Hall v. Aloco Oil Co.

• Decision Date: 14 September 1942
• Docket Number: No. 5465.,5465.
• Citation: 164 S.W.2d 861
• Parties: HALL v. ALOCO OIL CO. et al.
• Court: Texas Court of Appeals

164 S.W.2d 861

HALL v. ALOCO OIL CO. et al.

No. 5465.

Court of Civil Appeals of Texas. Amarillo.

September 14, 1942.

Rehearing Denied October 12, 1942.

Appeal from District Court, Yoakum County; Louis B. Reed, Judge.

Action by Mrs. Ethel Hall against the Aloco Oil Company and others for title to and possession of an interest in certain land. From a judgment of dismissal, plaintiff appeals.

Affirmed.

W. D. Girand, of Lubbock, and Scarborough, Yates & Scarborough, of Abilene, for appellant.

Carl C. Mays, Verne H. Maxwell, Watkins & Mays, Bromberg, Leftwich, Gowan & Schmucker, Chas. B. Ellard, and S. M. Leftwich, all of Dallas, Stubbeman, McRae & Sealy and Whitaker, Perkins, Turpin & Smith, all of Midland, Joe E. Childers, of Abilene, Irving G. Mulitz, of Houston, Lawrence L. Barber, of Seagraves, and Carl Rountree, of Lamesa, for appellees.

FOLLEY, Justice.

The appellant, Ethel Hall, filed this suit against the Aloco Oil Company, and forty-one others, for the title and possession of an undivided one-half interest in 480 acres of land in Yoakum County described as the N. 1/2 and the S.E. 1/4 of Section 764, Block D, John H. Gibson Survey. The appellees are the various owners, respectively, of the fee, mineral, royalty, and leasehold estate in the land. The appellant pleaded her title in detail and the appellees filed a motion to dismiss the suit by reason of the alleged insufficiency of her petition, which motion was sustained by the court and the suit dismissed.

From the appellant's petition it appears that the land in question was acquired from the State of Texas in 1908 by H. C. Jordan, then husband of the appellant. At such time Jordan and the appellant resided as husband and wife upon an adjoining section as their homestead. The land thus acquired in 1908 was admittedly the community property of H. C. Jordan and the appellant, but it formed no part of their homestead. On October 7, 1912, Jordan fled from the State and permanently abandoned the appellant and their three children. In November, 1912, W. E. Head, one of Jordan's creditors, brought suit against him in the County Court of Scurry County upon a note for $350 executed by Jordan in 1910. It is uncontroverted that this obligation was a community debt. Mrs. Jordan, now the appellant Ethel Hall, was not named as a party to the suit. Jordan was cited by publication, a writ of attachment was issued, and the land in controversy was levied upon. On July 10, 1913, after an attorney ad litem had been appointed to represent Jordan, Head recovered judgment against him in the Scurry County suit for debt and foreclosure of his attachment lien, and on November 4, 1913, the property involved was sold at sheriff's sale to B. H. Looney, predecessor in title to the appellees, all of whom claim under the Head judgment and sheriff's deed. Thereafter, in 1916, the appellant was granted a divorce from H. C. Jordan.

In a suit prior to the instant one, involving another tract of land and other parties, Jordan v. Texas Pac. Coal & Oil Co. et al., Tex.Civ.App., 152 S.W.2d 875, writ refused, wherein H. C. Jordan attacked the same Scurry County judgment and sheriff's sale, this Court upheld the trial court's judgment denying him any recovery. In that suit Ethel Hall was a party defendant and also sought, but was denied, recovery of the land therein involved. We refer to our opinion in that case for such additional facts as may shed light upon the instant controversy.

The appellant herein contends that she is making no attack upon the proceedings in the Head case, but bases her claim solely upon the theory that by reason of Jordan's abandonment of her prior to the Scurry County suit, the status of the property automatically changed and she became the custodian of the community property and, as such, was a necessary party defendant in any suit that sought to subject her interest in the community property to the payment of community debts, and not having been made a party to such suit, she asserts she is not bound thereby.

We are not in accord with appellant's contention in this respect. Except in cases specially excepted by law, not here material, it is elementary that in respect to community property the wife will be bound by a judgment against her husband whether he was plaintiff or defendant, though she was not a party in name to the proceedings. This apparently is based upon the doctrine of virtual representation in that the husband is by law made the representative of her interests. 23 Tex.Jur. 336, par. 288; Cooley v. Miller et al., Tex. Com.App., 228 S.W. 1085; Starr et ux. v. Schoellkopf Co., 131 Tex. 263, 113 S.W. 2d 1227. In this connection, however, the appellant contends that her rights in the property were not reached by the judgment and sale in question, because the husband having abandoned her, she had the exclusive right of control, management, and disposition of the community property, and the legal fiction no longer obtained, that where the husband is a party to such a suit, the wife is also a party. The authorities do not seem to support appellant's contention in this respect.

In the case of Howell v. Fidelity Lumber Co., Tex.Com.App., 228 S.W. 181,...