Southwestern Settlement & Development Co. v. Randolph

• Decision Date: 22 March 1922
• Docket Number: (No. 603.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 240 S.W. 655
• Parties: SOUTHWESTERN SETTLEMENT & DEVELOPMENT CO. et al. v. RANDOLPH et al.
• Court: Texas Court of Appeals

Page 655

240 S.W. 655

SOUTHWESTERN SETTLEMENT & DEVELOPMENT CO. et al. v. RANDOLPH et al.

(No. 603.)^*

Court of Civil Appeals of Texas. Beaumont.

March 22, 1922.

Rehearing Denied April 5, 1922.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Suit by the Southwestern Settlement & Development Company and others against R. J. Randolph and others, in trespass to try title, in which J. B. Hooks intervened. Defendants' exceptions were sustained, and from the judgment for defendants, the plaintiffs appeal. Affirmed.

Kennerly, Lee & Hill, of Houston, for appellants.

Oswald S. Parker, of Beaumont, for appellees.

O'QUINN, J.

Appellants were plaintiffs below. The plaintiffs, trustees of the Southwestern Settlement & Development Company (not incorporated), and the Houston Oil Company of Texas, brought suit in trespass to try title against R. J. Randolph, Elias Jordan, Nob Guynes, and H. A. Hooks to the George Burrell 320-acre survey in Hardin county, and for injunction to restrain the cutting of timber thereon. The injunction as prayed for was granted and served on defendants.

Defendants Elias Jordan and Nob Guynes both filed disclaimers. H. A. Hooks disclaimed any interest in the land, but filed cross-action for damages against plaintiffs, which alleged wrongful issuance of the injunction. J. B. Hooks intervened by petition in trespass to try title, setting up claim to the land, and, in addition to the other plaintiffs and defendant R. J. Randolph, also named as respondent the Republic Production Company; but no service was had on it, and no appearance was made for it. Randolph filed answer, but made no appearance.

By amended petition and amended answer to the cross-action of H. A. Hooks and the intervention of J. B. Hooks, plaintiffs filed general demurrer, general denial, plea of not guilty, and of the four-year statute of limitation.

Judgment by default was rendered against Randolph in favor of the intervener, J. B. Hooks, and also that Hooks recover the land and timber involved, and that H. A. Hooks recover judgment against plaintiffs for $1,100 damages on his cross-action.

The George Burrell 320-acre survey was patented in 1855 to John Collier, as assignee of Burrell. John Collier died, and the administrator of his estate sold the land at administrator's sale in 1869 to Cave Johnson, which sale was approved by the court and deed made to Johnson, dated July 20, 1860. In 1866 Parsons Collier, administrator de bonis non of the estate of John Collier, obtained a money judgment in the district court of Jefferson county, Tex., against Cave Johnson, Wm. Lewis, and Lastie Hilldbrandt for $444.05 on a note given for the purchase money of said land. Execution by virtue of said judgment was issued to Jefferson county, and a tract of land, the property of Cave Johnson, was sold, but did not satisfy the judgment. Alias execution was then issued to Hardin county and levied upon said Burrell survey, and said land sold under said execution on July 7, 1868, to S. E. Parker for $14, the said execution and sale being the one in controversy here. The plaintiffs claim the land by virtue of a regular chain of conveyances from S. E. Parker, the purchaser at said execution sale, to themselves. J. B. Hooks, intervener, claims the land by deed from the heirs of Cave Johnson, dated October 4, 1899. H. A. Hooks based his claim for damages upon a contract with J. B. Hooks by which he (H. A. Hooks) was cutting and hauling timber from said land when he was stopped by the writ of injunction sued out by plaintiffs.

Plaintiffs offered in evidence the original writ of execution by virtue of which the land was sold to Parker to which the defendants objected on the grounds: (1) That the writ showed on its face to be without the seal of the court from which it was issued; (2) that said writ was issued on Sunday; and (3) that the return thereon was insufficient for want of description of the property levied upon and sold, by reason of all which defendants claimed the writ was void. The court sustained all of the objections to the writ, and excluded same. Plaintiffs then offered a certified copy of the deed from the sheriff to Parker, to which defendants objected, because there was no valid execution and sale to authorize said deed, which was sustained by the court. Plaintiffs then offered in evidence a regular chain of title under said Parker down to and in themselves, to all of which defendants objected, for the same reasons as the writ of execution and the deed, which objections were sustained by the court, and to all of which rulings of the court appellants excepted and have brought this appeal.

