Treadway v. Eastburn

• Decision Date: 03 June 1881
• Docket Number: Case No. 4289.
• Citation: 57 Tex. 209
• Parties: J. D. TREADWAY ET AL. v. EDWARD EASTBURN.
• Court: Texas Supreme Court

57 Tex. 209

J. D. TREADWAY ET AL.

v.EDWARD EASTBURN.

Case No. 4289.

Supreme Court of Texas.

Jun. 3, 1881.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

Trespass to try title brought by Edward Eastburn, for one thousand four hundred and ninety-six acres of land, for $2,000 damages, and $500 per annum rents. Defendants A. Y. and W. W. Gunter answered April 1, 1880, and, after their general answer, set out that on April 18, 1867, judgment was rendered in the district court of Lamar county, in case No. 1485 (Sampson Fulsom v. Edward Eastburn) for $2,158.80, and foreclosing attachment lien upon the lands in controversy, and decreeing them to be sold to satisfy the debt; that the lands were sold by the sheriff in compliance with the decree, June 4, 1867, a regular legal sale day, and were purchased by Sampson Fulsom (at $2,281), who gave a deed of trust thereon to W. H. H. Long, trustee, July 14, 1867, to secure a debt of $1,259.15; that Long sold in compliance with the deed of trust February 19, 1868, and it was purchased by defendants A. Y. and W. W. Gunter, who claimed to be bona fide purchasers without notice; that after this purchase the case of Fulsom v. Eastburn was taken to the supreme court by writ of error, and the case was stricken from the docket; that Gunter sold to defendant Treadway November 28, 1876, who afterwards sold a portion of his purchase to defendant Harper; also pleas of three, five and ten years' limitation. Defendants Harper and Treadway pleaded substantially the same facts and set up their improvements in good faith.

Plaintiff, by supplemental petition, set up that the case of Fulsom v. Eastburn was reversed and dismissed. The court rendered judgment for plaintiff for the land, and against defendant Harper for $100 rents, with judgment in favor of Harper and against plaintiff for $720 improvements made in good faith, and judgment in favor of Harper against defendant Treadway for $565, and of purchase money paid by him, and judgment in favor of Treadway and against A. Y. and W. W. Gunter for $1,083.70, amount of purchase money paid by him, and for $855, the value of improvements placed by Treadway on the land, and for costs.

It was proved by the depositions of A. Y. and W. W. Gunter that they purchased in good faith without notice, actual or constructive, of plaintiff's claim before the writ of error was sued out, and paid $665, which was the value of the land at the time, believing that their title was good, and that they would not have purchased if they had known of any defect in the title.

2. Judgment by default in case of Sampson Fulsom v. Edward Eastburn, April 13, 1867, reciting “that defendant Edward Eastburn having failed to appear and answer, but wholly made default, although duly served with process,” etc., awarding a writ of inquiry; also final judgment April 18, 1867, for $2,158.80, and adjudging the land in controversy which had previously been attached to be sold to satisfy the debt.

3. Order of sale, regular under the judgment, and return of the sheriff thereon showing the sale of the land to Sampson Fulsom.

4. Deed of the sheriff to Fulsom June 4, 1867, and recorded in Lamar county June 17, 1867.

5. Deed of trust by Sampson Fulsom to W. H. H. Long, trustee, dated July 14, 1867, to secure $1,259.15, due October 27, 1867, in usual form, with power of sale, acknowledged and recorded in Lamar county on same day of its execution.

6. Deed by W. H. H. Long, trustee, in full compliance with the terms of the deed of trust to A. Y. and W. W. Gunter for the land in controversy, February 19, 1868, for $665; deed regular, and recorded in Lamar county on the same day.

7. Power of attorney from W. W. Gunter to A. Y. Gunter, in usual form, authorizing him to sell and make deed to the land in controversy, dated September, 1876, duly recorded.

8. Deed from A. Y. and W. W. Gunter to J. D. Treadway for the land in controversy, November 28, 1876, in usual form--W. W. Gunter acting by his agent, A. Y. Gunter.

9. J. D. Treadway to John Harper, by deed August 25, 1877, for part of the land.

10. Testimony of J. D. Treadway showing that he bought of the Gunters in good faith, took possession of the land at once, and made permanent and valuable improvements thereon worth $855 before this suit was brought.

11. Petition for writ of error by Edward Eastburn, May 18, 1868.

12. Transcript from supreme court showing said case “stricken from the docket, at the cost of defendant, April 29, 1869;” another transcript from same court showing cause reversed and dismissed.

The facts connected with the citation by publication appear in the opinion.

Hale & Scott, for appellants.

Maxey, Lightfoot & Denton, also for appellants.

W. B. Wright, for appellee.

I. Judgments by publication are construed strictly, and a defective service or want of strict legal service by publication renders the judgment void, and not voidable or erroneous. Blossman v. Letchford, 17 Tex., 647;Allen v. Wyser, 29 Tex., 150;Withers v. Patterson, 27 Tex., 491; Rorer on Judicial Sales, sec. 733; Galpin v. Page, 18 Wall., 350.

II. The record or papers of a case involving a jurisdictional fact may be looked to in determining said fact of jurisdiction, as presumptions of jurisdiction are indulged in the absence of proof, not against proof. McCoy v. Crawford, 9 Tex., 153;Withers v. Patterson, 27 Tex., 491;Galpin v. Page, 18 Wall., 350; Rorer on Judicial Sales, 255, sec. 733, and authorities there cited.

BONNER, ASSOCIATE JUSTICE.

All the defendants below, appellants in this court, claim title to the land in controversy under the sale by virtue of the judgment of the district court enforcing the attachment lien in the original suit of Sampson Fulsom v. Edward Eastburn, appellee.

The record shows that at least two of these defendants, A. Y. and W. W. Gunter, were purchasers in good faith for a valuable consideration, before any proceedings were taken by appellee Eastburn to avoid that judgment, and when it was in full force and effect. These defendants were strangers to that suit, and unless the judgment rendered therein was absolutely void, their rights would not be affected by its subsequent reversal. Mosely v. Gaines, 10 Tex., 396;Guiteau v. Wisely, 47 Ill., 433.

The other defendants below to this suit, Treadway and Harper, were also strangers to the original suit of Fulsom v. Eastburn, and were purchasers for value from the Gunters, and hence would be protected also if the latter should be. 1 Story's Eq. Jur., 409.

The court below seems to have found that they, too, were purchasers in good faith.

It does not appear that the supreme court reversed the judgment in the original suit of Fulsom v. Eastburn, and dismissed that suit for the want of jurisdiction of the person by reason of defective service, and it would have been improper to have dismissed the suit on that ground, but it should have been reversed and remanded. We infer from the brief of appellee Eastburn, and the evidence offered by appellants on the trial below, and which was rejected, as shown by bill of exception, that the judgment of the supreme court was based upon the fact that the cause of action arose upon a Confederate money transaction, which, under the decisions of this court at that time, was held to be illegal, and would not support an action.

As thus presented, this cause will be considered as an ordinary one, in which it is sought in a collateral proceeding to impeach, on the ground of the want of jurisdiction over the person of the defendant, the judgment of a domestic court of record of general jurisdiction.

Such question in a collateral proceeding should be tried by the record itself. Freeman on Judgments, §§ 132-4; Carpenter v. Oakland, 30 Cal., 439;Murchison v. White, 54 Tex., 78.

It is contended by appellee Eastburn, that the record in the original suit against him in favor of Fulsom, under which the land was sold, shows affirmatively this want of jurisdiction, and hence that the judgment by default was null and void, and that this...