Hanrick v. Patrick Branch Same

• Decision Date: 29 November 1886
• Citation: 30 L.Ed. 396,119 U.S. 156,7 S.Ct. 147
• Parties: HANRICK v. PATRICK, Adm'r, etc., and others. BRANCH and another, Intervenors, . SAME
• Court: U.S. Supreme Court

119 U.S. 156

7 S.Ct. 147

30 L.Ed. 396

HANRICK v. PATRICK, Adm'r, etc., and others.

BRANCH and another, Intervenors,

.

SAME.

November 29, 1886.

L. W. Goodrich and W. Hallett Phillips, for Hanrick.

M. F. Morris, for Branch and another.

H. F. Ring and J. T. Brady, for Patrick, Adm'r., etc.

MATTHEWS, J.

Eliza M. O'Brien, since deceased, with Philip O'Brien, her husband, and William Brady, citizens of New York, commenced their action in the circuit court of the United States for the Northern district of Texas, against Edward G. Hanrick, a citizen of Texas. It was an action of trespass to try the title to real estate in the county of Falls, in that state, described generally as three tracts,—one known as the 'Antanacio de Le Serda' 11-league grant; the second as two parcels granted to Pedro Zarza; and the third a part of the 11-league tract granted to Rafael de Aquire. The common source of title, as between these parties, was Edward Hanrick, who died in 1865, in Montgomery county, Alabama, intestate and without issue, never having married. The plaintiffs below claim title as follows: Edward Hanrick left surviving him as his next of kin and only heirs, at the time of his death, one sister, Elizabeth O'Brien, two brothers, named respectively John and James Hanrick, and one nephew, Edward G. Hanrick, the defendant; he being the son and only child of Philip Hanrick, who died in 1852, and who was another brother of Edward Hanrick. Elizabeth O'Brien resided in the county of Wexford, Ireland, and is, and always was, an alien to the United States, and a subject of Great Britain. John Hanrick died intestate and without issue, never having married, in the year 1870, in the county of Wexford, Ireland, an alien to the United States, and a subject of Great Britain. The said James Hanrick left surviving him, as his next of kin and only heirs, four daughters, named, respectively, Elizabeth Clare, Catherine O'Neill, Annie, (otherwise called Honora,) and Ellen Hanrick; and four grandchildren, the children of a deceased daughter, named, respectively, Mary, Elizabeth, Bridget, and Robert Whelan; and one son, Nicholas Hanrick. These descendants of James Hanrick reside in Ireland, except Nicholas, Annie, (otherwise called Honora,) and Ellen Hanrick, who reside in the state of New York. By virtue of these facts, and of the laws of Texas and Great Britain, as hereafter shown, it was claimed that Eliza O'Brien, in 1878, was seized and possessed of an undivided one-third interest in the said estate of Edward Hanrick in the said lands, when it was claimed she conveyed to the plaintiff, Eliza M. O'Brien, her daughter-in-law, for her separate use and benefit, all her interest in the said estate and lands; William Brady, the other plaintiff below, being entitled to one-half of the said undivided one-third by virtue of a conveyance from Eliza M. O'Brien and her husband, Philip O'Brien.

The defendant in possession, having pleaded not guilty of the trespass complained of, asserted title in himself as the sole heir at law of the said Edward Hanrick, deceased, on the ground that he was the only descendant having inheritable blood, according to the laws of Texas.

The suit was begun February 13, 1880, and issue was finally joined on amended pleadings, by the filing of an answer by Edward G. Hanrick on April 3, 1883. On the next day, Wharton Branch appeared as an intervenor in the cause, and filed a pleading called an original answer, in which he denies the sufficiency in law of the plaintiff's petition; objects that on its face it is shown that necessary parties have not been joined as plaintiffs; denies all the allegations of the petition; pleads not guilty to the trespasses alleged therein; and then sets up title in himself to an undivided one-fourth of three-fourths of the estate under a conveyance alleged to have been made to him on the fourteenth of February, 1878, by Philip O'Brien, as attorney in fact, acting under a power of attorney alleged to have been made on the sixteenth of May, 1870, by Elizabeth O'Brien and James and John Hanrick. It is alleged that by that power of attorney Philip O'Brien was authorized and empowered to sell and convey their interests in said estate, and in pursuance of which he made the deed under which the intervenor claims title. The consideration of that deed is stated to have been money theretofore paid out, and expenses incurred and legal advice and information furnished and rendered, by the defendant to the said Philip O'Brien. The pleading concludes by praying judgment for the defendant against all parties to the suit, establishing his right, title, and interest in the estate; and that the same be set apart to him in severalty; and for costs and general relief.

