Swilley v. McCain

• Decision Date: 15 January 1964
• Docket Number: No. A-8947,A-8947
• Citation: 374 S.W.2d 871
• Parties: W. S. SWILLEY et al., Petitioners, v. Mrs. Norah McCAIN et al., Respondents.
• Court: Texas Supreme Court

Page 871

374 S.W.2d 871

W. S. SWILLEY et al., Petitioners, v. Mrs. Norah McCAIN et al., Respondents.

No. A-8947.

Supreme Court of Texas.

Jan. 15, 1964.

Rehearing Denied Feb. 19, 1964.

Hamblen & Hamblen, Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson and Uriel E. Dutton, Houston, for petitioners.

P. Harvey, John C. Randolph, Taylor J. Hughes, Able & Graham, Houston, for respondents.

WALKER, Justice.

This suit in trespass to try title was instituted by George Grozier, a person of unsound mind acting by his next friend, against W. S. Swilley. After the deaths of the original parties, their heirs and successors in title were substituted as plaintiffs and defendants. The property in controversy is an undivided 1/48 interest in Lot No. 3, and an undivided 7/24 interest in Lot No. 5, of the subdivision of the George Young tract located in the southwest portion of the Victor Blanco Grant in Harris County. Trial was to a jury, but the only issues submitted or requested dealt with defendants' claim of title by adverse possession. While these issues were answered in the negative, the trial court rendered judgment for defendants on the basis of its conclusion that the plaintiffs had failed to show title in themselves. The Court of Civil Appeals affirmed as to Lot No. 5, but reversed and rendered judgment for plaintiffs as to the interest claimed by them in Lot No. 3. 354 S.W.2d 588.

Lorenzo de Zavalla, Jr., ¹ acquired title to three leagues of the Victor Blanco Grant by conveyance from his father dated Sept. 8, 1835. Defendants have a regular chain of title emanating from H. Masterson, to whom Zavalla conveyed the three leagues in 1903. The record also shows a deed from Zavalla's mother, Emily Hand, to George Young dated January 15, 1854, conveying a tract of 2,000 acres out of the three leagues. The land now in controversy, as well as that involved in the earlier cases discussed below, is part of this 2,000-acre tract. Plaintiffs claim through and under George Young, but no conveyance from Zavalla to his mother has been found. Instead of attempting to obtain a jury finding that a deed was made by Zavalla to Emily Hand, plaintiffs relied upon the proceedings in two former suits involving different parts of the 2,000-acre tract and the position taken by defendants and their predecessors in title in one of such suits.

In 1865 the land conveyed by Emily Hand to George Young was partitioned by the heirs of the latter into nine tracts, one of which was set apart to the widow and one to each of the children. Jane Young, the mother of George Grozier, received Lot No. 5 in the division, and her younger brother Malcolm, received Lot No. 3. Malcolm later died without having been married, and Jane Young inherited from him an undivided 1/14 interest in Lot No. 3. Jane married John Grozier and had four children: John, Robert, George and Hettie Ann. Upon her death each of the children inherited an undivided 1/4 interest in Lot No. 5 and an undivided 1/56 interest in Lot No. 3. One of the children, John, then died without issue, and his interest in the two lots passed one-half to his widow and one-half, jointly, to his sister and two brothers. If the George Young title is superior to that acquired by H. Masterson through his conveyance from Zavalla, George Grozier thus became vested with an undivided 7/24 interest in Lot No. 5 and an undivided 1/48 interest in Lot No. 3. These are the interests which plaintiffs seek to recover in the present suit.

In 1905 H. Masterson instituted an action in trespass to try title against the heirs of George Young in the District Court of Harris County to recover the land set apart to the children in the partition mentioned above. George Grozier was named as one of the defendants in the original petition, but the cause was severed as to him and several of the other heirs. The main case was then tried before a jury, which found that 'there was a deed made to 2,000 acres of the Victor Blanco Grant by Lorenzo de Zavalla, Jr. to Emily Hand.' Judgment was rendered on the verdict in favor of the heirs who were parties to that cause, and Masterson appealed. The Court of Civil Appeals affirmed the judgment of the trial court, holding that the jury finding was supported by the evidence. Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626 (wr. ref.). This is the first case upon which plaintiffs rely. The severed cause against George Grozier, who was then a person of unsound mind, was settled by his guardian ad litem. Under the terms of the settlement, $150.00 was paid by Masterson for George Grozier's interest in Lot No. 5. Judgment was entered approving the settlement, and decreeing that Masterson recover title and possession of such tract. Lot No. 3 is not mentioned in the judgment.

