Thompson v. Cragg

• Decision Date: 01 January 1859
• Citation: 24 Tex. 582
• Parties: W. D. THOMPSON ET AL. v. MARTHA J. CRAGG ET AL.
• Court: Texas Supreme Court

24 Tex. 582

W. D. THOMPSON ET AL.

v.MARTHA J. CRAGG ET AL.

Supreme Court of Texas.

1859.

A decree of the district court against children, “as the heirs of their deceased father,” for specific performance of a bond, given by the father for title to land, the community property of himself and wife, sold by him in 1837, after the death of his wife, does not affect the interest which the defendants have in the land, as heirs of their mother.

Nor will such bond, decree, and the deed of a commissioner appointed by the court to convey the title, vesting in the purchaser all the right, title and interest in the land of the obligor and his heirs, constitute such title, or color of title, as will support the plea of the statute of limitation of three years, against the children, suing as heirs of their mother; five years is the shortest period which will render such title effectual against them.

Color of title, as defined by our statute, differs from title only in externals, and cannot exist when there is a complete hiatus in the chain.

But such muniments of title are sufficient to entitle the defendants to have the question of the good faith of their possession, and the value of their improvements, submitted to the jury.

In suits for partition, where there is no controversy about the title, the equities between the parties growing out of the improvements and ameliorations, may be settled by the court, with the aid of the commissioners.

But where the main question between the parties is, as to the title, with a prayer for partition; when that is decided, if the question of good faith be involved, it is the right of the defendants to have it determined, and the value of their permanent and valuable improvements ascertained by the jury, and secured to them in the ultimate partition.

Evidence that the surviving father was a poor man, unable to work for his children, and that the sale of the land was necessary for their support, is properly rejected; to sustain the sale on such grounds, would withdraw the most important rights from the courts, and commit them to the capricious inclinations of individuals. 28 Tex. 383.

The statute of limitations commences to run against females who marry under the age of twenty, in accordance with the laws of this state, from the time of such marriage. White v. Latimer, 12 Tex. 61, to this point affirmed.

Upon the dissolution of the marriage, by the death of one of the spouses, the survivor, under the Spanish law, has not the right to sell the whole of the community property, but one-half of it descends immediately to the children of the deceased spouse, subject only to the community debts.

The different provisions of the Spanish law on this subject, and the commentators thereon cited, and shown to agree with the former decision of this court, and those of the supreme court of Louisiana; and to be contrary to, and in conflict with, the case of Panaud v. Jones, 1 Cal. 488.

The 14th law of Toro, authorized the surviving spouse to dispose of his or her portion of the community or ganancial property, without being obliged to retain it for the children of the marriage, as they were bound to do with reference to property acquired by lucrative title; but that law did not mean that they might dispose of the whole of it.

APPEAL from Williamson. Tried below before the Hon. Edward H. Vontress.

This was a suit of trespass to try title, and for a partition, by Martha J. Cragg and her husband, and Eliza Holder, the widow of William Holder, against W. D. Thompson, Freeman, James K., Benjamin F., and Moses Smalley, Aaron Rubel, Thomas Bacon, and others.

There was a judgment against the plaintiffs, in favor of the Smalleys, Rubel and Bacon, on the plea of the statue of limitations, and in their favor against Thompson and the other defendants. The plaintiffs moved for a new trial, as against the defendants, in whose favor judgment was rendered against them; and Thompson and the other defendants, against whom the plaintiffs recovered judgment, also moved for a new trial; both motions were overruled, and the plaintiffs and the defendants Thompson and others, each gave notice of an appeal.

The facts are stated in the opinion.

J. A. & George W. Paschal, for the appellant. We assume it as a sound principle of law, that the decree of the district court could not be attacked or impaired collaterally; being between the same parties and their privies, for the same subject-matter, it was conclusive not only of the things determined, but which might have been determined between the parties in that suit; the object of that suit was to obtain a full conveyance; and the question of the father's right to sell the whole community interest, not only might have been presented, but was presented and determined; and if in this there was error, the remedy of the parties was by a writ of error, or bill of review, which they might have prosecuted at any time after their majority, within two years; but having acquiesced, they cannot be heard collaterally to impair the decree, or to assert their rights behind it. All these propositions the instructions assumed, as also, that Holder, as the survivor, had the right to sell.

