Grassmeyer v. Beeson

• Decision Date: 01 January 1875
• Parties: FREDERICK W. GRASSMEYER v. LEANDER BEESON.
• Court: Texas Supreme Court

18 Tex. 753

FREDERICK W. GRASSMEYER

v.LEANDER BEESON.

Supreme Court of Texas.

1875.

Having heretofore determined (in same suit reported in 13 Tex. 524) that the district court had jurisdiction to render the decree (in 1841, in a suit for specific performance of a contract to convey half a league of land, and for partition, where the defendant was absent, and service was made by publication and personally upon a curator appointed by the probate court, and the party was also represented by an attorney ad litem, appointed by the district court), it is perfectly clear that it is conclusive of the questions adjudicated therein, and that they are not now open to examination or discussion unless the decree was obtained by fraud. 4 Tex. 101, 387;16 Tex. 413;21 Tex. 154;24 Tex. 468;28 Tex. 443, 732.

However obtained, it will not be questioned that it was competent for the party whose interest was affected by it, to acquiesce in and abide by the decree if he saw proper.

If he is content, as it seems he has been for the space of fifteen years,--and the evidence leaves little room to doubt that he must have been aware of it,-- it would seem that a stranger, one who was not a party or privy, and who does not claim under the party or pretend to have had any right or interest to be affected by the judgment, cannot impeach it.

But if he can, there was evidence of fraud, which required the court to leave any such question to the jury.

There must be some proof, to warrant the setting aside of judgments, and the annulling of titles, on the ground of fraud. It must not be on mere surmise or suspicion, nor upon evidence which does not necessarily or naturally or reasonably tend to that conclusion.

The statute (of February 5th, 1840, to enable part owners of land to obtain partition thereof and for other purposes, Hart. Dig. art. 2617 et seq.) prescribes a procedure which parties may adopt if they see proper; but it is not obligatory. Our courts, possessing all the powers of courts of chancery, may proceed to administer relief upon the principles of equity, as fully and completely as a court of chancery in England could do, without the aid of the statute.

It is usual to provide in the decree (of partition) for the commissioners to report; and upon confirmation of their report, to direct conveyances to be made. But it is competent for the court to direct the manner of making the partition, and to decree the making of the conveyances, without the necessity of a report and decree of confirmation; and if the decree should be erroneous, none but the party or privy, or some one whose interest is in some way affected by it, could complain or take advantage of the error.

But if the partition had been invalid, still the decree (for title to half the land and for partition) without partition, vested in the plaintiff an undivided interest in the land, and constituted him a tenant in common with the original grantee; and that was sufficient title to enable him to maintain his action against this defendant.

We have heretofore decided that one tenant in common may maintain trespass to try title against a stranger. 10 Tex. 520;16 Tex. 506;20 Tex. 520;24 Tex. 205;30 Tex. 154.

It is scarcely necessary to say that the removal of the grantee (of the colonial headright) from this to another of the states of the Mexican confederacy in 1833, was not an abandonment of the country, within the inhibition of the 30th article of the colonization law of the 24th of March, 1825.

Appeal from Fayette. Tried below before the Hon. James H. Bell.

Action of trespass to try title to a half league of land, by appellant against appellee, commenced May 20th, 1852, in Colorado county. The land in controversy was the upper half of a league which was granted to Samuel Kennelly, as a colonist of Stephen F. Austin's colony, on the 28th day of April, 1831. On the 5th of August, 1833, Kennelly gave the plaintiff a bond to make him a title to the one undivided half of the said league, when the laws of the country would permit. On the 24th of October, 1840, Grassmeyer instituted suit on the bond for title and partition, in the district court of Colorado county. The petition in said suit for title and partition, alleged that Kennelly was “absent, in parts unknown,” and prayed service on Frederick Scranton, as curator of his estate. At November term, 1840, Scranton answered that he was ignorant of the matters alleged in the petition, and demanded proof. It was then ordered that publication be made in the Austin City Gazette for six weeks, requiring said Kennelly to appear at the next term, etc. Publication was accordingly made. At next term, A. M. Lewis was appointed attorney ad litem for Kennelly, and excepted on the ground that the law required personal service on the defendant. The exception was overruled, and a judgment was rendered for the plaintiff, April 26th, 1841, for title and partition. Title for the upper half made by the curator accordingly.

