Hatch v. De La Garza's Ex'r

• Decision Date: 01 January 1858
• Citation: 22 Tex. 176
• Parties: GEORGE C. HATCH v. DE LA GARZA'S EX'R AND OTHERS.
• Court: Texas Supreme Court

22 Tex. 176

GEORGE C. HATCH

v.DE LA GARZA'S EX'R AND OTHERS.

Supreme Court of Texas.

1858.

Where, in a proceeding commenced in 1839, to foreclose a mortgage upon land, a citation had been returned not served, because the defendant was not found in the county, and at the ensuing term of the court (spring term, 1840), there was an order that the defendant be cited, by publication, to the next term, and at said return time, the defendant failing to appear, the court gave judgment against him; although no citation or writ of publication was found in the record, yet, it being recited in the judgment entry that the publication had been made, according to law and the order of the court, such judgment is not void upon its face, for want of the service which the law prescribed.

There is no error in the refusal of the court to instruct the jury, “that if they believed from the testimony,” a certain fact stated in the charge asked, “they should find a verdict for the plaintiff,” when the evidence did not warrant the assumption of the existence of such fact.

A judgment of a court of competent jurisdiction, which has not been successfully impeached, is conclusive of all matters then in litigation, or which might have been brought in litigation therein, by the defendant, touching the cause of action.

If there had been fraud in the contract, or any invalidity in the cause of action, it should have been set up as a defense, but cannot be made the ground of avoiding or impeaching the judgment, or of a claim for equitable relief, in a collateral proceeding. 4 Tex. 101, 387;18 Tex. 752;28 Tex. 443.

Where a deed for land described the tract sold, by specific metes and bounds, and in the conclusion of such description, added “according to the original deed of grant from the government to Jose Sandoval, and containing one-half league, according to the above named grant,” and there was nothing in the deed, or any fact proven in connection therewith, to show that the vendor represented or sold the land as containing any particular number of acres: Held, that the land was sold by defined and specific boundaries, without any representation as to quantity; and the fact that, upon a survey, it was found to contain only six hundred and nineteen acres, presented no ground upon which the vendee could found a claim for relief. Ante, 133; 13 Tex. 223;29 Tex. 315.

ERROR from Bexar. Tried below before S. G. Newton, Esq., selected as special judge by the parties.

This cause was before the supreme court, at a former term, and will be found reported in 7 Tex. 60; subsequently to which time, the defendant, Garza, died, and James L. Trueheart, his executor, was made a party by an amended petition.

It appeared, from the allegations of the original and amended petitions, that in 1837 the plaintiff, Hatch, purchased of Garza two tracts of land, situate in Bexar county; the first contained one league and a half, for which he paid $2,000, in cash, and executed his note for $2,000 more, with a mortgage upon the land to secure its payment; the second was sold to him as a half league, for which he executed his note for $1,000, with a mortgage upon the land to secure the same; the last mentioned note being payable at the counting room of J. & N. Dick, New Orleans.

Plaintiff alleged, that Garza falsely and fraudulently represented to him, that the first tract of land was free from all incumbrance, and that he had a good and perfect title for the same; when, in fact, as Garza well knew, he had title only to an undivided moiety of the tract, and the other half was the property of Vicente, Rafael, and Carmon de la Garza, the children of the said Garza by Gertrudes Rivas, his first wife; and he also represented, that the second tract contained one-half league, when, as he well knew, the said tract contained only six hundred and nineteen acres; by reason of which representations, the plaintiff was deceived and defrauded, and induced to purchase the said land upon the terms aforesaid.

Plaintiff further averred, that he sent means to San Antonio, to his agents, to pay the larger note, but that they embezzled the same, which he did not discover until afterwards; all which was well known to Garza. He also went to New Orleans, with the means to pay the other note, but that it was not presented at the counting room of J. & N. Dick, at the time of its maturity, nor till after he left the city with his money; whereby he was put to much inconvenience and loss. That afterwards, Garza sued him upon said notes and mortgages, and he voluntarily appeared and acknowledged service, and “moved and obtained, for cause shown, the dismissal of said suits.”

