Seguin v. Maverick

• Decision Date: 01 January 1859
• Parties: GERTRUDES FLORES Y SEGUIN v. SAMUEL A. MAVERICK.
• Court: Texas Supreme Court

24 Tex. 526

GERTRUDES FLORES Y SEGUIN

v.SAMUEL A. MAVERICK.

Supreme Court of Texas.

1859.

The plaintiff, in order to invalidate a title which she alleges the defendant holds under a judicial sale, must show that the sale or judgment under which it was made, was void.

However erroneous the judgment may be, if it be not void, the title of a purchaser under it is valid.

That the judgment was by default upon an unliquidated demand; that there was no proof that the defendant executed the mortgage; that the mortgaged property was not described in the petition or judgment; that the petition was amended after judgment by default; that the judgment was upon a deed not executed by the defendant, a married woman, as required by law; that defendant did not understand the English language; that the citation was returned by a deputy sheriff, without naming his principal, are not grounds for declaring a judgment void.

If the judgment foreclosing a mortgage were void, because the property was not described, this would not affect the judgment for the debt.

Where the judgment was for the foreclosure of a mortgage and the sale of the premises described in the petition, but the mortgaged property was only described therein by reference to the deed, which was not made a part of it, and the order of sale, after reciting the judgment, directed the sale “of the mortgaged premises according to the description thereunto annexed,” and annexed thereto was a copy apparently of a mortgage deed, it is sufficient to support the purchaser's title. 15 Tex. 354;20 Tex. 303;22 Tex. 479.

The fraudulent acts of the plaintiff will not affect the title of a purchaser under the judgment who is not charged with being a party to, or with knowledge of them. 13 Tex. 598;15 Tex. 368.

The pleadings and practice, either of courts of law or chancery, as known in the remedial jurisprudence of common law countries, are not of obligatory force here, farther than they have been introduced by our statutory provisions.

The decree in the chancery practice of England usually recites the substance of the bill, answer and facts on which it is founded, and on a bill of review the evidence cannot be looked into, to show the decree to be erroneous.

In the practice of the courts of the United States, the decree does not usually contain a statement of facts, but the pleadings, as a part of the record, may be the subject of revision by bill of review.

To maintain a bill of review for errors in law, either in the English or American chancery practice, the error must be apparent upon the face of the decree or pleadings, and the evidence at large cannot be gone into.

A reversal of the decree does not give a rehearing on the merits, but it is annulled, and the plaintiff is without remedy.

This may be convenient in the English practice, where the facts are stated in the decree, but, in our practice, it would often result in irreparable injury, if a bill of review were applicable to all cases.

If the effect of the act of limitations of 1841, were to introduce the bill of review, as known to the chancery practice, it was restricted by the act of 1846 regulating proceedings in the district court, to cases where service is had by publication only.

Though the statute of 1846 uses the term “petition for review,” the remedy afforded is not restricted to a bill of review strictly, as in chancery practice, but it provides for a rehearing, or new trial, upon the merits.

And it was not intended to introduce the remedy by bill of review, for error in law apparent on the face of the decree, as known to chancery practice, but provide a remedy in the nature of a bill of review, in cases where the defendant had not been afforded an opportunity of making his defense.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This suit was brought by the appellant, Gertrudes Flores y Seguin, the wife of John N. Seguin, in her own name, by authority of the court, against Samuel A. Maverick, George T. Howard and Duncan C. Ogden, to try title and recover from Maverick a lot in the city of San Antonio; and to review and annul a judgment recovered against her and her husband, John N. Seguin, by the said Howard and Ogden, foreclosing a mortgage on the said lot (which she alleged was her separate property), which had been purchased by Maverick at a sale made under the said judgment. The said John N. Seguin was also made a party defendant, and fraud and collusion was charged between him and Howard and Ogden, in the execution of the said mortgage, upon which the judgment was rendered; but there was no prayer for relief as to him, and he made no answer to the petition.

