Fowler v. Evans

• Decision Date: 01 January 1863
• Citation: Fowler v. Evans, 26 Tex. 636 (Tex. 1863)
• Parties: J. W. FOWLER AND ANOTHER v. W. F. EVANS, ADM'R, ETC.
• Court: Texas Supreme Court

26 Tex. 636

J. W. FOWLER AND ANOTHER

v.W. F. EVANS, ADM'R, ETC.

Supreme Court of Texas.

1863.

See this case for circumstances under which a judgment of a probate court, for costs arising in the partition of an estate, is held not to charge with notice a bona fide purchaser for a valuable consideration, who, subsequently to the rendition of the judgment, acquires title derived from the heirs against whom the judgment for costs was rendered.

Quære. Whether all judgments of the county courts for costs arising in the partition of estates are such final judgments as constitute liens on all the real estate which the persons against whom such judgments are rendered may own in the county?

Under the probate law of 1840, the share of each distributee was liable for such portion of the costs of the partition as was adjudged against him; but this could not be held to be a lien upon all the real estate of the distributee in the county, attaching to lands in the hands of third persons, purchasers from the distributee, so long as executions were regularly issued upon the judgment for costs.

APPEAL from Walker. Tried below before S. D. Hay, Esq., special judge.

The appellants, John W. and W. H. Fowler, brought this action of trespass to try title against Jesse Evans, the intestate of the appellee, on the 5th day of April, 1852.

The land in controversy was a portion of the headright league of John H. Cummings, deceased. The defendant set up title in himself to 460 acres of the land sued for, claiming by deed to him, with special warranty from James Powell, of date February 11, 1847, filed for record the same day. Defendant alleged that at the time of his intestate's paying the purchase money and receiving his said deed, he had no notice of the adverse claim of the plaintiffs, whose title had not then been recorded; and that said Powell, at the time of the purchase from him, was seized in fee, or pretended to be so seized. That Jesse Evans, defendant's intestate, was therefore a purchaser in good faith for a valuable consideration and without notice. Powell's title consisted of a quitclaim deed from the heirs of John H. Cummings, made on the 15th day of May, 1846.

The plaintiffs claimed under their purchase at sheriff's sale under an execution issuing on the 5th of August, 1845, from a judgment of the probate court, dated January, 1844, against the heirs of Cummings, for costs incurred in the partition of the estate between the heirs and the widow of Cummings. The deed of the sheriff to the plaintiffs was not recorded until April 1, 1848. The facts with reference to the judgment for costs appear sufficiently in the opinion. The validity of the plaintiffs' title, as against that of the defendant's intestate, depended, so far as it is considered by the court, upon the question whether the judgment of the probate court for costs constituted a lien upon the land in controversy, and charged the defendant's intestate with notice of the plaintiffs' title at the time of the purchase of the land by the defendant's intestate.

Verdict and judgment for the defendant....