Loper v. Meshaw Lumber Co.

• Decision Date: 19 March 1937
• Docket Number: No. 1634.,1634.
• Citation: 104 S.W.2d 597
• Parties: LOPER v. MESHAW LUMBER CO. et al.
• Court: Texas Court of Appeals

Page 597

104 S.W.2d 597

LOPER v. MESHAW LUMBER CO. et al.

No. 1634.

Court of Civil Appeals of Texas. Eastland.

March 19, 1937.

Rehearing Denied April 16, 1937.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

Suit in trespass to try title by Cowan Loper against the Meshaw Lumber Company and others. From a judgment in favor of the defendants, the plaintiff appeals.

Affirmed.

Ray H. Odom, of Jacksonville, and Guinn & Guinn, of Rusk, for appellant.

Wm. E. Stone and Box & Box, all of Jacksonville, for appellees.

LESLIE, Chief Justice.

Cowan Loper, as plaintiff, instituted this suit in trespass to try title against the Meshaw Lumber Company, S. J. Jones, and L. D. Woosley to recover title and possession of 400 acres of land known as the James Knox survey in Cherokee county. By trial amendment plaintiff sought partition and division of the property, alleging he was the owner of only an undivided five-sixths thereof, and specifically admitting that the Lumber Company was the owner of the other one-sixth interest.

The defendants (appellees here) answered by general denial, plea of not guilty, and set up title under the five and ten year statute of limitation (Vernon's Ann. Civ.St. arts. 5509, 5510). In the alternative they asked for judgment for valuable and permanent improvements made in good faith.

The trial was before the court without a jury and resulting in a judgment in favor of the defendants for title and possession of the land. The plaintiff appeals, and the parties will be referred to as in the trial court.

The 400 acres in controversy was once owned by T. S. Hatton and wife, Anna Mary Hatton, as community property. The litigants agree they are the common source of title.

Anna Mary Hatton died July 16, 1916. T. S. Hatton, her husband, died January 21, 1924. Three children were born to T. S. Hatton and wife, namely, H. T. Hatton, H. B. Hatton, and Mrs. Irene Howard. These three children survived the mother and father.

The daughter, Mrs. Irene Howard, married John Howard. To her and said husband were born three children, namely, Ingels Howard, born February 10, 1900, Irene Hatton Howard and John Howard, Jr. The father, John Howard, died April 17, 1926.

In May, 1924, Frank L. Devereux was appointed administrator of the estate of T. S. Hatton, deceased. He qualified as such, and in July, 1924, approved a claim of the banking commissioner of Texas against the estate of T. S. Hatton for the sum of $25,000. Nothing further is shown to have been done in the administration of that estate, or by way of disposition of said claim.

January 21, 1921, after the death of the mother, Anna Mary Hatton, and before the death of the father, T. S. Hatton, the daughter, Mrs. Irene Howard, joined by her husband, John Howard, conveyed to B. B. Perkins, by warranty deed, an undivided interest in the said James Knox survey; presumably the one-sixth interest inherited by her in her deceased mother's estate. Said Perkins thereafter, on August 13, 1921, conveyed this "1/6 undivided interest" in the 400-acre tract of land to the Citizens Guaranty State Bank of Rusk for a valuable consideration, etc. At that time he was president of said bank.

November 3, 1924, Perkins & Perkins, attorneys (of which firm B. B. Perkins was a member), instituted suit for the state of Texas to recover the delinquent state and county taxes due on said tract of land, and to foreclose the tax lien securing the same. The defendants named in this suit were F. L. Devereux, administrator of T. S. Hatton, deceased, H. B. Hatton (residence alleged to be unknown), H. T. Hatton (nonresident residing in California), Citizens Guaranty State Bank of Rusk, and J. L. Chapman, banking commissioner. Mrs. Irene Howard was not made a party to this suit, and at that date, November, 1924, she purports to own the one-sixth interest inherited in the estate of her father, who died January 21, 1924. Said tax suit came on for trial December 17, 1924, and was dismissed as to J. L. Chapman, banking commissioner. Judgment was taken establishing taxes amounting to $307.70, costs, etc., with the foreclosure of the lien on said property as against all remaining defendants. Concerning these defendants the judgment recites that Devereux, administrator, H. B. Hatton, and Citizens Guaranty State Bank of Rusk, "although duly and legally personally cited to the present term came not, but wholly made default, and came H. T. Hatton one of the defendants by G. W. Gibson, his attorney heretofore appointed by the court, having been heretofore duly and legally served with citation in this cause by publication, said H. T. Hatton being a non resident of the State, and the court after hearing," etc.; then follows the decree.