These principles, without exception, unless for fraud, have been universally maintained from the Duchess of Kingston's case, down to this day. But it can hardly be necessary to push the discussion beyond the decisions of this court. It was first discussed, and the general authorities reviewed by the court and counsel, in the case of Southerland v. De Leon, 1 Tex. 250; and the court decided, that where the court had jurisdiction, and the jurisdiction attached, the judgment would be conclusive. In this very first case, the broad principle in Grignon v. Astor, 2 How. 343, so often recognized as law by this court, was approved.

In Grassmeyer v. Beeson, 18 Tex. 764, this court says: “Having heretofore determined that the court had jurisdiction to render the decree, it is perfectly clear that it is conclusive of the question therein adjudicated; and they are not now open to examination or discussion, unless the decree was obtained by fraud.” And the learned judge cites Shannon v. Taylor, 16 Tex. 413. In the last named case, it was simply held that the decree for specific performances was binding upon the heirs although they were not made parties to the suit.

In Foster v. Wells, 4 Tex. 104, Justice Lipscomb said: “The general proposition, that the judgment or decree of a court of competent jurisdiction, should be final as to the matter determined, cannot be controverted. The principle, however, extends further; it is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided.” In support of which the learned judge cites 1 Johns. Cas. 436, and 1 Blackf. 360; and at the same term, same vol., p. 388, the same principle was solemnly reaffirmed. See Le Guen v. Gouverneur & Kemble, 1 Johns. Cas. 492. The note of the learned editor shows that the doctrine has become universal.

In Cannon v. Hemphill, 7 Tex. 194, Chief Justice Hemphill says, that “the character of the judgment must be tested by its operation on the objects sought by the proceedings.” And see the same rule in Foster's case; 1 Greenl. Ev. § 534; Yates v. Houston, 3 Tex. 433. This case recognized the principle of the Duchess of Kingston's case, and of the various cases since affirmed by this court.

The court below gave much less effect to the judgment of a court of acknowledged general jurisdiction than this court has given to the judgments and decrees of county courts, which are only courts of general jurisdiction quoad the estates of deceased persons. See the cases of Alexander v. Maverick, 18 Tex. 179;Soye v. McCallister, Id. 80; and Soye v. Maverick, Id. 100. In the last case, the very question as to the necessity of administrating upon the estate of the mother, in order to sell the entire inheritance from both estates, was raised and decided in favor of the sale by the father's administrator only; for which the learned judge cites Jones v. Jones, 15 Tex. 143; and Berry v. Young, Id. 369. The analogy certainly holds in this case, since none others than the administrator need have been made parties. The same principle was, in fact, held in Grande v. Herrera, Id. 533.

If the the court agree with us as to the proper legal construction of this decree, then it operated as an estoppel, and the case must not only be revised, but the cause dismissed.

But if we were wrong, and the equities were before the court de novo, then there was error in excluding evidence that the sale was necessary; that the land was sold for its full value at the time of the sale; and that the heirs were left in no worse condition because of the sale. It was decided at the last term of court, in a case, the name of which is not recollected, that if the sale was necessary, and the succession was not left in a worse condition by the sale, then the heirs have no right to complain, and equity will uphold the sale.

It has never been determined by this court, that the father who survives the mother, has not the right to dispose of the headright claim, for the support of himself and children. It is even doubtful if it be not an absolute right at law. It was so ruled in California, in the case of Panaud v. Jones, 1 Cal. 488, to which particular attention is called. Certainly, if it was error to do so, it was communis error; and to disturb the sale, would be to unsettle a vast amount of rights, upon which fortunes rest. Indeed, it would be to light a magazine, far more dangerous, than that which underlies dishonest administrators' sales.

The 15th section, or the three years' statute, is analogous to the statute of 21 James I. ch. 16, entitled “An act for limitation of actions, and for evading suits at law,” and to the various modifications which this statute has received in the...