He also averred that shortly afterwards, Garza, who well knew that plaintiff was a citizen of Colorado county (having come to the republic of Texas in 1836, and in March following filed his declaration of citizenship), again attempted to sue him on the same causes of action; and that without obtaining personal service upon him, and without even presuming to aver that he was a non-resident of the country, and without plaintiff's having notice, obtained judgment against him, foreclosing said mortgages. That the said judgments were void, because he had no legal notice, either actual or constructive, of the said suits; but, by means of executions issued on the same, the said lands were sold to Garza; and that afterwards, upon motion of said Garza, without actual or constructive notice to him, the said sales were set aside, and other executions were issued, and the said land again, on the 6th of July, 1841, was sold; when the larger tract was bought by Garza, and the smaller by _____ Riddle, who afterwards conveyed it to the defendant, S. A. Maverick, the attorney of record of Garza in the said suits, and who connived and participated with him in his fraudulent actings and doings about the same. And since that time, the said defendants had had actual possession of the said land, and denied his right to the same, and the purchase money which he originally paid for the larger tract.

That when plaintiff became advised of these facts, he went to San Antonio, from his residence in Colorado county, and employed an attorney in attendance upon the district court of Bexar county, which was then in session, to bring suit for his land aforesaid; but, before his petition could be completed, he and his said attorney, and said district court, were on the 11th of September, 1842, taken prisoners, and carried to Mexico, from which he did not return to his residence in Colorado county, until during the next year, whereby he was prevented from commencing his suit at that time. He alleged that he has been at all times ready to redeem each of the said tracts of land, but had been prevented by the denial of his right by defendants; and by the additional consideration, that the amounts actually due on each of said mortgages, as appeared from what had been stated, was less than had been claimed, and had never been judicially fixed and ascertained, and had been more than paid, by the rents and profits derived by defendants from the said land, since they had had possession of it. He also charged that, since he purchased the said lands, they had greatly increased in value. A rescission of the sales, would enable the defendants to take advantage of their own wrong, and be unjust to him; and he therefore claimed the full benefit of the original purchase, together with the amount due him on account of the rents and profits of the said land, converted to their use; and the damages he had sustained, by reason of the trespasses committed upon the same, after deducting the true amount due upon the said mortgages and notes; and if anything should still be found due from him, he offered to pay the same. He prayed that the mortgages upon the larger tract, to the extent of the community property; and upon the smaller, so far as it extended beyond six hundred and nineteen acres, be declared void, on account of the fraud of Garza in the original sales; and that the judgments foreclosing said mortgages, and all of the proceedings under the same, be declared null and void; and that he might recover the land from defendants: and should it appear that Garza, subsequently to the original sale to the plaintiff, acquired title to the other half of the said larger tract, that he might have judgment for the same.

Truehart, the executor, answered substantially as had been answered by his testator, admitting the original contracts, the foreclosure of the mortgages, and the sales and purchases of the land under them, but alleged that these were all fair. He alleged that Garza's title to the larger tract was good; that the smaller one was sold by metes and bounds, and was not represented as containing a half league, or any particular quantity of land; and expressly denied the charges of fraud and misrepresentation. He admitted that the defendants had been in possession of the land, since the sale under the judgments foreclosing the mortgages; and denied that since that time, the plaintiff had any right to said land; he also admitted that the land had greatly increased in value; but averred that the plaintiff himself rescinded the sale, by a failure and refusal to comply with the terms of his contract, and that thereby Garza was entitled, either to foreclose the mortgages, or claim the absolute title to the land: and, if it should be held that said judgments and sales were null and void, he asked that plaintiff should be held to have abandoned the original contract, by his gross neglect and laches, and failure to comply with its terms. The defendant, Maverick, answered by a general denial.

On the trial, the plaintiff read in evidence, the deed from Garza, for the two tracts of land; the first, purporting to be for a league and a half; the second, describing the land conveyed, as follows, viz.: “Situate in the forks of the river San Antonio and the Salado creek,...