Harn v. Phelps

• Decision Date: 05 March 1886
• Docket Number: Case No. 2209
• Parties: M. A. HARN ET AL. v. G. N. PHELPS ET AL.
• Court: Texas Supreme Court

65 Tex. 592

M. A. HARN ET AL.

v.G. N. PHELPS ET AL.

Case No. 2209

Supreme Court of Texas.

Mar. 5, 1886.

ERROR from Harris. Tried below before the Hon. James Masterson.

In 1882, M. A. Harn, joined by her husband W. T. D. Harn, who are plaintiffs in error herein, instituted suit in the district court of Harris county, against W. F. Duer, P. C. Duer, G. N. Phelps and his wife C. D. Phelps, for a one-seventh interest in the estate of Mary S. Duer and C. F. Duer, and for partition. The cause was tried May 2, 1884, and a judgment rendered, awarding to M. A. Harn a one-seventh interest in these estates, and to G. N. and C. D. Phelps the remaining six-sevenths, and ordering partition of the lands designated in the decree and described in plaintiffs' petition herein. That cause was numbered 10,981. The commissioners appointed in number 10,981 to partition the property, made their report May 12, 1884, and on the same day that report was made the final judgment of the court, adjudging in severalty to plaintiff M. A. Harn, the one-seventh set over to her by the commissioners, and to defendants in error, G. N. Phelps and C. D. Phelps, the six-sevenths set over to them by the commissioners.

On September 9, 1885, plaintiffs in error filed this suit in the district court of Harris county, against W. F. Duer, P. C. Duer, G. N. Phelps and C. D. Phelps, but, before hearing, dismissed as to W. F. Duer and P. C. Duer, they having no interest in the subject-matter of the suit. Plaintiffs' first amended petition set out substantially the proceedings in cause 10,981, and set out fully the judgment rendered therein by the court. It also set out the report of the commissioners for partition, and the court's confirmation of the report.

The petition alleged, that about one-third of the lands apportioned by the commissioners to M. Harn, had been sold for taxes, and was encumbered by tax titles by the sufferance of defendants, or had been sold under execution against P. C. Duer, long prior to the rendition of the judgment in cause No. 10,981, and that all of the lands of the estates of M. S. and C. F. Duer had been in the exclusive possession of the defendants in error up to the date of that judgment; and charged that prior to the judgment and partition in cause No. 10,981, the defendants well knew the incumbered condition of the lands apportioned to M. A. Harn, and fraudulently contrived, by the aid of one T. E. Conn, who was plaintiffs' attorney in the suit, to deceive the commissioners, and did induce them to set apart to her these incumbered lands, in fraud of her rights.

The petition further alleged that the amount of taxes for which the lands set apart to plaintiff had been sold amounted to $______, and that the plaintiffs knew nothing of the condition of these lands, and had no means of knowing it, until it was too late to redeem them. It also alleged that one hundred acres of the land ordered by the court, in cause No. 10,981, partitioned amongst the parties thereto, were never, in fact, partitioned by the commissioners; and that the value of the lands set apart to M. A. Harn by the commissioners in their report, and by the decree of the court confirming the same, was $2,556, whereas, the value of those set apart to the defendants was $28,773.

The petition further alleged, that, before and at the time the commissioners' report in cause No. 10,981, and the decree confirmatory thereof, were made, the plaintiffs were residents of McLennan county, and had directed T. E. Conn, their attorney in the cause, to object to any report of partition at that term of court, and by no means to consent, because the lands were so widely scattered, and were possibly in such condition that a safe and correct partition could not be made in so short a time; that the defendants well knew that plaintiffs had so instructed their attorney, yet they fraudulently practiced on him and induced and procured him to consent to the partition made, and to make no objection to the report when presented to the court for confirmation, all which plaintiffs' attorney, T. E. Conn, did in violation of their instructions and in betrayal of their rights.

The petition averred that plaintiffs were very impecunious, being unable to earn more than was necessary to support their family, which was large, and were possessed of no resources other than the interest involved; and that, by reason of their poverty and the heavy expense necessary to acquire the information therein set out, plaintiffs had been unable to present their bills in court earlier, and, for the same reason, had been unable to present a showing for setting aside the decree confirming the commissioners' report at the term to which it was returned. The prayer of the petition was, that so much of the decree in cause No. 10,981 as confirmed the report be set aside, and a new partition ordered, and for any other relief which the court might feel warranted, from the facts, in giving.

The defendants demurred to the petition, on the grounds that it showed no equity, and was not supported by affidavit of the truth of the matters alleged. The plaintiffs declined to amend further than to swear to their petition. The court sustained the demurrer and dismissed the petition; to which ruling plaintiffs excepted, and have brought the cause to this court by writ of error.