This suit was tried at the spring term, in 1854, and the court having instructed the jury that the decree for title in the case of Grassmeyer v. Kennelly was a nullity, the defendant had judgment; which judgment was reversed on appeal. The report of the case will be found in 13th Tex. 524.

The cause being remanded, the venue was changed to Fayette county, then in the second judicial district, on the ground that the then presiding judge of the first district had been of counsel for the defendant.

March 26th, 1856, defendant filed an amended answer, in which he claimed that the land had become vacant by Kennelly's abandonment of the country in 1833; allegation that said Kennelly abandoned the state of Coahuila and Texas, at that time, and went to the city of Matamoras, in the state of Tamaulipas, and has resided there ever since, and in the revolution assisted the enemy; alleging title in himself to three hundred and twenty acres, by virtue of the location of a valid land certificate for that amount, which he described.

November 9th, 1856, defendant filed another amendment in which he charged that the decree of title and partition in the suit of Grassmeyer v. Kennelly was fraudulent and void, stating specifications of fraud, at great length. Exception to this last amendment overruled.

The evidence was as follows: Grant to Kennelly as a colonist, April 28th, 1831. Decree of the district court of Colorado county, April 28th, 1841, as follows: In this case Frederick Scranton having been cited to appear and answer the petition of the plaintiff in behalf of Samuel Kennelly, absentee, and having filed an answer at the last November term of this court, wherein he says that he knows nothing of the allegations made by the plaintiff in his petition and therefore requires him to make proof of them as alleged. Whereupon at the said term of the court, it was ordered that publication be made in the Austin City Gazette for six weeks, requiring the said Kennelly to appear at the next term thereof to defend the suit, so pending against him; and publication having been made in the said Austin City Gazette for six weeks citing him to appear, as aforesaid, at the present term and defend, as aforesaid, and the case being called, and the plaintiff appearing by attorney, and neither the said Kennelly nor his curator, Scranton, appearing to defend the suit, Asa M. Lewis, an attorney and counsellor at law, previously appointed by the court to defend the rights of said absentee, appeared on the part of the defendant. Whereupon the case, by consent of both parties, being submitted to the court, and proof of the allegations in plaintiff's petition being made to the satisfaction of the court, it was, by reason of the law and the facts, ordered, adjudged and decreed, that the title and right of one undivided half of the league of land, granted to said Samuel Kennelly by the Mexican government, and situate on the west side of the Colorado river, be vested in the said Frederick W. Grassmeyer, to have and to hold the same to himself, his heirs and assigns. And it is further ordered by the court, that the said Frederick Scranton, curator of said Kennelly, do make to the said Grassmeyer a full and complete conveyance of all the right and title of said Kennelly to one undivided half of the aforesaid league of land. And it is yet further ordered that a partition be made of the said league of land between the said Grassmeyer and Kennelly, so that the shares alloted to each be equal in quantity, so far as may be. And in order to carry fully into effect this decree, it is ordered, with assent of both parties to this suit, that Joseph W. McClung Abel Beeson and John Toliver be, and they are hereby appointed commissioners to make, in conjunction with the sheriff, the partition of said league of land between the said Grassmeyer and Kennelly, according to the intention of this decree. Also the clerk of this court is ordered to issue a writ of partition to the said commissioners and sheriff, requiring them to divide said tract of land as hereinbefore related, and also due return to make of the manner in which they shall have effected such partition. Furthermore, the said Scranton, as curator of Kennelly, is hereby ordered and required to make to the said Grassmeyer a complete transfer and conveyance of all the right, title and interest of the said Kennelly in and to the portion of said league of land, which by the above named commissioners and sheriff, shall be allotted to the said Grassmeyer, as shall appear by the return made upon the writ of partition, setting forth the manner in which the same shall have been executed; and in case, upon the return of said writ of partition executed, said Scranton shall fail to make a conveyance to said Grassmeyer of the portion of said league allotted to him by said sheriff and commissioners, then it shall be the duty of the district clerk, and he is hereby required to make to the said Grassmeyer a complete and...