Mitchell v. Reitz

• Decision Date: 18 December 1924
• Docket Number: (No. 1688.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 269 S.W. 279
• Parties: MITCHELL et al. v. REITZ.
• Court: Texas Court of Appeals

269 S.W. 279

MITCHELL et al. v. REITZ.

(No. 1688.)^*

Court of Civil Appeals of Texas. El Paso.

December 18, 1924.

Rehearing Denied February 19, 1925.

Error from District Court, Pecos County; C. R. Sutton, Judge.

Action by M. J. Reitz against Edwin Mitchell and others. Judgment was entered, granting only part of the relief prayed for, and both parties bring error. Affirmed on rehearing.

See, also, 256 S. W. 697.

Turney, Burges, Culwell, Holliday & Pollard, of El Paso, O. W. Williams and Howell Johnson, both of Fort Stockton, and Wright & Harris and Collins & Jackson, all of San Angelo, for plaintiffs in error.

R. D. Blaydes, of Fort Stockton, Kemp & Nagle, of El Paso, and W. E. Hazard, of Rochester, N. Y., for defendant in error.

WALTHALL, J.

The statement of the nature and result of the suit in plaintiffs in error's brief is substantially correct, and we adopt it, save and except such restatement as we may make as to the state of the proof, which will be made so far as deemed necessary in discussing the several propositions of plaintiffs in error, and defendant in error's cross-assignments of error.

March 17, 1924, M. J. Reitz filed first amended original petition in the Pecos county district court, complaining of Edwin Mitchell, J. W. Grant, F. S. Wilson, D. E. Lindsey, and John O. Weden, and sought to recover certain lands, alleging that the defendants had ousted him from said lands about November, 1920, under certain judgments, orders of sale, executions, and sheriff's sales out of causes Nos. 369 and 386, theretofore tried in the county court of Pecos county, Tex., wherein F. S. Wilson was plaintiff and M. J. Reitz, defendant; that the proceedings in cause No. 369 were void, because the defendant was a nonresident, entered no appearance, filed no answer, and authorized no attorney to appear in his behelf, the judgment being partly in personam, contradictory in its terms, and the premises were sold at a grossly inadequate price. He attacked the procedure in cause No. 386 on the same grounds, and, further, because the indebtedness was the same involved in cause No. 369, failure to file statement of the evidence, lack of notice of sales, insufficiency of the citation, and improper service.

It was also claimed that the defendants had connived, conspired, and colluded among themselves to secure the lands in question at sheriff's sale for a grossly inadequate price the county judge rendering both judgments and having acted as the agent of both Grant and Wilson in purchasing said lands at sheriff's sales; that Reitz had neither actual nor constructive notice of such attachment proceedings until just before the institution of this suit, except as to cause No. 369, in which he had been served with a nonresident's notice.

Plaintiff prayed for title and possession of the lands, for judgment quieting his title, for cancellation of the judgments in causes Nos. 369 and 386 and deeds executed by the sheriff in pursuance therof, as well as outstanding oil and gas leases, and for general and equitable relief.

The first amended original answer of the defendants Grant, Lindsey, and Weden consisted of general denial, plea of not guilty, and special answer, where it was alleged that the lands purchased by Grant at the sheriff's sale were school lands, upon which there was due and owing the state of Texas approximately $4 per acre, and upon which the taxes had become delinquent for the years 1916, 1917, 1918, and 1919, as well as the annual interest due the state of Texas, all of which delinquent taxes and annual interest amounted to approximately $1.50 per acre, which added to the $4 due the state of Texas represented a sum in excess of the actual value of the land; that he was required to pay such delinquent interest and taxes in order to prevent the state of Texas from forfeiting the original sale and canceling all titles to the lands and to prevent the state and county from foreclosing its tax liens thereon; that they purchased the lands as bona fide purchases for value, without any knowledge of the plaintiff's claims and in reliance on their title, paid out and expended the hereinabove mentioned sums of money to protect the same, all of which inure to the benefit of the lands, and would inure to the plaintiff's benefit should he recover the same, wherefore, they prayed that the plaintiff take nothing against them, but that, if he should recover the lands purchased by Grant, proper accounting be made, and the defendants reimbursed for the sums expended for delinquent taxes, interest and overdue interest due the state and lien be fixed to secure the payment thereof.

