Foote v. Sewall

• Decision Date: 20 October 1891
• Citation: 17 S.W. 373
• Parties: FOOTE v. SEWALL <I>et al.</I>
• Court: Texas Supreme Court

17 S.W. 373

FOOTE v. SEWALL et al.

Supreme Court of Texas.

October 20, 1891.

Commissioners' decision. Section B. Appeal from district court, Collin county; H. O. HEAD, Judge.

Action of trespass by Fannie E. Sewall et al. against G. A. Foote. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jenkins & Pearson and Garnett, Muse & Mangum, for appellant. J. S. Jenkins Tom Andrews, and John Henry Shepherd, for appellees.

TARLTON, J.

This is a suit of trespass to try title, brought by appellees to recover 106 acres of land in the Rufus Sewall survey in Collin county, Tex. The land was patented to Rufus Sewall, grandfather of appellees. Appellees introduced patent and proved heirship. Appellant claimed title by virtue of a sale made under execution for costs issued from the district court of Fannin county, Tex., in a certain cause wherein Daniel Rowlett was plaintiff and the unknown heirs of Rufus Sewall were defendants. It is admitted that, if the judgment, execution, and sale of the land in controversy passed the title to said land from Rufus Sewall and his heirs, the appellant has a complete chain of title; but it is also agreed that, if said judgment, execution, and sale did not pass title to the land in controversy, then appellees, Rufus Sewall's heirs, are entitled to recover. From a judgment rendered in behalf of appellees by the honorable district court of Collin county appellant appeals to this court.

Two questions are to be considered by us: (1) The validity and effect of the judgment referred to; (2) the validity of the execution under which the land was sold. Daniel Rowlett brought suit to the fall term, 1845, of the district court of Fannin county, against the "unknown heirs of Rufus Sewall." The suit was to enforce specific performance of a locative contract with reference to four land scrips, entered into between Rufus Sewall, deceased, and plaintiff, and to obtain partition of the land located under said contract, in accordance with the terms thereof, — one-third to plaintiff, and the remainder to the said unknown heirs. The petition also prayed for citation by publication and for a judgment for costs. November 17, 1846, Daniel Rowlett, having previously made affidavit that the heirs of Rufus Sewall were unknown to him, further made oath that, as he was informed and verily believed, they resided beyond the limits of the state of Texas. December 23, 1846, citation by publication was issued for the said "unknown heirs of Rufus Sewall," which, according to the return of the sheriff, was published for 12 weeks, the period then required by law. An answer bearing no file-mark was found among the original papers of the cause, in the following words: "Daniel Rowlett vs. Heirs of Rufus Sewall. In this case the defendants appear by attorney, and admit the several allegations contained in plaintiff's petition, and pray that the court make a decree according to plaintiff's prayer and according to equity, justice, etc. MARTIN & EPPERSON." The evidence shows that Martin & Epperson were before and during the pendency of the suit reputable and leading attorneys in the Fannin district. November 16, 1847, the district court rendered judgment in the suit, which we think it proper to reproduce in part literally, as follows: "Daniel Rowlett vs. The Unknown Heirs of Rufus Sewall. 294. Tuesday, November 16,...