Underwood v. Pigman, s. 1237-5617.

• Decision Date: 26 November 1930
• Docket Number: Nos. 1237-5617.,s. 1237-5617.
• Citation: 32 S.W.2d 1102
• Parties: UNDERWOOD et al. v. PIGMAN et al.
• Court: Texas Supreme Court

Page 1102

32 S.W.2d 1102

UNDERWOOD et al. v. PIGMAN et al.

Nos. 1237-5617.

Commission of Appeals of Texas, Section B.

November 26, 1930.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by J. D. Pigman against Sam Underwood and others, and cross-action by defendants, making plaintiff and others cross-defendants. To review a judgment of the Court of Civil Appeals [21 S.W.(2d) 703] affirming the judgment of the district court dismissing plaintiff's cause of action and for defendants in cross-action, defendants in main action and plaintiffs in cross-action bring error.

Reversed and remanded, with instructions.

W. E. Lessing, of Abilene, for plaintiffs in error.

Henry Russell, of Pecos, for defendants in error.

SHORT, P. J.

This controversy involves the title to and possession of a small tract of land, containing something over four acres, in an addition to the town of Monahans in Ward county, Tex. The original petition was filed April 11, 1927, by J. D. Pigman against the plaintiffs in error, as defendants. This petition, in the main, is in the usual form of the action of trespass to try title. However, it contained allegations to the effect that the defendants, named in the petition, are the legal heirs of G. M. Underwood, who is alleged to have been the owner of the land at the time of his death and who is also alleged to have died intestate, owing the state of Texas taxes due thereon amounting to $45.90; that on the first day of November, 1921, the state of Texas filed suit against the unknown owners of said property, which owners, it is alleged, the defendants were, the number of said suit being 1270; that the county attorney of Ward county made affidavit that the owners of said property were to him unknown; that citation was issued by publication; that thereafter on January 13, 1922, judgment was rendered for said taxes and a foreclosure of the tax lien on said property was decreed; that execution was levied upon the property and the sale was advertised; that on the 4th day of April, 1922, the property was sold, by virtue of said proceedings, at which sale Frank Long and N. E. Fielding became the purchasers for the consideration of $81.51; that since said time Long and Fielding conveyed the property to the plaintiff J. D. Pigman for the consideration of $500; and that the defendants had actual knowledge of these proceedings, judgment being asked for the title and possession of the land described.

The defendants, who are the plaintiffs in error here, filed their original answer June 13, 1927; on January 19, 1928, they filed their first amended original answer; on June 6, 1928, they filed their second amended answer; on November 16, 1928, they filed their third original amended answer, and by way of cross-action complained of the plaintiffs, Pigman, N. E. Fielding, J. H. Hicks, John Pigman, Frank Pigman, S. W. Estis, H. B. Dunegan, and the Coco Cola Bottling Company. The defendants prayed that the plaintiff take nothing and that they have judgment for the title and possession of the land described in the plaintiffs' petition and that the cloud on their title be removed, for rents and for costs; they also prayed for general relief. In their cross-action, the defendants, the plaintiffs in error here, alleged that the property belonged to G. M. Underwood, their father, during the year 1919, up to September 18, 1919, when G. M. Underwood died, leaving as his sole heirs these defendants and his wife, P. A. Underwood; that one-half interest in the property became vested in the wife and the other one-half became vested in the children of G. M. Underwood, last named individuals being the defendants in this case; that on June 1, 1921, the wife, P. A. Underwood, died in Dallas county, Tex., leaving a will which was duly probated in the probate court of Dallas county on July 1, 1921, whereby said property became subject to administration under said will, all of which facts were well known to the county attorney of Ward county at the time suit No. 1270, was filed, or could have been ascertained by the use of ordinary inquiry; that these defendants were the owners in fee simple of said property subject to the provisions of said will and further administration thereunder; that said suit in cause No. 1270, seeking to foreclose a tax lien on the property, for taxes alleged to be due for the years 1919 and 1920, was unauthorized, in that the petition filed in cause No. 1270 did not allege that any of the owners of said property were, at the time of the filing of the suit, unknown to the plaintiff; that the service had, upon which judgment was rendered in cause No. 1270, was based upon an affidavit which stated that "G. M. Underwood and unknown parties were unknown to affiant and that after diligent inquiry their residences cannot be ascertained"; that the notice which was caused to be published in the newspapers of Ward County gave "notice to G. M. Underwood and all unknown persons owning or claiming any interest in said land." There were other allegations attacking the proceedings had in cause No. 1270 which we do not deem necessary to state. The original answer, in addition to the special exceptions to the plaintiff's petition, contained a plea of not guilty, as well as a general denial.

The case was tried by the court without the intervention of a jury and judgment rendered reciting the fact that, the plaintiff G. M. Pigman having taken a nonsuit, his cause of action is dismissed, and that the defendants in the original suit, the plaintiffs in the cross-action, the plaintiffs in error here, take nothing, and that the parties named as defendants in the cross action recover their cost. To this judgment the defendants, the plaintiffs in error here, as such, and as plaintiffs in the cross-action, excepted and gave notice of appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District.

In a response to the request of the defendants, the plaintiffs in error here, the court filed its findings of fact and conclusions of law. The defendants excepted thereto by filing exceptions, some of which findings we will mention. In the second finding of fact the trial judge says: "The plaintiffs in cross action (evidently meaning the defendants in the suit filed by the original plaintiff) proved title from the State of Texas by a regular chain of conveyances to G. M. Underwood; they further proved that G. M. Underwood died intestate prior to the filing of Cause No. 1270 and that they were his only heirs. * * * In said Cause No. 1270 * * * wherein the State of Texas was plaintiff, and G. M. Underwood and the unknown owners of the land involved herein were defendants, a judgment was rendered on the first day of March 1922, * * * which judgment recites due service of citation, and is a judgment in favor of the plaintiff (the State of Texas) for the sum of forty-five dollars and ninety cents delinquent taxes and foreclosure of tax lien upon said real estate to secure the payment of said judgment. Said judgment is in proper form and recites due service of process upon said defendants herein, and appears to be a valid and binding instrument rendered at a regular term of court." In the third finding, among other things, the court said: "At the time said judgment was introduced in evidence, by the plaintiffs in cross action, the plaintiffs thereupon introduced in evidence an affidavit by the district attorney in said Cause No. 1270, to the effect that the residence of G. M. Underwood and the unknown persons were unknown to him; this affidavit did not recite that the names of the unknown owners were unknown. At the time the judgment was rendered and the order of sale was executed G. M. Underwood was dead and the owners of the property were the plaintiffs in cross action." (Evidently meaning also the defendants in the original suit). In the sixth finding the court says: "I further find that the only claim the defendants in cross action (evidently meaning the original plaintiff and other impleaded by the original defendants) have to such property is such title they receive through such sale."

The fact further appears, without contradiction, that G. M. Underwood died September 18, 1919, and that the suit was not filed until the 1st day of November, 1921. The affidavit made by the representative of the state is in this language: "Before me, the undersigned authority, on this day personally appeared Birge Holt, County Attorney of the County of Ward, Texas, who, being by me duly sworn, upon oath deposes and says, G. M. Underwood and unknown parties, defendants in a certain suit for foreclosure tax lien, now pending in the district court of said county, No. ____, wherein the State of Texas is plaintiff, are unknown to affiant and after diligent inquiry their residence cannot be ascertained, and affiant prays for citation by publication as the law provides." (Italics ours.)

The Court of Civil Appeals affirmed the judgment rendered by the...