Fleming v. Seeligson

• Decision Date: 01 January 1881
• Docket Number: Case No. 1315.
• Citation: 57 Tex. 524
• Parties: J. PRESLEY FLEMING v. H. SEELIGSON AND W. A. ELLIS.
• Court: Texas Supreme Court

57 Tex. 524

J. PRESLEY FLEMING

v.H. SEELIGSON AND W. A. ELLIS.

Case No. 1315.

Supreme Court of Texas.

1881.

APPEAL from Galveston. Tried before the Hon. Gustave Cook, as special judge, the Hon. Wm. H. Stewart being disqualified.

This suit was instituted January 21, 1878, by J. Presley Fleming against Henry Seeligson and Wm. A. Ellis, the petition being in the ordinary form of trespass to try title to lots 1, 2 and 3, in block 84, in the city of Galveston. By amended petition filed April 18, 1878, the plaintiff sought to have a certain judgment and two different sales under different deeds of trust, under all of which defendant Seeligson claimed title, vacated and declared fraudulent and void, and to have a new trial of the case in which that judgment was rendered. The history of this judgment and of these deeds of trust and sales, as given in the amended petitions of plaintiff, embraces the following statements: The judgment attacked was rendered in a suit commenced in the district court of Galveston county October 29, 1872, by Henry C. Bradbury and Josephine L. Cooke, joined by her husband, Wm. N. Cooke, against J. Presley Fleming and Emma, his wife, and H. C. Drew, their tenant, and against Simon A. Bradbury, claiming title to an undivided two-sixths of the lots now in controversy, admitting the right of Simon A. Bradbury to one-sixth and of Fleming and wife to three-sixths, seeking a recovery of their two-sixths interest, and asking partition. Fleming and wife answered, asserting title in themselves to one of the lots. Simon A. Bradbury appears to have been represented by a guardian ad litem, appointed by the court. In this case, on March 5, 1875, Henry Seeligson, by leave of court, intervened, alleging that he was the owner of the lots and was in possession; that the claims of all other parties were without foundation, and cast a cloud on his title, asking judgment divesting them of all title or claim, and that he be quieted in his title. On the same day the case was tried, and verdict and judgment rendered in favor of Seeligson according to his prayer, the entry of the judgment reciting that all parties appeared by their counsel.

The plaintiff alleged that at the date of this judgment he was absent accidentally in New York city, being non compos mentis, and without any legal guardian, and that he remained in that condition until in the latter part of A. D. 1875; that his wife Emma had died July 27, 1873, and that the judgment was entered without her death having been suggested; that she left a will making her husband, J. Presley Fleming, her sole devisee; that previous to her death her husband, J. Presley Fleming, acting under a power of attorney from her, had made a note for $5,000, secured by deed of trust on the lots, to M. V. McMahon, the purpose being to borrow money upon said property (but no money was borrowed upon this transaction); and that the note and trust deed, though then believed by him to be valid, were invalid because the wife was not joined by her husband in their execution. The second of the trust sales attacked, and at each of which Seeligson was the purchaser, was under this deed of trust.

The first sale was alleged to have grown out of a note for $5,000 secured by deed of trust to W. B. Sorley, executed by J. P. Fleming on August 20, 1874, as collateral security for cash advances to be made by the Home Insurance and Banking Company. The first sale was made to collect a balance of $1,500 on this note on January 13, 1875, by a substitute trustee alleged to have been improperly appointed, was alleged to have been made without notice for the required time, and that at the sale, Seeligson, who became the purchaser for $1,000, gave notice that he held a valid note and deed of trust for $5,000 upon the property of older date, and that a suit was pending involving said property. In the meantime, it was alleged, Ellis had procured the first $5,000 note for a small sum, and under the first deed of trust a second sale was had by the same substituted trustee. At this sale Seeligson gave notice of the prior sale and of the suit, and became the purchaser for the sum of $5,000, no money having been paid at either sale. It was charged that at each of these sales bidders were deterred from bidding by the notice given; that the sales were made by a substitute trustee without authority, without due notice, etc.; also, that at the time of each sale plaintiff was absent and non compos mentis.

The pleadings stated that the attorneys for plaintiff in the suit in which Seeligson intervened, were deceived into the belief that Seeligson had acquired title by reason of his purchases at these trust sales, and made no defense; that the judgment was a surprise to him, and that he was unable by any diligence to have anticipated or prevented the same.

Ellis answered, disclaiming any interest except under Seeligson. Seeligson filed a general demurrer, also a special demurrer to the amended petition, except in so far as they sought to establish title in Fleming accruing since the judgment of March 5, 1875, and specially to so much of the petition as sought to reopen and set aside the judgment aforesaid, because the petition and allegations were insufficient, were not verified by affidavit, and that as to said judgment and all new matters set up in amended petitions, the same were barred by the lapse of time and the laws of limitation and prescription.

