Ewing, the sale having been made in the year 1876, and also to set aside a deed made by a tax collector in pursuance of a tax sale. The parties to the trust deed were not parties to this action, nor were the parties who purchased at the several sales made parties.

It is alleged, however, that the appellees acquired, prior to the 13th August, 1879, the several titles which passed by all the sales.

It is not claimed that the judgments were not valid judgments, rendered for the just debts of George Ewing, nor that the debt secured by trust deed was not a just debt, and the trust deed valid; but it is claimed that there were irregularities in the sales for which they ought to be set aside, and that George Ewing has been of unsound mind since 1870.

It is also alleged that, some time in the year 1878, the appellees agreed to buy one of the tracts of land sold, and to pay off the several debts on account of which the sales before mentioned were made, but that they fraudulently refused to do so.

The petition further alleges that on August 13, 1879, after having acquired from the persons who bought at the sales before mentioned all the interest which passed by them in the lands named, the appellees brought a suit of trespass to try title for the lands against George Ewing, which resulted in a judgment in their favor, rendered September 5, 1879, on which a writ of possession issued, under which the appellees were put in possession of the lands.

There is no averment that George Ewing was not duly cited in that case; nor is there an averment of any fact which would show that the district court which rendered the judgment did not have jurisdiction of the person of George Ewing.

There is no prayer that any of the judgments mentioned be vacated, nor valid reason for so doing shown.

Demurrers, both general and special, were urged to the petition, and were, by the court, sustained.

This ruling is alleged as error.

We are of the opinion that the court did not err; for it is unimportant what the objections to the several sales sought to be set aside may be.

If these sales were invalid, and might have been set aside upon proper proceeding, these matters of invalidity existed when the suit of trespass to try title was brought by the appellees against George Ewing, and existed at the time the judgment in favor of the appellees was rendered in that case, and therein should have been presented or otherwise made available.

The judgment rendered in that cause, so long as not set aside, is conclusive between the parties that title to the land was in the appellees at the date of its rendition.

So far as appears from the petition the appellees, in the suit of trespass to try title, may have recovered on the strength of a title superior to any which George Ewing ever had; but if recovered on the strength of the title which the appellees deraign through the sales sought to be set aside in this case, then they are precluded by the judgment rendered in that case from ever asserting title through any fact which existed on the day the judgment was rendered, unless it be shown that the court had no jurisdiction; there being no pretense of the existence of any fact which would render the judgment even voidable if jurisdiction over the person of George Ewing was acquired by the court.

The only ground, under the pleadings, on which it could with any degree of plausibility be contended that...