D. H. Hardy, for plaintiffs in error, on the questions discussed in the opinion, cited. Jewett v. Scott, 19 Tex. 569; Ross v. Armstrong, 25 Tex. Sup. 372; Patterson v. Lanning, 10 Watts 135; Sawyers v. Cator, 8 Hump. 256; Manning v. Horr, 18 Ia. 117;Boyd v. Doty, 8 Ind. 373;Guideci v. Boots, 42 Cal. 452; George's Appeal, 12 Penn. St. 260; Douglass v. Ville, 3 Sanf. Ch 439; Story's Eq. Jur., sec. 658; Freeman on Coten. and Part. 510; Ib., sec. 533, p. 643; Endicott v. Penny, 14 Sm. & M. 144; Cayce v. Powell, 20 Tex. 772;Wampler v. Wampler, 30 Gratt. 454;Hardy v. DeLeon, 5 Tex. 247;Holman v. Criswill, 15 Tex. 397;Overton v. Blum, 50 Tex. 423;Plummer v. Power, 29 Tex. 14;Johnson v. Templeton, 60 Tex. 238;Goss v. McClaren, 17 Tex. 107;Fisk v. Miller, 20 Tex. 578;Burnly v. Rice, 21 Tex. 180. Nevins v. McKee, 61 Tex. 412; Morris v. Edwards, 4 Tex. Law Rev., vol. 5, p. 240; Fletcher v. Warren, 18 Vt. 45; Floyd v. Jayne, 6 Johns., Ch. 479; Graham v. Stagg, 2 Paige, 321;Vilas v. Jones, 1 N. Y. 274;Vaughn v. Johnson, 1 Stockton 173;Meem v. Rucker, 10 Gratt. 506;Belamy v. Woodson, 4 Ga. 175;Conway v. Ellison, 14 Ark. 360;Thompson v. Meek, 3 Sneed 271;Smith v. Allen, 63 Ill. 474;Rupertsbergur v. Clark, 53 Md. 402;Buchanan v. Sterling, 63 Ga. 228;Corolus v. Koch, 72 Mo. 645;Devinney v. Mann, 24 Kans. 682;Wilson v. Coolidge, 42 Mich. 112; Hannan v. Maxwell, 31 N. J., Eq. 318; Earl v. Matheney, 60 Ind. 202,Kern v. Strausberger, 71 Ill. 413;Enquirer v. Robinson, 24 Gratt. 548; Pomeroy's Eq. Jur. 423; Ib. 871; Ib. 1365; Ib. 1376; Ib. 914; Ib 1364; Denison v. League, 16 Tex. 406, 407;Hipp v. Huckett, 4 Tex. 23;Hardy v. DeLeon, 5 Tex. 246;Burnley v. Cook, 13 Tex. 591;Ware v. Bennett, 18 Tex. 807;Smith v. Clopton, 4 Tex. 113;Mitchell v. Shepherd, 13 Tex. 488, 489; Perkins' Daniels' Ch. Pr. 435.

T. S. Reese, for defendants in error, that, in a partition of a large number of distinct tracts of land and a failure of title to some of the tracts allotted to one of the parties, the proper remedy is a suit against the other parties for contribution upon the implied warranty, and not a suit to set aside the entire partition, cited: Ross v. Armstrong, 25 Tex. Sup. 372; Sawyers v. Cator, 8 Humph. 256; Freeman on Coten. and Part., sec. 533.

That if appellants were entitled to set aside the partition for breach of implied warranty of title to some of the tracts of land allotted to them, the allegations of the petition were insufficient for that purpose, in that it is not alleged that they had been evicted, or that the adverse titles created by the tax and the execution sales were valid or superior to their own, he cited: Smith v. Fly, 24 Tex. 353; Rawle on Covenants for Tittle, 148-150; Moore v. Vail, 17 Ill. 190.

That the allegations of the petition are insufficient to justify the court in setting aside its own decree, solemnly made and entered more than a year before the filing of this suit, he cited: Goss v. McClaren, 17 Tex. 107;Vardeman v. Edwards, 21 Tex. 737;Johnson v. Templeton, 60 Tex. 239; Nevins v. McKee, 61 Tex. 411; Overton v. Blum, 50 Tex. 417; Freeman on Judg., secs. 112, 500.

STAYTON, ASSOCIATE JUSTICE.

This action was brought on November 17, 1885, to set aside a judgment rendered on May 12, 1884, in a suit in which the plaintiffs in this case were plaintiffs. The former suit was brought to recover one-seventh part of many small tracts of land, and to have partition thereof; and it resulted in a partition of all the land, through which what was reported by commissioners duly appointed by the court to be one-seventh in value of the whole, was set apart to Mrs. Harn by final judgment rendered on May 12, 1884. She now seeks to set that judgment aside on severa?? grounds:

1. It is claimed that the partition was an unfair one.

2. That her attorney wrongfully consented to the decreee of partition at the term at which it was made, when she had expressly directed him to resist any final decree of partition at that term.

3. That title to some of the tracts of land, which were set apart to her, were at the time clouded by tax titles, or lost by sale under execution, which was unknown to her, but known to the other parties to the suit.

The reasons for not asking the court to set aside the decree now complained of, at the term at which it was entered, and for delaying action so long, is thus fairly stated in brief of counsel for appellants:

“The petition avers that plaintiffs are very impecunious, being able to earn no more by their labor than is necessary to support a large family, and have no resources other than the interest of M. A. Harn, involved herein; and by...