Smith v. Taylor

• Decision Date: 01 January 1870
• Citation: 34 Tex. 589
• Parties: E. M. SMITH AND OTHERS v. M. A. TAYLOR.
• Court: Texas Supreme Court

34 Tex. 589

E. M. SMITH AND OTHERS

v.M. A. TAYLOR.

Supreme Court of Texas.

1870.

1. The power of courts to appoint guardians ad litem for infant defendants is discretionary, and, under ordinary circumstances, the exercise of that discretion by a district court will not be revised in this court.

2. The acts of a guardian ad litem, when not impeached for fraud, collusion, or gross misconduct, are binding on the infant parties for whom they are performed.

3. In a suit to cancel a conveyance of land to the defendants, and to quiet plaintiff's title to it, the district court appointed a guardian ad litem for such of the defendants as were minors. The plaintiff recovered judgment for the land and for damages; whereupon an agreement of the counsel representing the plaintiff and the defendants was entered of record in the district court, by which the plaintiff remitted the damages, and in consideration thereof the defendants waived all defects, if any, in the service of the process, and agreed to bring the cause, by writ of error, to the supreme court “on the merits of the respective titles of said parties, plaintiff and defendant.” Held, that this agreement is supported by a valuable consideration, and is binding upon all the parties, so far as their rights are involved in this suit. Held further, that by this agreement all exceptions to the service of process were waived, and all the parties must be regarded as properly before the supreme court, for the purpose of contesting the merits of their respective titles to the land in controversy. And such an agreement would, it seems, even in trespass to try title, confine the contest to such titles as were claimed by the parties litigant; and would exclude mere outstanding titles from consideration.

4. It is assigned as error that the court below admitted a deed to be read as evidence, when it had not been filed and notice given, as required by the statute. But no bill of exceptions was taken in the court below to the admission of the deed. Held, that in this court the necessary filing and notice will be presumed to have been duly given, or else to have been waived. And an objection of this character is waived by the agreement of the parties to bring the cause to this court, for trial upon its merits.

5. A good cause of action is disclosed by a petition which alleges that the plaintiff is the owner of certain land; that the defendants, in fraud of plaintiff's right, claim the land under a certain third person; and that such claim of the defendants is a cloud upon plaintiff's title, to his damage.

6. In an action to quiet title, it is not necessary for the plaintiff to describe with particularity the adverse claim set up by the defendant.

7. The provision in the constitution of the republic of Texas, that “no person's property shall be taken for public use without just compensation,” manifestly intended to reserve to the sovereign power the right to appropriate private property for public use, whenever it might become necessary; but it also guarantied just compensation to the citizen.

8. In condemning and appropriating private property for public use, it is not indispensable that the compensation to the owner should be made instanter. If due provision be made for its future payment, that is sufficient to vest the title in the government.

9. The proceeding provided for by the act of the congress of the republic, of the year 1839, to locate the seat of government, was a proceeding in rem, technically so called. From the decree of the special tribunal created by that act there was no appeal, and it must be held valid and binding against all the world. Such decree was competent evidence against one who was not a party thereto, and who did not claim in privity with the parties.

10. It has been repeatedly decided by this court that, until a formal patent has issued, the government has the right to appropriate land, notwithstanding a location has been made upon it.

11. By the condemnation and appropriation effected under the act of 1839, above referred to, of the land now comprised within the city of Austin, the land was separated from the public domain; and a patent subsequently issued, though upon a location made prior to the condemnation, was issued without authority of law, and vested no rights against purchasers of the city lots from the state.

12. The legislature, not the courts, is the source to which the locator, or his assigns, must apply for relief upon the facts above indicated.

ERROR from Williamson. Tried below before the Hon. E. H. Vontress.

This case involved the validity of the titles to the Austin city lots sold by the state under the condemnation of the site of the city. For all practical purposes the main facts of the case are sufficiently indicated in the opinion of the court.F. W. Chandler, for the plaintiffs in error. The plaintiff, in his petition, alleges that he was the owner of out lot No. 54 in division E. in the city of Austin; that he deraigned his title by patent from the state to him and one J. C. Tannehill, dated thirty-first day of October, 1854, and by a deed from Tannehill to plaintiff, and charges that the defendants pretended to have some sort of a title or claim adverse to his, which they derived through or from one William R. Goucher, or some other person to him unknown, and charges that the said W. R. Goucher never had any right or title to it; that the land, long before the defendants acquired their pretended title, was condemned and set apart for public use by the government of the late republic of Texas, all of which was well known to defendants at and before any pretended right had been acquired by them.

That the defendants set up title in fraud of his rights, and to make their claim a speculation, and oppression to him and others, by forcing him and others to compromises to avoid litigation; that the defendants' pretended claim constituted a cloud upon his title, and greatly depreciated the value of his lot; that by reason of the fraudulent actings of the defendants, he was damaged $10,000, and prayed for service, and for judgment establishing his title, and for costs and damages.

The venue was changed eighteenth of August, 1858. None of the defendants answered in the case. On the twenty-fourth of September, 1858, the plaintiff filed an amended petition by striking out the name of William R. Goucher, and inserting the name of Samuel Goucher; and alleged that by reason of the claim set up by defendants as aforesaid, he was damaged $10,000 in the value of the lot, by being unable to sell the lot of ground for its value. If it was not for the defendants' claim, the lot would then have been reasonably worth $12,000. Immediately upon filing the amended petition, the court appointed a guardian ad litem to represent the minor heirs of L. W. Young, and the parties went to trial instanter.

The first error assigned to the ruling and judgment of the court was upon the demurrer. We think the demurrer should have been sustained, so far as the minors were concerned, since the suit was brought to remove an alleged cloud upon the plaintiff's title, and for damages; but the plaintiff did not allege that either the ancestors of the said minors, their next friend, or guardians, had ever been in possession of the land; or that their ancestors, next friend, guardian or Goucher ever claimed the lands in question; or that they had any paper title on record or elsewhere, under which they claimed it. We are at a loss to see how it was possible for these minors to have beclouded or slandered the plaintiff's title, when it is not alleged that they, their ancestors, next friend, or guardian, had ever had adverse possession of the lands, or were asserting ownership under even a colorable title.

We admit the well-settled doctrine, that has been decided by this court, that the party has the right to bring suit to remove a cloud from his title to land; but we take it, in such a suit, the plaintiff must disclose the title he seeks to annul, or allege that the defendants are in possession, or that they have some evidences of title in writing; and also show to the court that the defendants are capable in law of slandering or beclouding plaintiff's title to the land. We do not think, nor has the plaintiff attempted to show, that infants and minor children are capable in law of such offenses against his rights and title to the land.

And we insist that the plaintiff's petition does not disclose any cause of action even against adults, for the reasons already assigned; for there is no express malice alleged in the petition against any of the defendants in claiming the lot. It is true that he alleges that the defendants knew the land had been condemned for the use of the government, before they acquired their title, and that they set up their title in fraud of his rights, and to make their claim a speculation and oppression to him and others; but he fails to allege any trespass on the part of any one of the defendants, and that is not enough to entitle the plaintiff to recover damages. If it is, then no man is safe in claiming a tract of land, that he may have honestly purchased and paid for. If it should turn out that some one else had a better legal title, he could bring his suit against such purchaser in good faith, for slandering his title, and recover damages. See 1 Burr. 2422; 3 Taunt. C. L.; Smith v. Spooner, 246, in Supreme Court Library; 5 Barb. 297; Baily v. Dean, 2 Greenl. Ev. 428, and authorities cited in each case; 1 Saund. 131. And we refer to the same authorities to show that the petition discloses no cause of action against the defendants, E. M. Smith, S. W. Sims and Mary L. Young, and the verdict and judgment should have been in favor of all the defendants.

The second error is assigned to settle a question of practice that is of vital importance to minors in this state. The law wisely provides for the appointment of a guardian ad...