The first amended original answer of the defendant Edwin Mitchell consisted of an adoption of the first amended original answer of his codefendants Grant, Lindsey, and Weden and of a special plea to the effect that he had acquired title under his codefendant F. S. Wilson at the sheriff's sale mentioned in the plaintiff's petition, for a valuable consideration; that at the time Wilson purchased the lands at such sales the interest due the state of Texas on the deferred payments due on said lands, being something more than $4 per acre, had been delinquent for 1916, 1917, 1918, and 1919, and the school, state, and county taxes for the same years had not been paid; that said lands sold at sheriff's sale were subject to legal charges, for interest and taxes of more than $4.50 per acre on three of the tracts, and more than $4.50 on section 4, the fourth tract, and subject for forfeiture for default in payment of interest, as well as foreclosure of tax liens thereon; that in order to protect the title he was compelled to and did expend something like $1,000 to cover interest due the state and delinquent taxes; that the prices paid for the land at sheriff's sale, when taken in connection with the incumbrances outstanding against the same, were fair and reasonable and approximated the full value thereof.

The defendant F. S. Wilson filed a disclaimer. After all the evidence was in, the defendants filed motions for judgment, all of which were overruled and exception noted. Thereafter, on March 18, 1924, the court entered judgment in favor of the defendants for all lands acquired under sales made in pursuance of the proceedings in the county court case No. 369 and in favor of the plaintiff for all lands attempted to be sold in pursuance of the proceedings in cause No. 386, in the same court, making the plaintiff's title contingent, however, on his reimbursing the defendants Grant and Mitchell for the several sums of money expended by them in the payment of school land interest and state and county taxes; Grant's outlay aggregating $950.20 and Mitchell's $508.25.

In connection with the judgment, and as part thereof, the trial court found that the plaintiff had failed to establish his claim of collusion, conspiracy, and fraud; that, while the proceedings in cause No. 369 were in all respects regular and the purchasers thereunder took good title to the lands sold them, the citation in cause No. 386 and service thereof were both insufficient to confer jurisdiction on the court, and no title to lands could be acquired thereunder.

Opinion.

For brevity we will designate plaintiffs in error as appellants, and defendant in error as appellee.

Appellants J. W. Grant and Edwin Mitchell, each filed a motion for judgment in his favor, the former for two sections of land purchased by him under the foreclosure sale, in cause 386, Wilson v. Reitz, disposed of in the county court, the latter for all of the lands purchased by F. S. Wilson at the execution sale in above-stated cause 386, Wilson v. Reitz; both motions stating that there was no evidence offered that would authorize the setting aside the foreclosure sale under the judgment. Appellants' first proposition claims error in overruling Grant's motion for judgment, and the second proposition claims error in overruling Mitchell's motion for judgment.

The record discloses that in said cause No. 386, F. S. Wilson v. M. J. Reitz, recovery was sought for an indebtedness of $221.20; the citation was by publication; the command in the writ was to summons Reitz by making publication of the citation once each week for four consecutive weeks previous to the return day thereof. Only three publications were made prior to the day upon which Reitz was commanded in the citation to appear and answer to the suit and one publication was made after return day of the citation; that is, the citation by publication in cause No. 386 commanded the sheriff to summon Reitz to appear on the 3d Monday in November, 1919, that being the 17th day of that month. The return on the citation, a printed copy thereof, and the affidavit of the publisher each shows that the publications occurred on October 31, November 7, November 14, and November 21, 1919; the last publication appearing after the county court had convened the November, 1919, term, which the citation was made returnable.

The county court judgment, rendered on May 29, 1920, recites:

"That defendant has been cited to appear and answer herein by citation published [stating the paper]; said citation having been published more than the time required by law before the first day of this term of court."

Article 1874, Rev. Stat., as amended by chapter 109, Acts 36th Leg. (1919) p. 168 (Vernon's Ann. Civ. St. Supp. 1922, art. 1874), applicable here, provides:

That a citation to a nonresident of the state "shall command the officer to summon the defendant by making publication of such citation [stating how and where published], once in each week for four consecutive weeks previous to the return day thereof."

There was no acceptance of service, or entrance of appearance for Reitz in the case, and the jurisdiction of the county court to enter judgment depended solely upon the sufficiency of the publication of the citation as commanded by the writ to require Reitz to appear and answer at the...