At the tax sale under this judgment B. B. Perkins on February 3, 1925, became the purchaser of said 400 acres of land for the amount of the taxes, and he thereafter on February 24, 1925, conveyed the same to the Meshaw Lumber Company, a corporation, for a recited consideration of $3,000, $500 cash and several vendor's lien notes for the balance, one half of which were made payable to H. B. Hatton and the other half to the Citizens Guaranty State Bank of Rusk. As to Perkins, this was a special warranty deed.

The foregoing reflects in part the basis of claim for title by the Meshaw Lumber Company. The plaintiff, Cowan Loper, predicates his claim for title upon the following alleged conveyances:

(1) On May 17, 1934, said Ingels Howard and his mother Irene Howard, a widow, purports to convey the 400 acres of land to Loper for a consideration of $100. This is a warranty deed and conveys the whole tract without limitation as to interest.

(2) June 5, 1934, H. B. Hatton, of Wichita Falls, Tex., quitclaimed his interest in the 400 acres to Cowan Loper for a consideration of $10. This purports to be his one-third interest in the community estate of his deceased father and mother.

(3) October 20, 1934, Ruth Hatton, the widow and sole heir of H. T. Hatton (who died March 1, 1926), conveyed her interest, if any, in the 400 acres of land to H. K. Black, who in turn conveyed the same to plaintiff Loper November 13, 1934. Black appears to have acquired the land for Loper. The suit was filed after the first conveyance of May 17, 1934, and before the last conveyances just stated.

The record reflects that B. B. Perkins, or his firm, was employed to prosecute the delinquent tax suits for said county, among them, the one above mentioned, and that as such he represented the state of Texas; that he bid in the property for such taxes, paying one half the same himself and the other half being paid by the Hattons, or one of them. The sum bid was applied in full satisfaction of the tax lien, etc.

It further appears from the record that, on November 6, 1923, said H. T. Hatton, of California, made a deed purporting to convey to Ingels Howard, along with other tracts of land owned by him, the land in controversy, or his interest therein. This deed was not recorded until April 13, 1926. It was not delivered prior to the death of the grantor, H. T. Hatton, and Ingels Howard was not aware that the deed had been executed until after H. T. Hatton's death, which occurred March 1, 1926, subsequent to the tax title deed to the Lumber Company of date February 25, 1925. Ingels Howard had no actual knowledge of its ever having been put of record.

The appellant presents 68 assignments of error. The record is voluminous and complicated. Counter propositions are practically as numerous. The trial court has made comprehensive findings of fact and conclusions of law. We shall dispose of the appeal upon those particular assignments deemed to be controlling.

We shall first dispose of that group of assignments complaining of the ruling of the trial court in permitting the introduction of the tax title acquired by B. B. Perkins and conveyed by him to the Lumber Company. This attack also presents the contention that the judgment in the tax suit was void. It is claimed to be void for the following reasons: (1) Because there was no affidavit of the county attorney, or attorney bringing the suit for the taxes, showing that H. T. Hatton was a nonresident of this state such as would authorize the clerk to issue a citation by publication. That such affidavit is a prerequisite to jurisdiction of the court and a valid judgment. (2) Because the citation was defective inasmuch as H. T. Hatton was attempted to be served by publication and one notice was published one time for each of three consecutive weeks, instead of one time each week for four consecutive weeks. (3) Because all parties who owned an interest in the land were not made parties defendant in the tax suit; this contention having special reference to Mrs. Irene Howard, who purported to own a one-sixth interest in the property inherited from her deceased father. (4) That the citation served upon the Citizens Guaranty State Bank of Rusk, Tex., as defendant, was void, rendering the judgment likewise, because the citation required the bank to appear at an impossible date.

Contentions 1 and 2 above must be overruled because each involves a simple collateral attack on the judgment of the court of general jurisdiction. As pointed out in a previous part of this opinion, the judgment which appellant would attack recites due and legal service. To rebut this recital in the judgment would involve the contradiction of the judgment record, and the verity of such judgment may not thus be challenged in a collateral attack. Treadway v. Eastburn, 57 Tex. 209; Iiams v. Root et al., 22 Tex.Civ.App. 413, 55 S. W. 411 (writ ref.); Stoneman v. Bilby, 43 Tex.Civ.App. 293, 96 S.W. 50, 52 (writ ref.); Mote v. Thompson (Tex.Civ.App.) 156 S.W. 1105 (writ ref.); Borden v. Patterson, 51 Tex.Civ.App. 173, 111 S.W. 182; Earnest v. Glaser, 32 Tex.Civ.App. 378, 74 S.W. 605; Fowler v. Simpson, 79 Tex. 611, 15 S.W. 682, 23 Am.St.Rep. 370; Jones v. City of Jefferson, 66...