The general demurrer was overruled, but the special demurrer was sustained. Seeligson had also filed a denial of the allegations of the petition, especially all charges of fraud, and had set up the judgment of March 5, 1875, by way of estoppel.

The court charged the jury as follows: “The judgment and decree of the district court of Galveston county, rendered on the 5th of March, 1875, No. 5545, and in evidence, was then conclusive of the title to the property in controversy between the plaintiffs in this suit and the defendant Seeligson herein, and vested the same in Seeligson; and the plaintiff Fleming having shown no right or title to the property, or any part of it, acquired since that time, and the defendant Ellis having disclaimed title and possession, the jury will find a verdict in favor of the defendants.”

A verdict was returned for defendants and judgment rendered accordingly, and a motion for new trial having been overruled, Fleming appealed.

Wharton Branch and Fred Bernard, for appellant.

I. The judgment was void for want of jurisdiction of the subject matter. The court only acquired jurisdiction over the property sued for in plaintiff's petition, which was for two-sixths interest. McFadden v. McGreal, 25 Tex., 78-80;Hulme v. Janes, 6 Tex., 243;Fitzhugh v. Custer, 4 Tex., 398;Graham v. Roder, 5 Tex., 146;Sutherland v. De Leon, 1 Tex., 310;Rice v. Burnett, 39 Tex., 181;Hutchins v. Lockett, Id., 169; Freeman on Judgments, p. 99.

II. An intervenor cannot change the nature and character of the suit, and can only be permitted to litigate his interest, if any, in the matter in controversy; and a judgment in favor of an intervenor for anything not put in issue by the plaintiff is void for want of jurisdiction. Hearne v. Erhard, 33 Tex., 66;Lee v. Salinas, 15 Tex., 497;Clark v. Koehler, 32 Tex., 684;Dodd v. Arnold, 28 Tex., 101;Bradford v. Hamilton, 7 Tex., 58;Mussina v. Moore, 13 Tex., 9;Eccles v. Hill, 13 Tex., 65.

III. A judgment obtained without citation or notice is void for want of jurisdiction. McFadden v. McGreal, 25 Tex., 78-80; McCoy v. Crawford, 9 Tex., 359; Bryant v. Land, 25 Tex., 98, 99.

IV. A purchaser pendente lite cannot intervene in an action pending previous to and at the time of his purchase. His filing a plea therein is contrary to law, and does not make him a legal party to the suit, and a judgment rendered in favor of any person not a party to the suit is void.

V. A judgment obtained by fraud is void, and a demurrer admits the allegations in the petition to be true. Pruitt v. Farris, 5 Tex., 375;Williams v. Warnell, 28 Tex., 612;Rice v. Burnett, 39 Tex., 180;Hutchins v. Lockett, Id., 169; Freeman on Judgments, p. 99; Drinkard v. Ingram, 21 Tex., 650;Tuttle v. Turner, 28 Tex., 773;Martel v. Hernsheim, 9 Tex., 294;Young v. Van Benthuysen, 30 Tex., 769;O'Connor v. Towns, 1 Tex., 107-117;Chambers v. Hodges, 23 Tex., 110, 111;Snow v. Hawpe, 22 Tex., 172.

VI. The statute of limitation does not run against a person non compos mentis, nor in favor of a fraud, and a fraudulent judgment may be vacated and set aside, or reopened, and a new trial had on its merits. Morrison v. Loftin, 44 Tex., 21-23;Taylor v. Fore, 42 Tex., 256;Brierly v. Clark, 48 Tex., 352;Ragsdale v. Green, 36 Tex., 194-197;Hough v. Hammond, 36 Tex., 659; 1 Story's Eq. Jur., secs. 227-229; Forbes v. Moore, 32 Tex., 199; Pasch. Dig., art. 4617; Id., art. 7; Ripley v. Withee, 27 Tex., 17.

VII. Under the theory that the judgments and sales were only voidable, three years is the shortest period of limitation, where the suit is for land; the two years' statute only applies to suits for personal property. Limitation only runs from the date of adverse posession. Pasch. Dig., art. 4622; Becton v. Alexander, 27 Tex., 667, 668.

VIII. Under the theory that the judgment was only voidable, Fleming had seven years by the constitution in force at the date of the judgment, after removal of his disability, to institute suit, and at furthest, a less limitation did not commence to run until after the present constitution went into effect, on April 18, 1876, and appellants claim the limitation to have been arrested by the filing of the petition on January 21, 1878; if not, it certainly was stopped by the amended petition, filed April 18, 1878, this being in time, there being no retroactive law. Const. 1869, art. XII, sec. 14; sec. 16, Bill of Rights; R. S., p. 2; Scoby v. Sweatt, 28 Tex., 729.

IX. The two years within which to sue out a writ of error or bring a bill of review...