Fitch v. Boyer

• Decision Date: 01 January 1879
• Citation: 51 Tex. 336
• Parties: J. A. FITCH AND JOHN N. HENDERSON v. MICHAEL BOYER.
• Court: Texas Supreme Court

51 Tex. 336

J. A. FITCH AND JOHN N. HENDERSON

v.MICHAEL BOYER.

Supreme Court of Texas.

1879.

APPEAL from Clay. Tried below before the Hon. J. A. Carroll.

Action of trespass to try title brought in the District Court of Clay county August 4, 1874, by M. Boyer against appellant Fitch, to recover the northwest half of a survey of one league and labor of land, in said county, patented to Benjamin Hubert, assignee of Peter C. Harness. On the 22d of May, 1877, appellant Henderson intervened in the suit. After various amendments by the appellants, the pleadings of appellant Fitch were as follows:

1. General and special exceptions to appellee's petition.

2. Not guilty.

3. Statute of limitation of three, five, and ten years.

4. Purchase in good faith from those through whom appellee acquired his title, without notice of appellee's claim.

5. Possession in good faith and improvements.

6. That appellee's title was void, because the judgment in a cause numbered 178 on the docket of the District Court of Cooke county, in favor of Cloud and Bostick against Benjamin and Anna Hubert, through which Boyer deraigned title, was rendered without said court having acquired jurisdiction over the defendants therein by service of process or otherwise.

7. That Chipman, the sheriff, was not authorized to sell the land in question under the judgment in said cause number 178 and the execution issued thereon.

8. He adopted all of the answers of appellant Henderson, and made them a part of his own answers.

The pleadings of appellant Henderson were as follows:

1. That he was the owner in fee-simple of the Harness league, by deed from Benjamin Hubert to his wife, Anna M. Hubert, and from said Anna M. Hubert to himself.

2. That he owned said Harness league through a sale made by Benjamin Hubert's administrator.

3. That anterior to the sales through which he claimed, Benjamin Hubert conveyed the Harness league to appellant Fitch, and, in order to protect said Fitch against any failure of title to the Harness league, said Hubert executed to said Fitch a conditional deed to an adjoining league in the name of Wiley Morse, and that he (Henderson) owned the estate of said Hubert in said Morse league, and therefore he claimed the right and assumed the duty of defendant Fitch in this suit, in order to protect his (Henderson's) interest in said Morse league.

4. That Chipman, who, as sheriff of Clay county, sold the Harness league under the execution issued in said cause number 178, through which sale appellee acquired his title, was not sheriff of said county, but a mere usurper.

5. That Albert Austin, who, as clerk of the County Court of Clay county, recorded the deed made by said Chipman, pursuant to said sale, in the record of deeds of said county, was not clerk, but a mere usurper; and that said record of said deed was not made in Clay county, but, if it was made at all, it was made in Montague county, and that he was a purchaser in good faith from the defendants in said cause number 178.

7. That at the time of the sale of the Harness league by said Chipman under the execution in said cause number 178, the county of Clay had never been organized, or if it had been organized, it had lost its organization by reason of the abandonment of the county by the settlers thereof.

8. That the Harness league was the separate property of Anna Hubert, wife of Benjamin Hubert, and that the District Court of Cooke county did not acquire jurisdiction of said Anna in said cause number 178, by the service of process or otherwise.

9. He adopted the sixth answer of appellant Fitch as above set forth, and made it a part of his own.

Upon these pleadings the cause was tried in the District Court of said county before a jury, and it resulted in a verdict and judgment for appellee, from which appellants prosecuted a joint appeal.

The assignments of error are stated in the opinion, except those which do not seem to have been insisted on.

The record is quite voluminous, but the foregoing, in connection with the opinion, will present the case.

Hare & Head and John W. Henderson, for appellants.

I. The court erred in admitting in evidence the transcript in cause number 178, Cooke county records.

The judgment offered in evidence was a judgment by default, and should not have been admitted, because it failed to show that the court rendering it had jurisdiction of the parties defendant.

The appellee proved that the original papers in the suit anterior to the judgment were lost, and he offered no evidence to prove that the lost papers in said cause showed service, or that the defendants were served. (Thompson v. Griffis, 19 Tex., 116;DeWalt v. Snow, 25 Tex., 321;Burditt v. Howth, 45 Tex., 471.)

II. The court erred in admitting in evidence the transcript of the execution in case number 178.

In the caption of judgment offered, which is the only place where the names of defendants appear, they are stated to be Ben and Ann Hubert. The execution offered is against Ben and Anna Hubert.

The judgment bears no interest.

The execution refers to a judgment bearing interest at the rate of ten per cent. (Criswell v. Ragsdell, 18 Tex., 445;Shields v. Hunt, 45 Tex., 427; Parchman v. The State, 2 Court of Appeals, 229.)

