Van Ness v. Crow

• Decision Date: 18 June 1919
• Docket Number: (No. 1452.)
• Citation: 215 S.W. 572
• Parties: VAN NESS v. CROW et al.
• Court: Texas Court of Appeals

215 S.W. 572

VAN NESS v. CROW et al.

(No. 1452.)

Court of Civil Appeals of Texas. Amarillo.

June 18, 1919.

Rehearing Denied November 12, 1919.

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Action by B. F. Crow and another against Lela Irene Van Ness, who answered by her next friend L. C. Counts, an attorney, and others. From the judgment, the named defendant appeals. Reversed, and case remanded.

Frank Willis and Fisher & Palmer, all of Canadian, for appellant.

E. C. Gray, of Higgins, Hoover & Willis, of Canadian, and H. G. Hendricks, of Amarillo, for appellees.

HALL, J.

Cause No. 62 upon the docket of the district court of Ochiltree county, styled B. F. Crow v. Geo. A. Van Ness et al., was filed to the April term, 1904, and was a suit in trespass to try title against Geo. A. Van Ness, his wife, Alice D. Van Ness, and Lela Irene Van Ness, the daughter of said Alice D. Van Ness and stepdaughter of Geo. A. Van Ness. Geo. A. Van Ness and Alice D. Van Ness waived the issuance and service of process, and answered, admitting that the title and ownership of the lands described in the petition were in plaintiff, alleging that they had prior thereto sold and conveyed to plaintiff all their right, title, and interest and the interest of the said minor, Lele Irene Van Ness, in said lands, and in said answer disclaimed, agreeing that judgment should be rendered accordingly. L. C. Counts, an attorney, was appointed guardian ad litem for Lela Irene Van Ness, and for his ward filed an answer, alleging that the lands in question were state school lands; that on the 8th day of August, 1899, they were filed upon by C. W. Van Ness, the father of his ward, who had duly made application to purchase the same from the state of Texas; that the said C. W. Van Ness occupied the land as his homestead, and in due time final proof of occupancy was made by Alice D. Van Ness; that the said C. W. Van Ness, and the defendant, Alice D. Van Ness, were husband and wife, occupying the premises until the death of C. W. Van Ness; that Lela Irene Van Ness was born of that marriage, and that she is the only living heir of the said C. W. Van Ness; that upon his death the land descended to and vested in his ward, subject to the homestead rights of the widow, Alice D. Van Ness. Later and at the same term of court, Guardian Ad Litem Counts moved the court to strike from the answer of Geo. A. Van Ness and wife, Alice D. Van Ness, the name of Lela Irene Van Ness. On October 10, 1905, judgment was entered in favor of the plaintiff B. F. Crow, reciting that the court heard the pleadings and the evidence and disclaimer, as well as admissions made by the defendants, and decreed that the title and possession of the premises described in the petition be vested in B. F. Crow. A guardian ad litem fee of $10 was taxed, together with all other costs, against the plaintiff. The evidence introduced and upon which the judgment was based was a deed by Geo. A. Van Ness and Alice D. Van Ness, the latter described as the survivor of C. W. Van Ness, deceased, and the present wife of Geo. A. Van Ness. For a consideration of $2,325 paid, the lands involved were conveyed to B. F. Crow, with the warranty of title, "against every person whomsoever lawfully claiming or to claim the same of any part thereof, by, through or under us." The conveyance was executed and acknowledged by the grantors October 24, 1902. The instant case, No. 314, was instituted in the district court of Ochiltree county, September 17, 1917, by B. F. Crow, the plaintiff in the above cause, numbered 62. He sued to correct the judgment rendered in cause No. 62, making Geo. A., Alice D., and Lela Irene Van Ness defendants. The error sought to be corrected was in the description of the lands sued for in cause No. 62. The prayer was that the original judgment be amended, and that said error be corrected by a judgment entered nunc pro tunc. It was alleged that Lela Irene Van Ness was now about the age of 18 years. She answered by her next friend, W. D. Fisher, an attorney, alleging that the district court had no jurisdiction of the action brought to divest her of her estate and interest in the realty described in said judgment; that said realty had been transferred to one John F. Wilkinson, praying that he be made a party, and that both plaintiff and his vendee Wilkinson take nothing as to her interest in said land, which she alleged was an undivided one-half of all the lands described in the judgment. She prayed in the alternative that in the event she could not recover her interest in said lands, then that plaintiff B. F. Crow had fraudulently transferred the same to defeat her interest, and prayed for judgment against him for its value, which was alleged to be $10,000. Defendants, Geo. A. and Alice D. Van Ness, answered by general demurrer, general denial, and plea of not guilty. Later John F. Wilkinson answered, adopting the pleadings and prayer of B. F. Crow, further alleging that he was an innocent purchaser of the land in controversy, and that in said original cause No. 62 the defendant Lela Irene Van Ness was represented by guardian ad litem, who consented to the entry of said judgment, divesting her of her interest in the lands, which she had inherited from her father. His pleading also contains a count in trespass to try title to all the lands. By subsequent supplemental pleadings the minor alleged that the judgment rendered in cause No. 62 was void, because the district court had no jurisdiction of the controversy, and directly attacked said judgment upon the ground that it was fraudulently obtained. She denied the right of Wilkinson to claim as an innocent purchaser, and asserted that she had never received anything of value for her interest in the land. By agreement the venue of the cause was changed to Lipscomb county, where upon a trial before the district judge, without a jury, judgment was rendered in favor of Wilkinson and Crow for the land, and correcting the description.

