Stanley v. Schwalby

• Decision Date: 04 March 1892
• Citation: 19 S.W. 264
• Parties: STANLEY <I>et al.</I> v. SCHWALBY <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 264

STANLEY et al. v. SCHWALBY et al.

Supreme Court of Texas.

March 4, 1892.

Appeal from district court, Bexar county.

Action by Mary W. Schwalby and others against David S. Stanley and others. Judgment for plaintiffs. Defendants appeal. Judgment modified.

A. J. Evans, U. S. Atty., and H. C. Corbaugh, for appellants. C. F. Carsner and Geo. C. Altgelt, for appellees.

STAYTON, C.J.

This is an action of trespass to try title, brought by Mrs. Schwalby against David S. Stanley and three other persons; and she alleged that she was the owner of an undivided one third of the lot; that defendants entered without title; and there was prayer for possession of the entire lot. Joseph Spence intervened in the case, and asserted title to one third of the lot, through a conveyance made to him by one of the three heirs of Duncan B. McMillan, deceased, who was also the father of Mrs. Schwalby. Defendant Stanley, for himself and the others, answered, asserting that as individuals they did not claim and had no title to the lot, but that they were lawfully in possession thereof as officers and agents of the United States of America. They asserted that the United States had complete title and entered the plea of not guilty, which was stated to be done officially. The district attorney for the United States, declaring that he acted through instructions from the attorney general, filed an answer for the United States, in which the defendants joined. This answer, after stating that the defendants, as individuals, made no claim to the property, contained a plea of not guilty; alleged that the United States and the vendee were bona fide purchasers; pleaded an estoppel claimed to grow out of the fact that plaintiff and intervener asserted no claim to the lot while the government of the United States was improving it, with other property, to be used as military headquarters for her army in Texas; pleaded the statute of limitation of 3, 5, and 10 years; and, for the United States, made claim for valuable improvements. The plaintiff filed exceptions to so much of the answer as purported to make the United States a party defendant, asserting that no authority existed in the attorney representing the parties, nor in the attorney general, to make the United States a party defendant to this action in a state court, and raising the question of jurisdiction generally, in so far as the United States was concerned. The pleas of limitation filed in behalf of the United States were also excepted to, as were the other pleas filed in that behalf. The court sustained the exceptions to the pleas of limitation, and also to the claim for improvements, but overruled all other exceptions. The claim for improvements was amended, and on trial a judgment was rendered in favor of plaintiff and intervener against the original defendants and the United States, establishing their title to two thirds of the lot, and awarding to them a writ of possession for the whole, the issuance of which was suspended until such time as they should pay for improvements, or become entitled to the writ by the failure of the United States to pay the assessed value of the lot. The court found that the United States had made improvements, in good faith, of the value of $1,720, and that the value of the use of the lot was $200, while the value of the lot was found to be $2,500, and on these findings the judgment usual in trespass to try title was rendered, from which all parties gave notice of appeal, which was perfected by the original defendants and the United States, with supersedeas bond; and all parties have assigned error.

It was agreed that Anthony M. Dignowity was common source of title; and plaintiff and intervener proved that Dignowity, through an attorney, conveyed the lot in controversy to Duncan B. McMillan by deed of date May 9, 1860, which recited a consideration paid, contained a claim of general warranty, and was duly acknowledged on the day it was executed, but was not recorded until September 30, 1889. The death of McMillan was shown, and it was proved that only three children survive him, and that plaintiff is one of these, and the vendor of intervener another. Dignowity died testate, and by the terms of his will, which was duly probated in 1875, his property passed to his widow, who on May 1, 1875, by quitclaim deed, conveyed the lot in controversy to the city of San Antonio, describing it as the lot "known as the `McMillan Lot.'" The city of San Antonio conveyed this lot, and other property conveyed by Mrs. Dignowity, to the United States by deed of date June 17, 1875. At the time the city of San Antonio bought from Mrs. Dignowity, she informed the mayor of the claim of McMillan, and refused to give other than a quitclaim deed to the lot. The city donated the lot in controversy, and other land, to the United States, and the United States district attorney, whose duty it was made to examine the title before the donation was accepted, was informed of the conveyance to McMillan; but he testified that he satisfied himself that McMillan had not paid all the purchase money, and he therefore advised that the government would get good title.

Under this state of facts, there can be no doubt of the validity of the title asserted by plaintiff and intervener, and it leaves no foundation for the claim that the city of San Antonio or the United States was an innocent purchaser. Title to the lot passed to McMillan, whether all the purchase money was paid or not, and no persons other than McMillan and his vendor had any interest in that matter. Neither by pleadings nor proof did the original defendants assert any claim to the lot, nor such a possession or claim of right in themselves as would support any plea of limitation; and the judgment against them is correct, if, holding as they did, officially, the action might be maintained against them as against other wrongdoers. Under the decision in U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240, and the cases therein cited, it must be held, while the United States cannot be sued except in such cases as may be prescribed by congress, that the officers and agents of that government, when holding possession of property for public use in their official character, may be sued in any court of competent jurisdiction by the owner of such property, and such relief given against them as might be if their holding was not official. The plea of these defendants was, in effect, an assertion of a superior outstanding title in the United States; and the court had power to examine and determine that question, with a view to ascertain and determine the right of the parties properly before the court, although its decision on the question of title to possession would not bar the right of the United States to resort to any lawful remedy for the maintenance of any right it may have to the property, if it was not properly made a defendant in the case; for, as said in the case referred to, under such facts "the United States may proceed by a bill in chancery to quiet its title, in aid of which, if a proper case is made, a writ of injunction may be obtained. Or it may bring an action of ejectment, in which, on a direct issue between the United States as plaintiff and the present plaintiff as defendant, the title of the United States could be judicially determined. Or if satisfied that its title has been shown to be invalid, and it still desires to use the property, or any part of it, for the purposes to which it is now devoted, it may purchase such property by fair negotiation, or condemn it by a judicial proceeding, in which a just compensation shall be ascertained and paid according to the constitution." The grounds on which actions against officers of the United States are held to be maintainable in cases like this are fully stated in U. S. v. Lee, from which the supreme court of the United States...