The grounds of invalidity alleged against the said judgment by the plaintiff, in her original and different amended petitions, were in substance: that she had no notice of the suit; that the judgment was by default, upon an unliquidated demand; that the judgment was taken without proof that she had executed the mortgage; that the mortgaged property was not described in the judgment or petition; that the petition was amended after a judgment had been taken against her by default; that the deed, upon which the judgment was rendered, was not executed by her, as was required by law to bind the separate property of a married woman; that she did not understand the English language in which the proceedings in said case had been conducted; and that the citation had not been legally served, so as to be binding upon her.

It appeared from the copy of the proceedings in the cause, which was filed as an exhibit to her petition, that the citation to her was executed in conformity with law; but the return was made by the deputy sheriff, without giving the name of his principal.

The defendant Maverick's exceptions, and those of the defendants, Howard and Ogden, to so much of the petition as sought to review and annul the former judgment, were sustained, and as to the other matters, were overruled.

In the petition, in the suit of Howard and Ogden against the plaintiff and her husband, it was alleged, that they had, to secure the debt sued on, “made, executed, and acknowledged a formal deed of conveyance, which was intended, and understood by the parties, as a mortgage deed, conveying certain real estate therein set forth and described, situate,” etc., but there was no description of the property, or anything by which to identify it, except this reference to the deed, and that was not made a part of the petition. Judgment was rendered in favor of the plaintiff in that suit, for the amount of $3,000, “and that the mortgage mentioned in the plaintiff's petition be foreclosed, and the premises therein described, be sold,” etc. The order of sale, after reciting this judgment, proceeded as follows: “These are, therefore, to command you, that of the goods, chattels, and estates, so mortgaged, according to the description hereunto annexed, of said John N. Seguin and Gertrudes Flores y Seguin, you cause to be made, the full amount of this execution,” etc.; and upon the said order of sale was a copy of the mortgage deed. Under this order or execution, the sheriff, without making a levy, but after having had the property duly advertised and appraised, sold it, and the defendant, Maverick, became the purchaser of the lot in controversy in this suit.

There was a verdict and judgment for the defendants; a motion for a new trial was overruled, and the plaintiff appealed.

Dennison & Turner, for the appellant. The first point to which we will direct attention is, can a bill of review be maintained upon the face of the original record of Howard and Ogden v. Seguin and wife?

1. A judgment by default may be reviewed, if there be anything in the record showing the same to be null and erroneous. Richardson v. Ellett, 10 Tex. 190.

2. This gives rise to the question, does the record present any such errors as would have reversed the case upon a writ of error? The record discloses a proceeding under the act of the 5th of February, 1840 (see Hart. Dig. art. 2505), to foreclose a mortgage. The common law was in force at the time, and the act provided a summary manner of foreclosing the mortgage, depriving parties of the ordinary delays in court, in derogation of the common law then in force; and the act, therefore, must receive a strict construction. What are the errors apparent upon the face of the record? The act referred to, provides for service of process as in ordinary cases, provided the defendant be a resident of the county. The petition of Howard and Ogden discloses the fact of the residence of John N. Seguin in Bexar county; yet the same record shows that he was cited by publication.

3. The same act provides that the petition to foreclose “ shall describe the property mortgaged;” but the petition, and the decree rendered thereon, failed to describe any particular specified property.

4. If the instrument purporting to be a copy of the deed of John N. Seguin and wife, found among the papers of the case, but without any file-mark, and without being made an exhibit in, or attached to the original petition of Howard and Ogden, be taken as a part of the record (which we deny), then we say that this deed shows upon its face that it is void as to Mrs. Seguin, because it was not executed and acknowledged, according to the laws then in force in regard to the conveyance of the separate property of the wife. See Hart. Dig. art. 173; Love & Chappell v. McIntyre, 3 Tex. 10. If this unfiled paper can be called in to aid the defective petition and decree, then the record presents such an error as would have reversed the case on appeal, writ of error, or bill of review.

5. Our objections thus far have been based entirely upon the statutes then in force, and which we think clearly obtain in this case, yet, upon general principles, we say, that the decree of foreclosure in the case of Howard and Ogden v. Seguin and wife, is inoperative for the purpose of selling...