Under various assignments it is asserted that the court erred in decreeing the title and possession of the land to Crow and Wilkinson, because the evidence disclosed that it was the property of Lela Irene Van Ness, having been inherited by her from her deceased father, and never having been legally disposed of; that the district court has no jurisdiction to divest a minor of an interest in realty unless the party seeking such judgment has some character of title from the minor's ancestor; that the deed executed by Geo. A. and Alice D. Van Ness, under which plaintiff Crow claimed at the time the judgment in cause No. 62 was rendered, was void under article 3611, Vernon's Sayles' Civil Statutes; that for the same reason John F. Wilkinson acquired no title; that because the court had no jurisdiction the judgment in cause No. 62 was absolutely void; that under the Constitution and laws her title could only be divested by a proper proceeding in the county court, and that no such proceeding was ever attempted; that the evidence disclosed that she had never received anything of value for her interest in the land. By counter propositions appellee Crow and Wilkinson assert that the district court of Ochiltree county had jurisdiction of the matter in controversy; that a judgment against a person under disability, such as infancy, is not void though it may be voidable, and is sustained by the presumption obtaining in the support of judgments of courts of record; that the attack made in this case upon said judgment is a collateral, and not a direct, attack, and that the evidence conclusively shows that Wilkinson is an innocent purchaser of the premises; that the court did not err in refusing to render judgment against Crow for damages, because no trust was shown to have been reposed in Crow, requiring him to respond in damages.

The deed from Mrs. Alice D. Van Ness and her husband, Geo. A. Van Ness, purporting to convey community property of herself and first husband, was inoperative and void in so far as it attempted to dispose of the estate of the minor daughter of her first marriage. Article 3611, V. S. C. S., provides that upon the marriage of the surviving wife she shall cease to have control and management of the community estate or the right to dispose of the same. After her remarriage she cannot sell it even to pay community debts. Auerbach v. Wylie, 84 Tex. 615, 19 S. W. 856, 20 S. W. 776; Davis v. McCartney, 64 Tex. 588; Llano Improvement Co. v. Cross, 5 Tex. Civ. App. 175, 24 S. W. 77; Wingfield v. Hackney, 95 Tex. 490, 68 S. W. 263; Summerville v. King, 98 Tex. 332, 83 S. W. 680.

This being a proceeding by the plaintiff in the judgment to correct it, joined with a suit in trespass to try title to the land described in it and by the defendant to vacate the judgment for fraud and want of...