Sellers v. Simpson

• Decision Date: 09 January 1909
• Citation: 115 S.W. 888
• Parties: SELLERS v. SIMPSON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 888

SELLERS v. SIMPSON et al.^†

Court of Civil Appeals of Texas.

January 9, 1909.

Rehearing Denied February 6, 1909.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by E. G. Sellers against R. E. Simpson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

R. E. Carswell and Trabue Carswell, for appellant. McMurray & Gettys, for appellees.

DUNKLIN, J.

This is a suit in trespass to try title to recover 640 acres of land in Wise county, being the A. C. H. & B. Survey, abstract No. 23, certificate No. 19. The defendants in the suit were R. E. Simpson, Mrs. P. A. Terrell, Mrs. T. J. Cartwright, J. E. Mosier, and J. W. McNeeley, but as to the last-named defendant plaintiff took a nonsuit. The other defendants, respectively, claimed title to certain portions of the survey, and filed disclaimers as to the rest. Except as to the portions of the survey embraced in their respective disclaimers, they answered by pleas of general denial, not guilty, and 10 years' limitation. From a judgment in favor of the defendants for the respective tracts claimed by each, plaintiff has appealed.

Plaintiff showed a regular chain of title to the land described in his petition from the state of Texas to William Gearhart; the deed to Gearhart being dated October 27, 1893. He also introduced in evidence a judgment rendered in the district court of Wise county foreclosing a lien for taxes in favor of the state on the survey of land in controversy. He also introduced a sheriff's deed to the land in favor of plaintiff showing sale of the land to plaintiff under and by virtue of an order of sale issued on the judgment. The trial was by the court without a jury, and the following findings and conclusions of the court were filed:

"(1) I find there is on record in Wise county, Tex., a regular chain of transfers from the state of Texas to Wm. I. Gearhart, and that at the time the suit was brought for the taxes and at the time the judgment for the taxes (offered in evidence in this cause) was rendered, and at the time this suit was brought, this chain of transfers was on record in Wise county, Tex., and there was nothing offered in this cause tending to show that said Gearhart was dead or that he had ever disposed of said land.

"(2) I find that on the 22d day of October, 1898, that the state of Texas filed suit for recovery of taxes due upon the land herein sued for against the unknown heirs of Wm. I. Gearhart and against the unknown owners of said land; that citation was by publication and was against the unknown heirs of Gearhart and the unknown owners of said land; that on the 8th of December, 1899, judgment was rendered against the unknown heirs of Wm I. Gearhart for the taxes and costs due on said land amounting to $26.25 and costs of suit with foreclosure of lien; that no order was made disposing of the alleged unknown owners of said land.

"(3) That thereafter an order of sale was issued on said judgment, and the land sold and bought by the plaintiff, to whom the sheriff made a deed.

"(4) That at the time of the filing of said tax suit and the rendition of said judgment for taxes all the defendants who plead the statutes of limitations were in the actual visible possession of the parts of said land claimed by them in their several answers, and that none of them were made parties to said suit.

"(5) I find that each and all the defendants who plead the statutes of limitations herein, and those whose estate they have, had been in the peaceable, open, adverse, and continuous possession of the parts of the land claimed by them, respectively, for more than 10 years next before the commencement of this suit, and each is entitled to hold the same under the 10-year statute of limitations.

"As Wm. I. Gearhart appeared from the evidence offered by the plaintiff to be the owner of the land at the time the tax suit and judgment under which the plaintiff claims title were filed and rendered, a judgment against his heirs for the taxes against the land would not bind the said Wm. I. Gearhart, and a sale under said judgment would not carry the title to the land, and for this reason plaintiff cannot recover.

"Second. As the defendants were in the actual and visible possession of the land at the time of the filing of said tax suit, claiming title to the land, they should have been made parties, and, as they were not so made parties, the judgment has no force and effect as to them, and that, therefore, plaintiff showed no title as against their interest, and that, therefore, plaintiff cannot recover.

"Third. As the defendants had had and held peaceable, adverse, and continuous possession of the lands claimed by them, respectively, for more than ten years next before the filing of this suit, claiming title thereto, they acquired title to same and for this reason the plaintiff cannot recover."

As shown by the findings, the court held that the judgment failed to dispose of the alleged unknown owners of the land. In this ruling we think there was error. While the judgment does not in specific terms foreclose the lien against the unknown owners, it does recite that the "defendants" were served, that the attorney appointed to represent them filed answer for the "defendants," and that the court heard the pleadings and evidence, and, after giving personal judgment for the...