Heidenheimer v. Loring

• Decision Date: 29 March 1894
• Citation: 26 S.W. 99
• Parties: HEIDENHEIMER et al. v. LORING. LORING et al. v. HEIDENHEIMER et al.
• Court: Texas Court of Appeals

26 S.W. 99

HEIDENHEIMER et al. v. LORING.

LORING et al. v. HEIDENHEIMER et al.

Court of Civil Appeals of Texas.

March 29, 1894.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Trespass to try title by Phoebe F. Loring, surviving wife of Barnabus T. Loring, and others, against Abraham Heidenheimer individually, and Abraham Heidenheimer and Meyer Bauman as executors of the last will and testament of Samson Heidenheimer. From a judgment for plaintiff Phoebe F. Loring, the executors of Samson Heidenheimer appeal, and from a judgment for defendants, Fannie E. Loring, R. F. Loring, Ellen J. Dike, and H. P. Loring appeal. Entire judgment reversed.

This suit was brought on April 23, 1891, in the district court of Galveston county, by Phoebe F. Loring, as the surviving wife of Barnabus T. Loring, deceased, and his children, Fannie E. Loring, Richard F. Loring, Ellen J. Dike, and Alden P. Loring, against Abraham Heidenheimer individually, and Meyer Bauman and Abraham Heidenheimer as executors of the last will of Samson Heidenheimer, deceased, for the recovery of lots 8 and 9, block 256, in the city of Galveston, and for damages; and to cancel and annul a judgment obtained by Samson Heidenheimer in the district court of Galveston county, on February 18, 1884, against the unknown heirs of Barnabus T. Loring, in which a lien was foreclosed on said property to satisfy said judgment, and under which the said property was sold and bought in for the use of said Samson Heidenheimer, and afterwards conveyed by him to the defendant Abraham Heidenheimer. The petition contained the usual allegations in form of action of trespass to try title. Plaintiffs also alleged that the defendant Abraham Heidenheimer, and those under whom he derived and asserted his pretended title to the said lots, claimed the same by virtue of a pretended judgment and foreclosure sale of a pretended lien in a suit in the district court of Galveston county, numbered on the docket of said court 11,461, wherein Samson Heidenheimer was plaintiff and the unknown heirs of Barnabus T. Loring were defendants. A copy of the entire record in said suit was attached to the petition in this case as an exhibit. It purported to be for the foreclosure of an equitable lien on the property in controversy for money advanced by Samson Heidenheimer for the payment of taxes and insurance thereon. Citation to the unknown heirs of Barnabus T. Loring was made by publication, and judgment was rendered in said cause on February 18, 1884, against the unknown heirs of Barnabus T. Loring for the sum of $718.66, with foreclosure of a mortgage lien on the premises for said amount. The judgment recited that the defendants had been duly served and cited, according to law, by publication. It was alleged that Samson Heidenheimer died February 22, 1891, and that he left a will, etc. Plaintiffs averred that the said judgment was null and void, because the plaintiffs against whom the same was rendered were nonresidents of the state of Texas at the time Samson Heidenheimer brought said suit, and continuously so remained; that no legal citation ever issued in said cause, and plaintiffs had no knowledge or notice of such suit, and did not appear therein, neither in person nor by counsel. They alleged that the affidavit of the said Heidenheimer for service by publication was false, and that the attempt to claim an equitable lien on said property was a fraud practiced by said Heidenheimer upon the jurisdiction of the court; that he had no lien, equitable or otherwise, upon said property, and that the said claim upon which said suit was based was fraudulent and fictitious, etc. That sometime in July, 1872, the said Barnabus T. Loring, the deceased ancestor of plaintiffs, other than the said Phoebe F. Loring, who is the surviving wife of the said Barnabus T. Loring, appointed and selected the firm of Heidenheimer Bros., composed at that time of Samson Heidenheimer, Isaac Heidenheimer, and the defendant Abraham Heidenheimer, his agents, and delivered to them said property, to be rented and managed for the use and benefit of the said Loring; that in March, 1881, the said Barnabus T. Loring departed this life; that the said Samson Heidenheimer had had the use and occupation of said property since about May 7, 1884 (the date of the sale under the foreclosure), until August 14, 1890 (date of sale from Samson to Abe Heidenheimer), and had never accounted for the rents; that it was true that the firm of Heidenheimer Bros., as the agents of said Barnabus T. Loring, had paid certain taxes and insurance on account of said property, but they had paid it out of rents and revenues derived and collected from said