Hardy v. Beaty

• Decision Date: 10 May 1892
• Parties: HARDY <I>et al.</I> v. BEATY <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 778

HARDY et al. v. BEATY et al.

Supreme Court of Texas.

May 10, 1892.

Commissioners' decision. Section B. Appeal from district court, Bosque county; J. M. HALL, Judge.

Action by Anna A. Hardy and others against J. R. Beaty, A. W. Borfort, and the unknown heirs of F. H. Alley. Judgment for Beaty and Borfort, and the others appeal. Reversed.

S. H. Lumpkin, for appellants. Gillette & Murrell and D. H. Hewlett, for appellees.

FISHER, J.

This suit is for partition of Joseph L. Wilson 640 acres survey of land, brought by appellants against the unknown heirs of F. H. Alley, and against appellees, J. R. Beaty and A. W. Borfort. February 9, 1889, Thomas Jones and Mary Taylor and her husband, C. W. Taylor, intervened, and disclaimed as to certain lands described in the petition, and set up title to the balance. Beaty set up exclusive title to 120 acres by metes and bounds, and Borfort to 220 acres out of the south half of the survey, and both disclaimed title to remainder of survey. Both pleaded the statutes of three, five, and ten years' limitation, and improvements in good faith. As to pleas of limitation, plaintiffs plead coverture and not guilty to the plea of intervention. The unknown heirs of Alley, by their guardian ad litem, answer, and adopt the allegations of plaintiff's petition. Judgment below was rendered against appellants and the unknown heirs of Alley in favor of the defendants, and also in favor of interveners, for 320 acres of the north half of the survey, and removing plaintiff's claim as a cloud on the interveners' and defendants' title, and vesting the title to the land in defendants and the interveners. The plaintiffs and the unknown heirs of Alley assert title to the land as the heirs of Joseph Wilson. The defendants and the interveners assert and claim title to the land under a judgment rendered in favor of G. W. Outler against the heirs of Joseph Wilson in the district court of McLennan county, Tex., June 5, 1856, divesting the heirs of Wilson of an undivided half interest in the lands, and vesting title thereto in Outler; and also under an execution sale of the interest of the heirs in the land that was sold under execution for costs incurred in the case of Outler vs. Heirs of Joseph Wilson. Outler was the purchaser of the undivided half interest of the Wilson heirs in the land at this execution sale. The defendants and interveners claim under Outler.

The court below instructed the jury as follows: "That, if they believe that the plaintiffs are entitled to inherit the estate of Andrew J. Wilson or Joseph Wilson, then they are instructed that the patent, deeds, and judgment executions and return thereon read in evidence are sufficient to entitle the defendants and the interveners to recover against the plaintiff and the unknown heirs of F. H. Alley," and instructed them to so find.

On the trial below, appellants objected to the introduction in evidence by the interveners and defendants of the judgment rendered in the case of Outler vs. Heirs of Joseph Wilson, and to the execution and return and sheriff's deed executed to Outler, for the reasons: "(1) Because it affirmatively appears from the said record in cause 127 that the district court of McLennan county had no jurisdiction to enter said judgment, for the reason that it appears that the foundation of said suit 127 was for specific performance of a contract, and not a proceeding in rem. (2) Because there was no affidavit made, as shown by said record, to authorize the issuance of citation for publication, as attempted in said cause. (3) Because it appears that the defendants in cause No. 127 were attempted to be cited by publication as unknown nonresident heirs of Joseph Wilson, deceased. (4) Because the said writ of citation for publication was defective, in that it did not give the proper name of the parties to the suit, and because it did not give a brief statement of the cause of action, as required by law; and because said unknown heirs, defendants in cause No. 127, were cited to answer the petition of J. W. Outler, instead of G. W. Outler, who appears to be the judgment creditor in said judgment. (5) Because the district court of McLennan county did not have jurisdiction to render a judgment to enforce a specific performance of a contract to convey land against the minor heirs of a decedent. (6) Because the execution under which the land was sold and the sheriff's deed conveying the land were void, because the judgment under which said execution was issued did not support or authorize the issuance of execution; and because the sale of the land under the writ of execution was made after the return day of the writ, therefore the sale is void." The court overruled these objections, and admitted the instrument in evidence. Giving the charge quoted, and admitting these instruments in evidence, are assigned as errors. This presents the principal questions involved in the case.

In order to ascertain the merits of these assignments it becomes necessary to look into the proceeding had in the case of Outler vs. Heirs of Joseph Wilson. J. W. Outler filed his petition in the district court of McLennan county on the 13th day of March, 1854, wherein he alleged "that Joseph L. Wilson fell at Goliad in 1836, and was thereby entitled to 4,036 acres of land; and that his heir, Joseph Wilson, then a citizen of Alabama, in 1850 entered into a contract with petitioner to go to Texas and procure the lands for said Joseph Wilson; and by the terms of the agreement, for and in consideration of the services to be rendered by petitioner in procuring the lands, etc., he was to have one half of the lands, which were to be conveyed to him by Joseph Wilson. That he came to Texas, and by his efforts procured patents for said lands, and located the same. That before he returned to Alabama, and after he had procured the lands, the said Joseph Wilson died, thereby rendering it impossible to execute him a title." The petition asks for judgment against the heirs of Joseph Wilson for one half of the lands, and that title thereto be decreed in him. The petition describes the survey in controversy as one of the tracts of land that the plaintiff Outler sought to recover a half interest in. June 5, 1856, judgment was rendered in favor of Outler against the heirs of Joseph Wilson, deceased, for one half of the lands. The judgment does not partition the lands. The evidence in the record before us shows with reasonable certainty that the appellants are the surviving heirs of Joseph Wilson, and that at the time the petition in the case of Outler vs. Heirs of Wilson was filed, and at the time the judgment was rendered in that case, the heirs of Wilson were nonresidents of this state, and that at such time Andrew J. Wilson, one of the heirs, was a minor.

The following paper is a part of the record in the case of Outler vs. Heirs of Wilson: "The state of Texas, county of McLennan: This day personally came and appeared before A. J. Evans, clerk of the district court of said county, and says the names of the heirs of Joseph Wilson, deceased, are unknown to affiant. J. R. HARRIS. A. J. EVANS, D. C. McL. Co., Tex." It is contended by ...