Heirs of Brown v. Brown

• Decision Date: 05 February 1884
• Docket Number: Case No. 1732.
• Citation: 61 Tex. 45
• Court: Texas Supreme Court
• Parties: HEIRS OF D. M. BROWN v. MARY E. BROWN.

61 Tex. 45

HEIRS OF D. M. BROWN

v.MARY E. BROWN.

Case No. 1732.

Supreme Court of Texas.

Feb. 5, 1884.

APPEAL from Navarro. Tried below before the Hon. D. M. Prendergast, special judge.

On July 22, 1882, appellant brought this suit against appellee to vacate and annul a judgment of partition, in a suit of D. M. Brown against appellants, rendered May, 1877. The judgment, it is claimed, was procured by and through the fraud of D. M. Brown, deceased.

D. M. and L. A. Brown, the father and mother of some of the appellees, and the grandparents of the others, were married in 1840. L. A. Brown died in 1871, and D. M. married appellee, Mary E. Brown, in October, 1872.

It is alleged that in October, 1865, D. M. Brown, for a valuable consideration, executed and delivered a deed to said L. A. Brown, conveying a large amount of real and personal estate to her, describing it, including in the land conveyed two surveys, the Charity Saunders and the Del Toro, in Navarro county, and two tracts, the Wm. Oakley and McWhorter, in Freestone county; that on the death of said Lavinia, appellants being minors, said D. M. Brown fraudulently concealed and secreted the deed, which had never been put on record, and kept them in ignorance of it; that Lavinia died intestate, and no administration was had of her estate; that D. M. Brown acted toward the property as his own, sold off large portions of it, and reinvested in other property, and plaintiffs (appellants) were kept in complete ignorance of their rights and the fraud that had been practiced on them; that in April, 1877, D. M. Brown brought suit against plaintiffs (appellants) in the district court of Navarro county to partition and divide the four surveys of land, the Charity Saunders and the Del Toro, in Navarro, and the Oakley and McWhorter, in Freestone, between himself and the plaintiffs, which land he alleged was the community property and all the community property of himself and his wife, Lavinia Ann Brown, mother of plaintiffs. The appellants, relying on statements of said Brown, made no defense to the suit, and a final judgment was rendered in May, 1877, dividing the land; that said D. M. Brown died in 1879, intestate; that from the time of the judgment until August, 1880, appellants were ignorant of the existence of the deed; that at the time of the judgment Levi Brown, Nancy Ann Bean and the Landingham children were minors; that, in fact, the property divided and vested in D. M. Brown by the judgment of May, 1877, belonged to appellants; that after the death of Brown, in August, 1880, in looking amongst their father's papers, appellants found the deed carefully secreted and put away; that the deed was proved up and put on record, and plaintiffs at once ignored and repudiated all title to the lands vested in them by the judgment, and had been in possession of and claiming the same under the deed since, and they prayed that the judgment of May, 1877, be set aside, annulled and held for naught, etc. Appellants, in their trial amendment, after alleging facts set up in original petition, alleged further that at the time of the death of their mother, Lavinia Ann Brown, in 1871, all of the appellants were minors except D. J. Brown, and that the Landingham children were still minors. (The father of the children, viz., J. L. Landingham, was one of the appellants in the case.) In addition it alleged that at the time the partition suit was brought in 1877, the appellant, C. N. Brown, was informed of the existence of the old deed, dated October, 1865, and being put on inquiry of the existence of said deed, he sent the appellant, J. H. Landingham, to inquire of D. M. Brown, and afterwards inquired of his father himself, who informed him “said deed had been made, but that it was never delivered, that it was not worth a baubee, and that it had been destroyed;” that said C. N. Brown did not inquire further, but, relying on the truth of the statement, did not find out that the same was false until the deed was discovered as before set out, and prayed as in original petition.

The appellee filed general and special exceptions, etc., and a general denial to both of plaintiff's petitions. The cause was tried first on exceptions to the original petition, and they being sustained, plaintiff took leave and filed a trial amendment, to which exceptions were sustained, and, appellants declining to amend further, judgment was rendered for appellee.

The points relied upon for reversal appear in the opinion.

Simpkins, Simpkins & Neblett, for appellants, cited: Smith v. Talbot, 18 Tex., 774;Smith v. Fly, 24 Tex., 345;Munson v. Hallowell, 26 Tex., 475;Carlisle v. Hart, 27 Tex., 350;Bremond v. McLean, 45 Tex., 18;Ransom v. Bearden, 50 Tex., 121;Connolly v. Hammond, 51 Tex., 647;Kleinecke v. Woodward, 42 Tex., 311;Ramirez v. McClane, 50 Tex., 598;Murchison v. White, 54 Tex., 78;McAnear v. Epperson, Id., 225;Stovall v. Carmichael, 52 Tex., 383;Flagg v. Mann, 2 Sumn., 486; McFarland v. Stone, 17 Vernon, 175; Watson v. Wells, 5 Conn., 468.

Read & Read, for appellee, cited: Murchison v. White, 54 Tex., 78;McAnear v. Epperson, Id., 225;Kleinecke v. Woodward, 42 Tex., 311;Ramirez v. McClane, 50 Tex., 598; Sayles' Pleading, secs. 85 and 88; Snoddy v. Cage, 5 Tex., 106;Alston v. Richardson, 51 Tex., 6;Smith v. Fly, 24 Tex., 345;Cannon v. Hemphill, 7 Tex., 184;Hollis v. Dashiell, 52 Tex., 187;Carlisle v. Hart, 27 Tex., 350;Liddell v. Crane, 53 Tex., 549. Admission by one co-tenant binds all. Freeman on Co-tenancy, see. 169; Abbott's Trial Evidence, p. 188, clause 6 and note 10. Notice to husband of fraud is notice to wife. Wade on Notice, p. 310, sec. 679, note 1, cases cited; 39 Conn., 238; 53 Ala., 162; 10 Tex., 252;27 Tex., 352;51 Tex., 648;45 Tex., 18.

WATTS, J. COM. APP.

This is a direct proceeding to vacate and annul a judgment of partition, on the ground that it was obtained by fraud. In the court below exceptions were sustained to the petition and trial amendment, and the cause was dismissed.

The objections as presented by the exceptions were these: That the suit was brought more than two years after the judgment was rendered, and hence came too late; that appellants did not sufficiently show but that by reasonable diligence they might have discovered the fraud prior to the rendition of the judgment, or at least long before the time they claimed to have discovered the same; and that a portion of the appellants had knowledge of such facts as put them upon inquiry before the rendition of the judgment sought to be annulled.

This proceeding is in the nature of a bill of review to vacate a judgment rendered upon service by publication, and, in analogy to the statute regulating that proceeding, must generally be instituted within two years from the rendition of the judgment. Weaver v. Shaw, 5 Tex., 286.

But certain reasons are alleged in the petition, by which the delay in bringing the suit is sought to be excused. It is alleged that certain of the appellants who were parties to the partition suit were minors, and were represented by guardian ad litem, and were...