Hodges v. Robbins

• Decision Date: 15 March 1900
• Citation: 56 S.W. 565
• Parties: HODGES et al. v. ROBBINS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 565

HODGES et al. v. ROBBINS et al.¹

Court of Civil Appeals of Texas.

March 15, 1900.

Appeal from district court, Matagorda county; Wells Thompson, Judge.

Action by Lida D. Hodges and J. F. Hodges against F. S. Robbins and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

G. P. Dougherty, for appellants. Bryan & Munson, for appellees.

GARRETT, C. J.

This action was begun in the court below September 17, 1897, by the appellant Lida D. Hodges and her husband, J. F. Hodges, to recover of the appellee F. S. Robbins an undivided one-half of the lower one-fourth of the C. H. Vandeveer league of land, situated in Matagorda county. The other appellees were vouched as warrantors. Appellant Lida D. Hodges is an heir of Eliza Horton, who died intestate January 26, 1881. The only heirs left by Eliza Horton were her son, R. J. Horton, and the appellant, who showed herself entitled to recover the land in controversy unless defeated by the facts put in evidence by the appellee Robbins. These facts tend to establish two defenses, to wit: (1) Title in Robbins through a sale of the land under execution against Eliza Horton in her lifetime, and (2) title by limitation.

1. A judgment was rendered in the county court of Wharton county, Tex., August 4, 1868, as follows: "Baldize Ryman No. 37 R. J. Horton Eliza Horton. This day came the plaintiff, by his attorney, and the defendant, though duly cited, came not, but made default, and it appearing to the court that plaintiff's cause of action is liquidated and proven by note filed, thereupon ordered the clerk to assess the damages, and they are assessed at the sum of six hundred and twenty and 16/100 dollars, with * * *. It is therefore ordered by the court that the plaintiff do have and recover of defendant the sum of six hundred and twenty and 16/100 dollars and all costs of suit. This judgment to bear interest at the rate of ten per cent. per annum until paid, for which execution may issue." In the copy of the judgment as set out in the transcript, "No. 37" appears between "Baldize Ryman" and "R. J. Horton Eliza Horton," but the bill of exceptions reserved to the admission of the judgment in evidence, and in the testimony of the county clerk the style of the case is given as "Baldize Ryman vs. R. J. Horton and Eliza Horton." An alias writ of execution was issued upon this judgment upon February 12, 1869, against R. J. Horton and Eliza Horton in due form addressed to the sheriff of Matagorda county, and the return on the writ shows a levy upon the land in controversy on March 10, 1869, as the property of the defendant Eliza Horton. A writ of venditioni exponas was issued April 26, 1869, to the sheriff of Matagorda county commanding him to sell the land levied upon by virtue of the writ of execution issued February 12, 1869, and the sheriff's return on the writ shows a sale of the land as the property of Eliza Horton on May 4, 1869, by virtue of the writ to M. E. Layton. The sheriff executed a deed conveying the land by virtue of the sale under the ven. ex. to the purchaser. Appellee deraigned title by mesne conveyances from the purchaser at sheriff's sale. M. E. Layton was the wife of Fletcher Layton. She and her husband, immediately after the sale, went into possession of the land, built a dwelling house and other improvements thereon, and occupied it from about June 1, 1869, until 1878, and it was continuously occupied by them and those claiming under them to within probably less than a year of the date of the death of Eliza Horton. It was shown by the evidence of the county clerk of Matagorda county that the papers in the case of Baldize Ryman against R. J. Horton and Eliza Horton had been lost except the alias writ of execution and the writ of venditioni exponas above mentioned, and that the only part of the record in said cause that could be found were the judgment above set out and the two writs. It appeared that a number of papers in cases disposed of in the years 1867, 1868, 1869, and 1870 had been lost.

2. Appellant Lida D. Hodges was born November 26, 1874, and was married to the appellant J. F. Hodges February 20, 1894. As state above, Eliza Horton died January 26, 1881. Layton and wife entered into possession of the land about June 1, 1869, and built a dwelling house thereon, made cow pens, and inclosed a garden. They occupied the land as their home until 1878, when they moved onto another tract, and a man by the name of Herndon moved onto the land in controversy as their tenant until they conveyed it on July 1, 1878, to A. H. and J. E. Pierce. Payment of taxes by the Laytons was shown, but it was not shown that the deed from the sheriff to M. E. Layton was ever recorded in Matagorda county. After the sale by M. E. Layton and her husband to the Pierces, Herndon continued to occupy the land until, as the witness Savage expressed it, "1879 or 1880, or possibly later. I don't know that there was continuous possession of the land during these years, as I was not on the land every year. I don't know what kind of possession there was of the land. I only know there was a house, and also a garden, on the land, and that the Laytons occupied the house until Herndon moved into it." The Pierces sold the land to C. M. T. Robbins August 31, 1882, and she conveyed it to her son, the appellee F. S. Robbins, November 9, 1889. When Mrs. Robbins bought the land, the appellee immediately inclosed it with a good and substantial fence. All taxes were paid on the land from 1869 down to the institution of the suit by the several parties claiming through the sheriff's sale. Appellants contend that the judgment through which appellee Robbins claims title is not a judgment against Eliza Horton, and is void for uncertainty. The caption of the judgment entry may be looked to in order to ascertain who are the parties to the suit, and for and against whom the judgment was rendered. When ambiguous, a judgment must be read in the light of the entire record. Little v. Birdwell, 27 Tex. 688; Dunlap v. Southerlin, 63 Tex. 42; Smith v. Chenault, 48 Tex. 455; Hays v. Yarborough, 21 Tex. 487; Flack v. Andrews, 86 Ala. 395, 5 South. 452; Freem. Judgm. §§ 45, 50, 50a. The papers in the suit of Baldize Ryman against R. J. Horton and Eliza Horton were lost except the two writs of execution under which the land was sold, and parol evidence was admissible to show what the pleadings contained. There was no direct evidence of their contents, but from the conduct of Eliza Horton in permitting the land to be sold and adversely occupied for nearly 12 years prior to her death with no assertion of title by her, there is strong presumptive evidence that she was a party to the suit, and that she knew that judgment had been rendered against her. This, taken in connection with the caption of the judgment, and the facts that the writ of execution issued within a few months after the judgment was rendered, and ran against both R. J. Horton and Eliza Horton, and was levied, as shown by the returns, upon the land of the defendant Eliza Horton, and the ven. ex. showing a sale of the land as the property of Eliza Horton, also the sheriff's deed conveying the land, show with reasonable certainty that the judgment was against both R. J. Horton and Eliza Horton. As Mr. Freeman says, the cases upon the sufficiency of various...