Read v. Allen

• Decision Date: 31 January 1882
• Docket Number: Case No. 1398.
• Parties: JOHN T. READ v. M. A. R. ALLEN.
• Court: Texas Supreme Court

56 Tex. 176

JOHN T. READ

v.M. A. R. ALLEN.

Case No. 1398.

Supreme Court of Texas.

Jan. 31, 1882.

APPEAL from Houston. Tried below before the Hon. John R. Kennard.

J. R. Burnett, for appellant.

I. The court erred in admitting in evidence, over the objections of appellant, the certified copy of a judgment by default rendered in the United States circuit court at Tyler, in May, 1880, in favor of appellee and against her co-defendant Caffey and others for the John Welsh league of land, embracing the land in controversy, because appellant had no notice of the suit in which said judgment was rendered, and was no party or privy thereto.

II. A judgment by default in an action of trespass to try title, against a tenant in possession, but without notice to the landlord, is not conclusive evidence of an adjudication of the title against the landlord. R. S., art. 4811; Texas Land Co. v. Turman, 53 Tex., 619;Morrison v. Loftin, 44 Tex., 17; see also 44 Tex., 24;Laird v. Winters, 27 Tex., 440;Peck v. Hardy, 20 Tex., 673;Scott v. Rhea, 5 Tex., 260, and S. C., 21 Tex., 708; Wells on Res Adjudicata, pp. 67-69; Freeman on Judgments, secs. 185, 186, 169.

III. The court erred in rendering judgment for appellee for the whole of the land, when she showed no title except to an undivided half interest; and the judgment is unsupported by the evidence.

IV. The judgment is erroneous because appellant showed a superior legal title by limitation, and the judgment is unsupported by the evidence. Stovall v. Carmichael, 52 Tex., 384;Burleson v. Burleson, 28 Tex., 410.

V. The judgment is erroneous because appellant showed peaceable and adverse possession under title for more than ten and twenty years, and appellee's right of entry, if any, was barred, etc.

VI. Under the uncontradicted facts of possession under title, etc., legal presumption will supply the missing link in appellant's title. 2 Wharton on Ev., secs. 1338, 1347; also sec. 1352 and notes.

Nunn & Williams, for appellee.

I. The judgment being against appellant's tenant was, even if not conclusive against appellant, evidence against him of appellee's title, and prima facie evidence thereof Chirac v. Reinecker, 2 Pet., 622; Hunter v. Britts, 3 Campb., 455.

II. The judgment was admissible to show a recovery of the tenant's possession and interest or term in the land, and as thus tending to show appellee's title and right of possession in this suit and to negative that of appellant. Tyler on Eject., 77, 214-16, 682; Freeman on Judg., 300, 301; Marshall v. Shafter, 32 Cal., 176; Herman on Estop., 116.

III. The judgment was an adjudication of appellee's title in her favor against appellant's tenant, and was conclusive against appellant. R. S., arts. 4789, 4790; Hough v. Hammond, 36 Tex., 657;Robbins v. Chicago, 4 Wall., 658; Chicago v. Robbins, 2 Black (U. S.), 418; Boston v. Worthington, 10 Gray, 496;Inhabitants v. Holbrook, 9 Allen, 17; Bigelow on Estop., 47; 1 Greenleaf, 523, 535; Freeman on Judgments, 171; Hunter v. Britts, 3 Campb., 455.

IV. The court did not err in rendering judgment in appellee's favor for the whole land, because appellee failed to show title to any portion of it, and appellant being owner of an undivided half interest, was entitled to the possession of the whole against him. 52 Tex., 389, and authorities there cited; Hardy v. Johnson, 1 Wall., 371;Williams v. Sutton, 43 Cal., 71; Freeman on Judgments, 300; Marshall v. Shafter, 32 Cal., 176.

V. Appellant's possession prior to the suit in the federal court was not sufficient evidence of title on which to recover in this suit against appellee, because adjudged in that suit in her favor to be that of a trespasser, and on that ground recovered by her from his tenant. Williams v. Sutton, 43 Cal., 71;Hardy v. Johnson, 1 Wall., 371; Freeman on Judgments, 300; Marshall v. Shafter, supra.

GOULD, CHIEF JUSTICE.

This is an action of trespass to try title, brought by Read, August 5, 1880, against Mrs. Allen and Joseph Caffey. The petition alleged that Caffey went into possession of the one hundred and sixty and one-half acres of land sued for, as tenant for plaintiff Read for the year 1880; that Mrs. Allen set up a claim to the land, and Caffey, on July 3, 1880, had attorned to her. Caffey disclaimed, except as tenant for Mrs. Allen, and the latter filed only the plea of not guilty. The case was tried without a jury, and judgment was rendered against plaintiff and in favor of Mrs. Allen for the possession of the entire tract of land.

The leading question in the case grows out of the admission in evidence of a certified copy of a judgment by default for the John Welsh league of land, of which the land in controversy was a part, rendered in the United States circuit court at Tyler in May, 1880, in a suit brought by Mrs. Allen, March 25, 1880, against Caffey and numerous other parties defendants, not including, however, plaintiff Read. The petition in that case alleged that Mrs. Allen owned the undivided half of the league; that the parties made defendants were trespassers thereon, and prayed judgment for the title and possession of the league. On May 14th the judgment adduced in evidence shows that the case was dismissed as to many of the defendants, and judgment by default for the recovery of the league rendered against Caffey and others. It appears by bill of exceptions that copies of this judgment, and the petition on which it was based, were offered in evidence “for the purpose of showing that the question of the title to the land in this suit, being a part of the said league, had been adjudicated in said suit against plaintiff, and he was concluded by said judgment, and as evidence of defendant Allen's title to the land against plaintiff.”

Amongst other objections to the admission of this evidence, it was urged that plaintiff was no party or privy to said suit, and it was not shown or offered to be shown that plaintiff had any notice of said suit. The court overruled this objection, and we think it apparent from the bill of exceptions that this judgment by default against Caffey was regarded as conclusively establishing Mrs. Allen's title as against Caffey's landlord, Read, and as authorizing the judgment rendered in this case.

Unless it appears that the “landlord was notified of the pendency of the action, and had an opportunity to defend,” he is not “barred or estopped” by a judgment evicting his tenant. Freeman on Judgments, secs. 185, 169; Wells on Res Adjudicata, secs. 75, 76, 58, and authorities cited by these authors.

Counsel for appellee submit the proposition that “the judgment was an adjudication of appellee's title, in her favor, against appellant's tenant, and was conclusive against appellant,” referring to the statute directing, in the action of trespass to try title, when the premises are occupied, that the person in possession shall be the defendant, and, where that person is a tenant, authorizing the landlord to make himself a party, or to be made a party on motion of the tenant. R. S., arts. 4789, 4790. We see nothing in these provisions, nor in so far as we have examined the...