property. They denied any indebtedness whatever to the said Samson Heidenheimer, and that he had any equitable mortgage or lien on said property, as alleged by him, and charged that said judgment was obtained by the fraud and false swearing of the said Samson Heidenheimer, and that it was rendered upon false and perjured testimony; that the citation was procured by him to be published in a newspaper of very little circulation, so as to conceal from the plaintiffs the fact that suit had been instituted. Plaintiffs alleged that the pretended foreclosure sale was fraudulent and void; that the said Samson Heidenheimer had one J. W. Frank, an employe, to pretend to purchase said property at said sale, and that he purchased the same for the grossly inadequate sum of less than one-fifth of its value; that the said Samson Heidenheimer, who before said sale was in possession of said property as one of plaintiffs' agents, remained in possession thereof after the sale, renting and deriving revenue therefrom, etc.; that on September 6, 1884, he required the said Frank to execute and deliver to him a special warranty deed for said property, which she did not place of record until February 7, 1890; that the pretended purchase by the said J. W. Frank was part and parcel of a scheme and fraudulent device of the said Samson Heidenheimer to fraudulently acquire title to the property of plaintiffs. They averred that the said judgment was rendered against them without service of process, actual or otherwise, and by means of the fraud and fraudulent acts of the said Samson Heidenheimer, as set out, without the knowledge or consent of plaintiffs; and that plaintiffs did not know of the fraud that had been perpetrated upon them by the said Samson Heidenheimer in fraudulently procuring said fraudulent judgment, and the sale of their property thereunder, until in the month of February, 1891; and that they could not have discovered any sooner, by the use of reasonable diligence, the said fraudulent acts; that the said Abraham Heidenheimer had full knowledge of all of said acts, and colluded and participated in the same with the said Samson Heidenheimer, etc. Plaintiffs prayed for judgment annulling, vacating, and setting aside the pretended judgment and sale of their property thereunder, and a judgment against the said Abraham Heidenheimer and Meyer Bauman, as executors of the estate of Samson Heidenheimer, deceased, for the debt, damages, interest, and costs, and against the defendant Abraham Heidenheimer for the restitution of the premises, etc. On June 5, 1891, Abe Heidenheimer, in his individual capacity, filed a demurrer and plea of not guilty, and impleaded the executors of the estate of Samson Heidenheimer on the warranty of their testator. On February 24, 1892, the executors appeared, and filed exceptions to the plaintiffs' petition, a general denial, plea of not guilty, and pleaded that the attempt to vacate the judgment above mentioned was barred by the two-years statutes relating to bills of review, and also by the four-years statutes of limitation; also, the two and four years statutes of limitation to the claim for rents, issues, and profits for a period ending two years before the filing of this suit; also, three and five years statutes of limitation, improvements in good faith, and a general denial as against Abraham Heidenheimer on the warranty. On March 22, 1892, plaintiffs filed their first supplemental petition, excepting to the defendants' answers, denying the averments therein contained, and the said Ellen J. Dike pleaded coverture in response to the plea of limitation. On April 13, 1892, the exceptions of the defendants as to the sufficiency of the petition to impeach and vacate the judgment in No. 11,461, Samson Heidenheimer v. The Unknown Heirs of Barnabus T. Loring, for the alleged want of sufficient legal service of citation by publication therein, and in so far as they question the petition in making the defendant Abe Heidenheimer a party to the suit to impeach and vacate said judgment for the want of legal service of citation by publication therein, were overruled. On March 7, 1893, the defendant A. Heidenheimer, in his individual right, filed his first amended original answer, repeating his former pleadings. The court overruled plaintiffs' exceptions and demurrers to defendants' answer, and the cause went to trial, resulting in a verdict and judgment that the plaintiffs Fannie E. Loring, R. F. Loring, Ellen J. Dike, and A. P. Loring take nothing by their suit, and that Phoebe F. Loring should recover of the defendant Abe Heidenheimer an undivided one-half interest in the property in controversy, and damages to the extent of $1,200, and that the defendant have judgment against the executors of the estate of Samson Heidenheimer on the warranty for $11,200. Abe Heidenheimer does not appeal. The executors of ...