Fowler v. Simpson

• Citation: 15 S.W. 682
• Parties: FOWLER <I>et al.</I> v. SIMPSON.
• Decision Date: 17 February 1891
• Court: Texas Supreme Court

15 S.W. 682

FOWLER et al. v. SIMPSON.

Supreme Court of Texas.

February 17, 1891.

Appeal from district court, Colorado county.

Adkins & Green, for plaintiffs. Foard, Thompson & Townsend, for defendant.

HENRY, J.

This was an action of trespass to try title. The tract of land in controversy is composed of two contiguous surveys of 640 acres, each patented to Samuel Fowler. The defendants pleaded not guilty, and the statute of limitations of five years. The cause was tried without a jury, and judgment was rendered for the plaintiffs for an undivided one-half interest in the land. Both parties perfected appeals, and assign errors. The court filed the following conclusions of fact: "The court finds that the two tracts of 640 acres each were granted to one Samuel Fowler in July, 1841; that Sam Fowler died in 1862, leaving as his sole heirs James Burton Fowler and John Fowler, two brothers of the said Sam, and that John Fowler died in 1881, leaving as his sole heir at law his brother, James Burton, who conveyed the land in controversy to the plaintiffs herein by deed dated May 28, 1889, and that this suit was instituted by them on the 7th day of September, 1889. (2) Also that John Fowler was in possession of the land, by his agent, one Kinchler, at the time of his death; that Kinchler resided on the land by virtue of and under a written contract, dated August 15, 1879, in which he was to hold possession until the 1st day of January, 1884, as the agent or tenant of said John Fowler; and that in 1881 the said Kinchler, while still in the possession of the land, agreed to hold the same as the tenant of defendant, Simpson, and afterwards, on the 10th day of March, 1884, executed and delivered to defendant, Simpson, a written instrument or acknowledgment of his tenancy, and that his wife now holds possession of the land as tenant under said agreement and by virtue thereof. (3) Also that the defendant, Simpson, purchased the 1,280 acres at tax-sale made by Toliver, who was the state and county collector of taxes, by deeds dated in 1878 and 1879, and that the description of the land in said deeds was amended in a deed date October 20, 1879, which deeds convey to Simpson the interest of John Fowler. (4) Also that Simpson recovered a judgment in the district court of Colorado county at its March term, 1884, in a suit brought by him against the heirs of the said John Fowler; that the judgment recited that the defendants were duly cited, but made default; that, although the judgment contains that recital, the citation on file shows that the citation was only published for four consecutive weeks, and the affidavit on file only states that the residence of the heirs is unknown. The judgment is dated in March, 1884. (5) Also that defendant Simpson has paid the state and county taxes on the 1,280 acres each year since and including the year 1879 to the present date."

The defendant, Simpson, as appellant, assigns as error a ruling of the court in permitting John J. Fowler, one of the plaintiffs, to testify to the declarations of his father, James Burton Fowler, that he was the surviving brother and only heir of Sam and John Fowler, made before he had conveyed the land to plaintiffs. It is contended that the "declarations of James Burton Fowler, made at the time he claimed to own the lands, were not competent evidence." James Burton Fowler was dead when the testimony was given. With regard to the admission of hearsay evidence in cases of pedigree Mr. Greenleaf says that the law resorts to it "upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is, therefore, restricted to the declarations of deceased persons who were related by blood or marriage to the person, and, therefore, in the succession in question." 1 Greenl. Ev. § 103. The evidence was proper. The court's conclusions of law embraced the following: "Under the judgment the court holds that defendant, Simpson, acquired the entire interest of John Fowler, deceased, in the two tracts, which was an undivided interest of one-half thereof in each tract. The court holds that the recitals in the judgment cured the defect in the citation and service, as decided by our supreme court in Treadway v. Eastburn, 57 Tex. 209." Also that defendant had established his title under his plea of limitation to an undivided one-half interest in the two tracts. In the above referred to case of Treadway v. Eastburn it was proposed to collaterally attack a judgment of a district court of this state, rendered upon service by publication of the citation, on the ground of want of jurisdiction of the court to render the judgment because the citation was not published for the time required by the law. The opinion in that case shows that the writ of citation then in question was in the usual form, and was dated July 24, 1866, and that the return of the sheriff thereon was as follows: "Came to hand July 30, 1866, and executed by publishing in the Paris Press, a newspaper published in the county of Lamar, state of Texas, for successive four weeks previous to return-day. This, the 25th day of July, 1866." The opinion quotes the following recital from the final judgment: "This day came the plaintiff, by his attorney, and the said defendant, Edward Eastburn, failed to appear and answer, but wholly made default, although duly served with process." The opinion, in stating the law of the case, says: "If the uncontradicted recitals in the record show affirmatively that the court did not have jurisdiction over the subject-matter, or that the jurisdiction over the person did not attach, then a presumption to the contrary will not be indulged; otherwise the presumption in favor of the jurisdiction of the court would prevail in every case, and the mere rendition of the judgment would of itself import absolute verity. To thus hold in cases where the record shows affirmatively want of jurisdiction, would itself impeach the record, and thus violate the very rule sought to be invoked, — that the record cannot, in a collateral proceeding, be...