Masterson's title was subsequently acquired by W. S. Swilley, under whom defendants claim. In 1946 Swilley, his wife and three daughters brought an action in trespass to try title against W. H. Wagers in the District Court of Harris County to recover 235.36 acres out of Lots Nos. 4 to 8, inclusive. After the death of W. S. Swilley, the suit was prosecuted by his executrix and the other original plaintiffs. Wagers was a naked trespasser. In response to his demand, the Swilleys filed an abstract of the title upon which they relied, listing therein: (1) the instruments showing title in Zavalla; (2) the 1903 conveyance by Zavalla to Masterson; (3) the chain of conveyances by which W. S. Swilley acquired title from Masterson; (4) the 1854 conveyance by Emily Hand to George Young; (5) the presumption of a deed from Zavalla to Emily Hand predating her deed to George Young and conveying the land therein described; (6) the proceedings in the Masterson case; and (7) prior possession and the statutes of limitation. The district judge concluded from the evidence introduced that the Swilleys had established record title in themselves, and the jury found in their favor under the three and five year statutes of limitation. Judgment was accordingly rendered for the Swilleys. The Court of Civil Appeals affirmed, holding inter alia that under the rule of stare decisis the superiority of the George Young title was established by the decision in the Masterson case. Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673 (wr. ref. n. r. e.). This is the second case upon which plaintiffs now rely.

The Court of Civil Appeals held in the present case that the compromise judgment in the severed cause against George Grozier effectively divested the latter, at least as against collateral attack, of any interest in Lot No. 5. It further concluded: (1) that under the doctrine of stare decisis, the judgments in the Masterson and Wagers cases are available to plaintiffs as muniments of title; and (2) that since the Swilleys had successfully asserted the presumption of a deed from Zavalla to Emily Hand in the Wagers case, they are now estopped to take a contrary position to the prejudice of the plaintiffs. Plaintiffs also say that the contentions made by the Swilleys in the Wagers case, the judgment in that proceeding, and the judgment in the Masterson case constitute admissions against interest. They contend that a deed from Zavalla to his mother has been proven thereby as a matter of law, just as it would be by an unimpeached recital in a subsequent conveyance executed by Zavalla. See Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442.

The judgments in the two earlier cases are not available to plaintiffs as muniments of title in the ordinary sense, because they were not parties to either of those proceedings and do not claim under anyone who was. We assume without deciding that in view of the position taken by the Swilleys in the Wagers case, the judgments, jury verdicts and other papers filed in both of the former suits were properly received in evidence as admissions against iterest. See Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189. Such proceedings to not, however, conclusively prove that in fact a deed was executed and delivered by Zavalla to Emily Hand prior to his conveyance to H. Masterson. Reliance on the presumption of a lost deed and the successful assertion of the proposition that a prior decision is stare decisis of that issue may bind a party under principles of res judicata, estoppel or stare decisis, but cannot be regarded as having the same probative force as a recital of fact in a subsequent instrument executed by the grantor.

It is necessary at this point to notice two differences between the doctrine of res judicata and the rule of stare decisis. After a question of law or an issue of fact has been litigated and adjudicated in a court of competent jurisdiction, the same matter cannot be relitigated in a subsequent suit between the same parties or those in privity with them. This is by virtue of the doctrine of res judicata, which thus extends to both questions of law and issues of fact but binds only the parties to the first suit and those who claim under them. It may not be invoked by one who is not bound by the judgment in the earlier proceeding. See Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174; Read v. Allen, 56 Tex. 182; 30A Am.Jur. Judgments § 324 et seq. The judgments in the Masterson and Wagers cases are not res judicata here, because plaintiffs were not parties to either of those suits and do not claim under anyone who was.

As originally conceived and as generally applied, the doctrine of stare decisis governs only the determination of questions of law and its observance does not depend upon identity of parties. After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties....