Russell v. Texas & P. Ry. Co.

• Decision Date: 22 October 1887
• Parties: RUSSELL and others v. TEXAS & P. RY CO.
• Court: Texas Supreme Court

5 S.W. 686

RUSSELL and others v. TEXAS & P. RY CO.

Supreme Court of Texas.

October 22, 1887.

Appeal from district court, Marion county; W. P. McLEAN, Judge. Bill to quiet title.

McKay & Todd, for defendants, appellants. F. H. Prendergast, for appellee.

STAYTON, J.

This suit was brought by the Texas & Pacific Railway Company, and by W. T. Walter, and George D. Krumbauer, in the district court for Marion county, against James P. Russell and Robert B. Epperson as executors of the last will of Ben. H. Epperson, deceased, and against Mamie Epperson, widow, Jeannie Ezell, Robert B. Epperson, Shields Epperson, Ben. Epperson, and Jane Rodgers Epperson, children of H. Epperson, the petition alleging that Ben. Epperson and Jane Rodgers Epperson were minors without guardians. The purpose of the suit was to remove cloud from the title to many sections of land situated in Clay, Wilbarger, Baylor, and Demmitt counties. The land was claimed by the Texas & Pacific Railway Company, as the assignee of the Memphis, El Paso & Pacific Railroad Company, and the defendants claim the land from the same common source. Walter and Krumbauer had no interest in the land, other than such as the fact that the land had been mortgaged to them by the Texas & Pacific Railway Company gave. It appears that lien creditors of the Memphis, El Paso & Pacific Railroad Company, in July, 1870, filed against that company a bill in equity in the circuit court of the United States for the Western district of Texas, alleging its insolvency, and praying, among other things, that all of its assets be placed in the hands of a receiver, whose appointment was asked. On July 6, 1870, a receiver was appointed, and all the assets of the corporation were, by an order made in chambers, placed in his possession. The order appointing the receiver prescribed his duties and powers, and, among other things, empowered him to sell, under directions of the court, all the property placed in his possession and custody. The receiver having made a report to the court that appointed him of his acts, the same were approved by an order of date May 29, 1879, which directed the receiver to sell and convey unto the Texas & Pacific Railway Company all the lands in his possession and control, within the state of Texas, at a specified price. This order also directed the receiver to execute deeds for the land to the Texas & Pacific Railway Company without further application to the court; the particular land in controversy to be conveyed to that company when the title to it was made acceptable to the purchasing company. The report of the receiver, on which the order above referred to was made, is not contained in the record, but the order refers to it, and the inference to be drawn from the order is that the report showed an offer or bid of the Texas & Pacific Railway Company for all the land made at a sale formerly ordered. In pursuance of the order, the receiver, on June 27, 1879, conveyed the lands in controversy, with other lands, to the Texas & Pacific Railway Company, and under that deed it now asserts title.

James B. Donoho brought an action in the district court for Lamar county, against the Memphis, El Paso & Pacific Railroad Company, to the July term, 1871, of that court, to recover debts not secured by lien, and in the petition he stated that the assets were in the hands of the receiver appointed by the circuit court of the United States, and prayed that he might be made a defendant. Service appears to have been accepted, and citation and summons waived by an attorney for the Memphis, El Paso & Pacific Railroad Company, and also for the receiver; but the record shows that this was done without authority from the receiver. On August 9, 1871, a judgment by default was rendered in favor of Donoho against the railroad company, on which execution issued as early as May, 1872, under which sales were made through which the defendants assert whatever claim they have. The sheriff's deed to B. H. Epperson, who was the purchaser, bears date July 23, 1873. On April 29, 1880, the executors, Russell and Epperson, and Mamie and E. S. Epperson, filed an answer to the merits, and on January 16, 1883, an agreement was filed by attorneys assuming to represent the defendants and plaintiff, in which it was agreed that all the defendants would answer at the term then pending, and that judgment should be rendered in favor of the plaintiff in accordance with the prayer of the petition; the attorneys assuming to represent the defendants therein declaring that they "now enter appearance for them." On the same day that agreement was filed, a judgment was entered in accordance with it, but, on motion of one of the executors, the judgment was set aside on the next day on the ground that the attorneys had no authority to make the agreement. The executors ceased to act, and George T. Todd was appointed administrator de bonis non, and the latter filed an answer on May 18, 1886. In that answer he urged that the suit should abate, because not brought in the county in which any part of the land was situated. No answer was filed for the two minor children of B. H. Epperson until June 6, 1887, when their mother, as their legal guardian, filed an answer for them, in which she urged the same matters as were urged by the administrator, Todd. The court below held that the pleas to the jurisdiction of the district court for Marion county were insufficient, and refused to abate the suit. This ruling is assigned as error.

Todd was but the representative of the estate of Epperson, and as the executors had pleaded to the merits long before he pleaded matter in abatement, he could not urge any matter which by due course of pleading had been waived; and the same is true as to any of the other of the defendants, who were but the representatives of a deceased defendant, who had waived the right to insist upon such a plea. As the minor defendants could only appear by guardian, it is clear that the agreement of an attorney could not be made to operate as an appearance for them. At the first term at which the minors, or any one in their behalf, filed any plea, in due order of pleading, through their guardian, they urged in abatement the fact that none of the land in controversy was situated in the county in which the suit was brought. The thirteenth subdivision of article 1198, Rev. St., provides that "suits for the recovery of lands or damages thereon, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the community in which the land or a part thereof may lie." This provision of the statute regulates and determines the venue in this case, and the court below should not have proceeded to adjudicate the rights of the parties in Marion county, when any one necessary defendant objected in proper time and manner to a trial of the cause in a county other than that in which...