Snell v. Knowles

Decision Date24 July 1935
Docket NumberNo. 4639.,4639.
Citation87 S.W.2d 871
PartiesSNELL et al. v. KNOWLES et al.
CourtTexas Court of Appeals

J. R. Hill, Geo. G. Clough, M. E. Clough, and Jno. T. Gano, all of Houston, and Tom L. Sessions, of Dallas, for plaintiffs in error.

Edwin Lacy, of Longview, Thompson, Mitchell, Thompson & Young, and P. G. McElwee, all of St. Louis, Mo., Campbell & Leak and Lee, Porter & Latham, all of Longview, Pritchett Harvey, of Houston, and Wm. Hodges, of Texarkana, for defendants in error.

JOHNSON, Chief Justice.

This suit is one in trespass to try title and to cancel a judgment. The land consists of 65 acres of a 78-acre tract, a part of the Allen Norris survey in Gregg county. It was formerly owned by John Hughey, who, it is agreed, was the common source of title. It was conveyed by John Hughey to Richard Fortson and his wife, Lizzie Fortson, on December 8, 1900. Lizzie Fortson died intestate in 1911, leaving four children, Marshall Fortson, Frank Fortson, Ethel Fortson, and Sam Fortson. Sam Fortson died in 1913, intestate, and unmarried. February 27, 1917, Richard Fortson conveyed to J. A. Knowles his community one-half undivided interest in the 78 acres. Later in the year 1917, Richard Fortson died, leaving a will devising the remainder of his interest, being that inherited from his son, Sam Fortson, to his daughter, Ethel Fortson Armstrong. January 8, 1918, J. A. Knowles conveyed the one-half interest acquired from Richard Fortson to J. W. Armstrong and wife, Ethel Fortson Armstrong, reserving a vendor's lien against the property. The deed recited a consideration of $20 cash and five vendor's lien notes of $105 each, payable to J. A. Knowles, due November 1918, 1919, 1920, 1921, and 1922, respectively. February 3, 1919, Frank Fortson conveyed his undivided interest to J. W. Armstrong and wife, Ethel Fortson Armstrong. The consideration for this conveyance consisted of $100 cash and two vendor's lien notes each in the sum of $87.50, due October 15, 1919, and 1920, respectively. The cash payment was furnished by J. A. Knowles. The two vendor's lien notes were transferred and their payment guaranteed by Frank Fortson to J. A. Knowles in payment of their face value. By agreement, a parol partition of the 78 acres of land was had whereby 13 acres off the south side of the tract was set aside to Marshall Fortson as his interest in the land in consideration of which Marshall Fortson released whatever interest he had in the remaining 65 acres to the other cotenants, J. W. Armstong and wife, Ethel Fortson Armstrong. They resided on and farmed the 65 acres so set aside to them, and incurred a number of community debts due J. A. Knowles, in addition to the purchase price of the land. Some time in the year 1919, J. W. Armstrong abandoned his wife and the land and left the state. His residence remained unknown until he appeared and filed his petition of intervention in this suit in June, 1932. On December 30, 1919, Ethel Fortson Armstrong secured a divorce from J. W. Armstrong. She cultivated a crop on the land during 1920. In the fall of that year, she turned the place back to Mr. Knowles, informing him that she could not pay the place out, and that if she did remain and pay for the place, that her former husband might return and claim one-half of it. It appears that Mr. Knowles accepted the place back, and thereupon rented it to one Harrison Fortson, a relative of Ethel Armstrong. At this time Ethel conveyed to Mr. Knowles the interest which she had inherited in the land, the consideration of which being the cancellation of some personal indebtedness and the payment by J. W. Knowles to her of the balance in cash. No written conveyance was executed by Ethel to J. W. Knowles of the one-half interest which Mr. Knowles had conveyed to her and her husband, nor of the one-sixth interest which Frank Fortson had conveyed to her and her husband, and against which interests Knowles held the vendor's lien. It appears to have been their belief that joinder of her husband, J. W. Armstrong, was necessary to effect a written conveyance of the incumbered interests. After abandoning the property and turning it over to Mr. Knowles, Ethel left the community and moved to Houston, Tex. Continuously since 1920, J. A. Knowles has retained possession of the land, cultivating, using, and claiming it, and paying all taxes thereon before delinquency. It is also shown that he made valuable improvements on the land. J. W. Armstrong not having returned to the community to execute a written conveyance of the land, and after having consulted an attorney with respect to perfecting his title, J. A. Knowles filed suit to foreclose the vendor's lien notes. That suit was filed in October, 1923, against J. W. Armstrong, Ethel Armstrong, and Frank Fortson. The defendants were cited by publication upon the affidavit of W. C. Shoults as attorney for J. A. Knowles. February 12, 1924, judgment was rendered in the suit against the defendants for the amount of the notes, accrued interest and attorney fees amounting to $1,031.75, and for foreclosure of the vendor's lien on the land. The land was sold by the sheriff and was purchased by J. A. Knowles on a bid of $1,000. The sheriff executed a deed conveying the land to Knowles. This deed was recorded November 6, 1926, in the Deed Records of Gregg county. October 8, 1930, J. A. Knowles, joined by his daughter, Mrs. Vivian K. Bussey, and husband, J. E. Bussey, executed a mineral lease on the land to Shell Petroleum Corporation. The terms of the lease were those ordinarily contained in the standard form in use in Texas. The consideration was $375 in cash and one-eighth of all oil and gas produced and saved from the premises by the lessee.