The deed of the sheriff, offered in evidence by the plaintiff, appearing to have been interlined so as materially to alter and change its legal effect, before its admission by the court it was incumbent on the plaintiff to explain by evidence the alterations. (1 Greenl. Ev., sec. 564.)

III. The court erred in admitting in evidence the deeds from Garner and Thompson to Jacob Boyer, Jr.

The deeds in question conveyed an undivided one-half interest in the northwest half of the P. C. Harness league, and, under appellee's pleading in this case, simple action of trespass to try title, with no prayer for partition, could not be introduced in evidence over appellants' objection.

Appellee's petition set up claim to the northwest half of the P. C. Harness survey by metes and bounds. No prayer for partition.

The deed introduced by appellee from Thompson and wife to Boyer purported to convey “an undivided one-half of the northwest half of the Harness survey.” And so with the deed from Garner to Boyer.

The deed to Garner and Thompson was of the entire survey.

Fitch showed title to the entire P. C. Harness survey.

The judgment of plaintiff was for land set out by metes and bounds, but entirely different, with one exception, in the length of the lines, from that set out in the petition. (McKey v. Welch, 22 Tex., 390.)

The deed from Jacob Boyer to Michael Boyer disclosed that it was a trust deed, and ought not to have been admitted over appellants' objections. (Mann v. Falcon, 25 Tex., 271;Moreland v. Barnhart, 44 Tex., 275.)

The court erred in refusing to admit the evidence of Anna M. Hubert and J. C. Hubert to show that the judgment rendered in Cooke county was without service of notice of any character, and that Hubert and wife did not reside in Cooke county.

The evidence offered and excluded did not contradict the recitals in the judgment nor the record in case number 178 from Cooke county, and would have shown that said judgment was rendered without having obtained jurisdiction of the defendants, Ben and Anna Hubert, by service of process or otherwise, and was null and void, and was therefore improperly excluded by the court.

Defendants offered to prove, by the depositions of Mrs. Anna Hubert, that neither she nor her husband, Ben Hubert, was ever served with process in cause number 178 from Cooke county, and that no one was authorized to appear for them; that they resided at the time in Clay county and did not know of the suit in Cooke county; and defendants proposed to corroborate her by J. C. Hubert. The testimony of both was improperly excluded by the court. (Sutherland v. De Leon, 1 Tex., 250;Burditt v. Howth, 45 Tex., 470;De Walt v. Snow, 25 Tex., 320;McCoy's Heirs v. Crawford, 9 Tex., 356;Perdew v. Davis, 31 Tex., 490;Wilson v. Palmer, 18 Tex., 594;Witt v. Kaufman, 25 Tex. Supp., 386;Norwood v. Cobb, 15 Tex., 500;Harris v. Hardeman, 14 How., 339; Rorer on Jud. Sales, sec. 740; Goudy v. Hall, 30 Ill., 116; Johnson v. Wright, 27 Ga., 560; Gwin v. McCarroll, 1 S. & M., (Miss.,) 368.)

W. O. Davis, for appellee.

Appellants' objection to the admission of a transcript, because the names of the parties did not appear in the judgment, is not well taken. (Smith v. Chenault, 48 Tex., 457, 460;Luter v. Rose, 16 Tex., 53;Hays v. Yarborough, 21 Tex., 488.)

Judgments of the Districts Courts of this State support themselves, and in order to be admissible in evidence they need not show, otherwise than the judgment in question, that the court had jurisdiction of the defendant therein.

Appellants' last objection to said judgment, “that the judgment fails to show that the court rendering it had jurisdiction of the defendants,” is not well taken. (Truehart v. McMichael, 46 Tex., 226; Freem. on Judg., sec. 132.)

The assignments of error relied on appear in the opinion.

In answer to second assignment, counsel cited Alexander v. Miller, 18 Tex., 897; Freem. on Ex., sec. 42, et seq.;Custard v. Musgrove, 47 Tex., 217;Shields v. Hunt, 45 Tex., 424;Rivers v. Foote, 11 Tex., 662.

In answer to third assignment, he cited Coffee v. Silvan, 15 Tex., 358;Riddle v. Bush, 27 Tex., 676; Freem. on Ex., 341.

On the fourth assignment, he cited Paschal's Dig., art. 3716; Veramendi v. Hutchings, 48 Tex., 553; 1 Phil. on Ev., 607; Greenl. Ev., sec. 564.

On the fifth assignment, he cited March v. Huyter, 50 Tex., 243;Dorn v. Best, 15 Tex., 64; 2 Phil. Ev., 491.

On the sixth assignment, he cited Croft v. Rains, 10 Tex., 524;Hagerty v. Scott, 10 Tex., 533; Greenl. Ev., sec. 572.

On the seventh assignment, he cited Shields v. Hunt, 45 Tex., 424;Burleson v. Burleson, 28 Tex., 383;Wright v. Thompson, 14 Tex., 558.

On the eleventh assignment, he cited Lawler's Heirs v. White, 27 Tex., 250;Mitchell v. Meuley, 32...