On the same day John B. Sargent also appeared as intervenor, and filed an original answer on his behalf, similar in form to that of Wharton Branch, and claiming title to an undivided one-half of the interest of Elizabeth O'Brien and John and James Hanrick, under a deed made to him conveying that interest on the fourteenth of February, 1878, by Philip O'Brien, acting as their attorney in fact under the same power of attorney referred to in the answer of Wharton Branch; and concluding with a prayer for a similar judgment in his own behalf.

Thereupon the plaintiffs in the action filed pleadings, styled an answer to the petition for leave to intervene, and plaintiffs' first supplemental petition, in which they asked that the leave to intervene on behalf of Branch and Sargent be denied, and their petitions struck from the files; and specifically setting out the grounds on which they claimed that the alleged conveyances made by Philip O'Brien, as attorney in fact, to them, respectively, should be held to be null and void. Among those grounds were the following: First, prior to the execution of the deeds under which the intervenors claim title, two of the principals in the power of attorney, James and John Hanrick, had died, thereby revoking the authority; second, that the execution of the said deeds on the part of said Philip O'Brien had been obtained by the said Branch and the said Sargent by fraudulent representations, and that the same had never in fact been delivered. The plaintiffs' supplemental petition concludes with a prayer that they have and recover of the said Wharton Branch and the said John B. Sargent, as well as the said Edward G. Hanrick, an undivided one-third interest in the lands described in their original complaint, and for all other relief, general and special.

The defendant, Edward G. Hanrick, after the filing of these interventions, moved to dismiss the cause, on the ground, among others, that he had no interest in the controversy as between the plaintiffs on the one hand and Branch and Sargent on the other; but all objections to the intervention were overruled or disregarded, and the cause proceeded to trial on the issues as made between the plaintiffs and the defendant, Edward G. Hanrick, and also on those as between the plaintiffs and the said Branch and Sargent. The cause having been submitted to the jury on the tenth of April, 1883, a verdict was returned as follows: 'We, the jury, find for the plaintiff;' and thereupon judgment was entered on the verdict as follows: 'It is therefore ordered and adjudged by the court that the plaintiffs, Eliza M. O'Brien and Philip O'Brien and William Brady, have and recover of the defendant, Edward G. Hanrick, and of the intervenors, Wharton Branch and John B. Sargent, an undivided one-third interest in and to the following described lands: * * * And it is further ordered that a writ of possession in favor of said plaintiffs issue therefor; and that plaintiffs do have and recover of such intervenors such costs by them incurred by reason of such intervention, and of defendant all costs which were incurred herein, not including any costs incurred by the said intervention, for which let execution respectively issue.'

To reverse this judgment, the defendant, Edward G. anrick, sued out a writ of error on April 16, 1883, which was docketed in this court on the sixteenth of August of the same year. To reverse the judgment as against them, the intervenors, Wharton Branch and John B. Sargent, sued out their writ of error separately on September 26, 1884, which was docketed in this court on the twenty-fourth of November of the same year. The intervention of Branch and Sargent was permitted in compliance with article 4788 of the Revised Statutes of 1879, laws of Texas, which provides that, 'when a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.' Article 1188 prescribes that 'the pleadings of an intervenor shall conform to the requirements of pleadings on the part of plaintiff and defendant, respectively, so far as they may be applicable.'

The defendants in error, the administrator of Eliza M. O'Brien, Philip O'Brien, and William Brady, now move to dismiss the writ of error such out by Hanrick, on the ground that the judgment was jointly against him and the intervenors, Branch and Sargent, and that all should have joined in the same writ. The same objection, of course, applies to the writ of error sued out severally by the intervenors, Branch and Sargent. This motion presents the first question for consideration.

We assume, without so deciding, that the proceedings on the part of the intervenors may be justified under the statutes of Texas. It must also be admitted to be a general rule, well established by the practice and in the decisions of this court, that, when a judgment against defendants is joint, all the parties affected thereby must join in the writ of error, or there must be a summons and severance, or its equivalent. The question here, however, is whether this judgment, although so in form, is joint in law as...