November 5, 1931, Ethel Fortson Armstrong Snell filed this suit against J. A. Knowles in trespass to try title, claiming to own the entire premises. November 12, 1931, she filed an amended petition bringing into the suit Vivian Bussey and the Shell Petroleum Corporation, also J. W. Armstrong and Frank Fortson. In this amendment she claimed to own seven-twelfths interest in the land, and sought to vacate the above mentioned judgment rendered in favor of J. A. Knowles foreclosing his lien on the land. It appears that on September 17, 1924, Ethel Fortson Armstrong was married to Charles Snell. Snell did not join her in her petition, and he was not made a party defendant. December 14, 1931, Ethel obtained a divorce from Charles Snell. June 6, 1932, J. W. Armstrong filed a plea of intervention, claiming an interest in the land. June 20, 1932, Frank Fortson filed an answer adopting the pleadings of Ethel Snell. October 27, 1932, Charles Snell intervened, claiming an interest in the oil produced from the land prior to his divorce from Ethel.

The defendant Knowles answered by general denial, and specially pleaded several statutes of limitation, 2, 3, 4, 5, and 10 years; laches and stale demand. The Shell Petroleum Corporation likewise pleaded the several statutes of limitation, laches and stale demand, and innocent purchaser.

The cause was tried to the court without a jury, and judgment rendered for the defendants, from which Ethel Snell, J. W. Armstrong, and Frank Fortson have prosecuted a writ of error.

No request having been made therefor, the trial court filed no specific findings of fact and conclusions of law. Therefore, in our review of the record, it is to be assumed that all controverted issues were resolved by the trial court in support of the judgment which he rendered. In Smith v. Patterson (Tex.Civ. App.) 294 S.W. 984, 986, the rule is stated: "Every presumption not inconsistent with the record will be indulged in favor of the judgment, and any doubts as to the facts raised by the evidence and any view of the law which the trial court could have applied under the pleadings and evidence in the case will be resolved in support of the judgment."

Appellant's right to recover the land sued for in this case depends upon the success of their effort to vacate or have declared void a judgment rendered February 12, 1924, in the 71st district court of Gregg county, Tex., in cause No. 4337 in favor of J. A. Knowles and against appellants, J. W. Armstrong, Ethel Fortson Armstrong Snell, and Frank Fortson, foreclosing the vendor's lien notes above mentioned on the land which appellants sue to recover in this case.

The judgment is regular on its face and duly recites service of citation by publication, and deals with a subject-matter over which exercise of the trial court's jurisdiction had been invoked. Therefore, it is not void, even if found to be erroneous. Crow v. Van Ness (Tex.Civ. App.) 232 S.W. 539; Bearden v. Texas Co. (Tex.Com.App.) 60 S.W.(2d) 1031. Appellees contend that appellants' suit is a collateral attack on the judgment, and that we should review the record under the law applicable to a collateral attack. Appellees' contention is based upon the fact that the judgment in cause No. 4337 was rendered in the district court of Gregg county, and that appellants' suit to vacate it was filed and tried in the 124th district court of Gregg county. Appellants contend, in effect, that the act of the Forty-Second Legislature, First Called Session, chapter 23, page 37 (Vernon's Ann. Civ. St. art. 199, subd. 124) creating the 124th district court, by conferring upon the two courts concurrent jurisdiction within the limits of Gregg county, authorizes judgments rendered by the 71st district court to be attacked in the 124th district court. We do not think that this act of the Legislature has the effect of...

To continue reading

Request your trial
25 cases
  • State ex rel. and to Use of City of St. Louis v. Priest
    • United States
    • United States State Supreme Court of Missouri
    • June 12, 1941
    ...29 N.Y.S. 515; Peace v. Ritchie, 132 Ill. 638; Webster v. Sharpe, 121 S.E. 911; Sralina v. Saravana, 173 N.E. 281, 341 Ill. 236; Snell v. Knowles, 87 S.W.2d 871. (b) It had been practice and custom of the circuit clerk for many years to deliver executions to the sheriff, and the clerk and h......
  • In re John G. Kenedy Memorial Foundation, 13
    • United States
    • Court of Appeals of Texas
    • June 16, 2004
    ...original judgment to special district court, the latter court had jurisdiction to hear matter); Snell v. Knowles, 87 S.W.2d 871, 875 (Tex.Civ.App.-Texarkana 1935, writ dism'd w.o.j.) (where direct attack properly filed in district court was transferred to other district court pursuant to le......
  • In re John, No. 13-03-696-CV (TX 6/16/2004), 13-03-696-CV.
    • United States
    • Supreme Court of Texas
    • June 16, 2004
    ...original judgment to special district court, the latter court had jurisdiction to hear matter); Snell v. Knowles, 87 S.W.2d 871, 875 (Tex. Civ. App.—Texarkana 1935, writ dism'd w.o.j.) (where direct attack properly filed in district court was transferred to other district court pursuant to ......
  • Stevens v. Saunders, 13568
    • United States
    • Supreme Court of West Virginia
    • December 9, 1975
    ...Deboer v. Fattor, 72 Nev. 316, 304 P.2d 958 (1956); McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931); Snell v. Knowles, 87 S.W.2d 871 (Tex.Civ.App.1935). This general rule is summarized at 62 Am.Jur.2d Process § 5 (1972), as 'Where the clerk of the court is charged with the is......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT