Thomas v. Farris

• Court: Texas Court of Appeals
• Writing for the Court: Alexander
• Citation: Thomas v. Farris, 132 S.W.2d 435 (Tex. App. 1939)
• Decision Date: 05 October 1939
• Docket Number: No. 2132.,2132.
• Petition History: writ dism'd judgm. cor
• Parties: THOMAS et al. v. FARRIS.

132 S.W.2d 435

THOMAS et al. v. FARRIS.

No. 2132.

Court of Civil Appeals of Texas. Waco.

October 5, 1939.

Rehearing Denied October 26, 1939.

Error from District Court, Madison County; E. T. Murphy, Judge.

Trespass to try title by Ethel Thomas, guardian, and others, against Lytt Farris to recover a tract of land. To review judgment for defendant, the plaintiffs bring error.

Reversed and remanded.

Harry L. Carpenter, of Greenville, and A. H. Menefee, of Madisonville, for plaintiffs in error.

Brownlee & Brownlee, of Madisonville, for defendant in error.

ALEXANDER, Justice.

This suit was brought in trespass to try title to recover a tract of land in Madison county. The trial court sustained a general demurrer to plaintiffs' petition and entered judgment that "the defendant go hence without day." The plaintiffs appealed.

The suit was brought by Mrs. Ethel Thomas, as guardian of the estates of her three minor children by her deceased husband, E. H. Wheaton. The petition contained all of the essential elements of an action in trespass to try title as required by our statute (Vernon's Annotated Civil Statutes, art. 7366), and, in addition, went further and alleged that the land in question had been the separate property and homestead of the said E. H. Wheaton, deceased; that the said Wheaton died intestate without owing any debts and leaving the three minor children in question as his sole heirs; that there was never any administration on his estate; that subsequent to his death his surviving widow, who had remarried, who was neither administratrix of said estate nor guardian of the estates of said minors, executed a purported lien on the land to the defendant, and that the defendant had foreclosed said lien through court and was now claiming title to said land by virtue of said foreclosure judgment and sale thereunder. The plaintiffs specifically alleged that they were not parties to the foreclosure judgment and that by reason thereof the same was void as to them. As stated above, the trial court sustained a general demurrer to plaintiffs' petition.

The trial court seems to have been of the opinion that the judgment above referred to was valid and binding on the plaintiffs and that they were attempting to make an unlawful collateral attack thereon. We cannot agree with this conclusion. Of course, in passing on the sufficiency of the allegations of a petition as against a general demurrer, all allegations contained in the petition must be accepted as true, and no affirmative allegations contained in the answer thereto should be considered. According to the allegations of the petition, the plaintiffs, who were the owners of the land, were not made parties to the foreclosure judgment under which ...