Hutchins v. Lockett

• Citation: 39 Tex. 165
• Parties: W. J. HUTCHINS v. R. W. LOCKETT.
• Decision Date: 01 January 1873
• Court: Supreme Court of Texas

39 Tex. 165

W. J. HUTCHINS

v.R. W. LOCKETT.

Supreme Court of Texas.

1873.

1. All matters of defense must be filed in the due order of pleadings, and that order requires that in all cases matters of law should be pleaded before pleas to the merits.

2. A judgment may be impeached in any proceeding upon the ground of fraud.

3. Where the defendant claimed under a judgment rendered in a suit for specific performance, in which the purchase money tendered into court for two hundred acres of the land sued for had been withdrawn after judgment, held, that withdrawing the money was a fraud upon the judgment, and related back to its rendition, and nullified the whole.

4. A judgment cannot be void in part and good in part; it must be either valid or void in whole; and where fraud attaches to a part only of a judgment, the whole is a nullity.

APPEAL from Johnson. Tried below before the Hon. Charles Soward.

This was an action of trespass to try title, brought in the district court of Johnson county, November, 1870, by W. J. Hutchins against R. W. Lockett, to recover 300 acres of a 1,360??acre tract of land bought by the plaintiff at the assignee's sale of the bankrupt estate of James L. Farquhar. Defendant claimed the 300 acres by purchase from Luke Blevins, who had recovered judgment for the land, in a suit against Farquhar for specific performance.

Blevins in his suit against Farquhar claimed one hundred acres of the land under an agreement that he should have that amount for protecting Farquhar's land from trespassers, and two hundred acres under contract of sale at seventy-five cents per acre.

Blevins brought his suit in April, 1856, and in January, 1860, tendered the purchase money for the two hundred acres into court. At the July term, 1860, Blevins recovered judgment by default for the land, and obtained an order appointing commissioners to make partition.

Afterwards, Farquhar sued out a writ of injunction, which being dissolved in January, 1861, he appealed to the supreme court. Pending the appeal Blevins withdrew the money tendered into court, and in 1868, before the case was finally disposed of, Farquhar went into bankruptcy.

The defendant recovered judgment against the plaintiff dismissing this suit, and plaintiff appealed to the supreme court.

The other facts are sufficiently stated in the opinion of the court.Simpson & Bledsoe, for appellant. The special exceptions of defendant to plaintiff's petition were not filed until after the answer to the merits, and should have been stricken out. Drake v. Brander, 8 Tex. 353. Blevins by withdrawing the purchase money after judgment, perpetrated a fraud, which should vitiate the judgment. Norwood v. Cobb, 15 Tex. 504;Caldwell v. Frame, 32 Tex. 310. The vendee who pays the purchase money succeeds to all the rights of his vendor, and takes whatever title his vendor may have, or subsequently acquire. Mays v. Lewis, 4 Tex. 44; Whitehead v. Foley, 28 Tex.

Chandler, Carleton & Robertson, for appellee. It was the defendant's right to demur and plead to the new matter set up in the amended petition. Speake v. Prewitt, 6 Tex. 256;Williams v. Randon, 10 Tex. 77.

OGDEN, P. J.

The legislature and courts of this state, while attempting to do away with many of the rigorous rules and useless and embarrassing fictions of the common law, have still very wisely attempted strictly to adhere to such rules of pleading and practice as tend directly to the sure and speedy administration of justice. One of those rules which are dictated by statute, and have uniformly been recognized by the courts, requires that all matters of defense must be filed in the due order of pleading, and that order requires that in all cases matters of law should be pleaded before pleas to the merits; and in carrying out this rule we think the court below erred in entertaining exceptions to the petition, after an answer to the merits.

On the sixteenth of August, 1871, the plaintiff by leave of the court filed an amended petition, and on the eighteenth of the same month an answer in the form of a general denial was filed and the cause continued. At the next term defendant filed his exceptions to the original and amended petition, which were sustained by the court, and the cause dismissed, and from this judgment the plaintiff has appealed. We are of the opinion that the court erred in overruling the plaintiff's motion to strike out defendant's general and special exceptions because they were not filed in the due order of pleading.

But if we admit that the error heretofore noticed is insufficient to authorize a reversal of the judgment, we must then look at the plaintiff...