There is but one question necessary to be determined, namely: Was the execution sale to Parker a valid sale? If so, then plaintiffs were entitled to recover against all the defendants and the intervener, J. B. Hooks, as well as against H. A. Hooks in his cross-action for damages. If not, then the judgment of the court below should be affirmed. In determining this question we will first consider whether the writ of execution under which the sale was made was void, or only voidable, by reason of not being under the seal of the court out of which it was issued.

At common law a writ issued out of a court having a seal, in order to be authentic or of any force, must be attested by the seal of the court from which it issued. The common law was adopted as the law of Texas by Act of Congress of the Republic of Texas January 20, 1840 (Laws of Republic 1840, p. 3). The laws of this state, following the common law, provide that all district courts shall have a seal (article 1729), and that process issued out of said courts shall be attested by the clerk and bear the impress of the seal of the court (articles 1729, 1852, 2180, Vernon's Sayles' Civil Statutes). So that, under our statutes, there is no departure from the common-law rule requiring such writs to be authenticated by the seal of the court from which they issue.

By Act May 11, 1846, § 8, p. 200 (now article 1729), entitled "An act to organize the district courts and to define their powers and jurisdiction," it was provided:

"Be it further enacted that the district courts of each county of this state shall have a seal with a star of five points in the center and the words `District Court of ____ County, Texas,' engraved thereon; an impression of which seal shall be attached to all writs and other process, (except subpœnaes), issuing from said court, and shall be used in the authentication of all official acts of the clerk." 2 Gammell's Laws, p. 1508; Hartley's Dig. art. 647.

By Act May 13, 1846, p. 363 (now article 2180), entitled, "An act to regulate the proceedings in the district court," section 10 provides:

"That the style of all writs and process shall be `The State of Texas' and shall be tested in the name of the clerk of the court from which it is issued; it shall also state the name of the parties to the suit, the time and place of holding the court; shall be dated and signed by the clerk, with the seal of the court affixed; except subpœnaes, which may be issued without the seal; and the clerk issuing any process shall mark the day on which it issued."

In construing this act, the Supreme Court, in Frosch v. Schlumpf, 2 Tex. 422, 47 Am. Dec. 655, said:

"The exception in the last part of the section in favor of subpœnaes, shows that as to other process no exception could be allowed — that the seal of the court could not be dispensed with. It would seem then, that a process to answer, without being authenticated by the solemnity of a seal, would not give any validity to the summon, and may be treated as absolutely void, and no service of it could exact obedience, and could not authorize a judgment by default, because a party can not be in default for failing to answer or appear to a void process. The citation in the record under consideration, does not pretend to be under any seal. In its conclusion, where the attestation clause should be, we find the following: `Witness, James W. Moore, clerk of the said Court, this 26th day of October, A. D. 1846, and of the independence of the United States the seventy-first year. Attest: J. W. Moore, Clerk.' It is so clearly not within the provisions of the section of the statute we have cited, that to disregard its nonconformity, would be to shut our eyes, and render the law a dead letter."

This decision of our Supreme Court, construing the statute in question, was rendered within a year after its enactment, and, as stated by counsel for appellees, "has never been overruled or modified, but has for the greater part of a century stood, and still stands, as one of the leading American cases most often cited."

The Supreme Court of the United States, in 1868, the same year that the attempted sale herein was made, rendered its decision in the case of Ætna Insurance Co. v. Hallock, 6 Wall. (73 U. S.) 556, 18 L. Ed. 948. That was a case of trespass to try title, and the only question decided was that an execution sale was void for want of the seal affixed to the writ. In delivering the opinion of the court. Judge Miller says:

"If the paper here called an order of sale is to be treated as a writ of execution or fieri facias issued to the sheriff, or as a process of any kind issued from the court, which the law required to be issued under the seal of the court, there can be no question that it was void, and conferred no authority upon the officer to sell the land.

"The authorities are uniform that all process issuing from a court, which by law authenticates such process with its seal, is void if issued without a seal. * * * That the ordinary writ of fieri facias is the authority of the sheriff to levy on property and sell it is undoubted and needs no reference of authorities to support it; and if the supposed writ is void, then the levy and sale are also void, and not merely voidable, because they are made without any authority on the...