Wife v. Kingsbury

• Decision Date: 01 January 1854
• Parties: LEE AND WIFE v. KINGSBURY.
• Court: Texas Supreme Court

13 Tex. 68

LEE AND WIFE

v.KINGSBURY.

Supreme Court of Texas.

1854.

Appeal from Bexar. Action of trespass to try title by appellee against appellants to a lot of ground in the city of San Antonio, containing fourteen acres. One-half of the lot had been conveyed by the defendants to the plaintiff on the third day of December, 1851. On the tenth day of December, 1852, the defendants sued the plaintiff, alleging that the lot was the separate property of the wife, and that the deed, though absolute on its face, was a mortgage, and praying for leave to redeem, &c. The plaintiff admitted the facts alleged, and there was a judgment in the usual form in his favor for $423, on the sixth day of June, 1853, with an order of sale, and an execution against the general property of the plaintiffs for the balance, if any, after selling the mortgaged property. An order of sale was issued accordingly, and the half lot was sold to the present plaintiff on the second day of August, 1853, for the sum of $100. On the return of the order of sale an execution was issued and levied on the whole of the lot, which was also sold to the plaintiff for the sum of $39 on the 6th day of September, 1853. This suit was brought October 15th, 1853. The petition contained merely general allegations of title. The defendants answered by a general denial, and by a special plea “that said land was the separate property of Maria Jesusa Lee, (the wife,) and her homestead at the time of the pretended sale to the said Kingsbury in December, A. D. 1851, upon and about which said judgment was rendered, and the decree of the Court declaring the said conveyance a mortgage was illegal and void. Defendants refer to the records of said suit,” &c. There was a demurrer to the special plea; sustained. On the trial the plaintiff proved the judgment, order of sale, execution, and sales as heretofore stated; boundaries of the lot; and that the defendants were not residing on the lot when the judgment was rendered, but resided “on a lot or their homestead on the opposite side of the street, and continued to occupy the same to the present time.” It was proved that the defendants had resided off the premises for eighteen months before the judgment.

The defendants “offered to prove by the records of the Probate Court of Bexar county that the lot in controversy had been set apart by the said Court to the widow of the late John W. Smith (the present wife of J. B. Lee, one of the defendants herein) as a homestead, and as her separate property, under the Constitution and laws, which, upon objection by plaintiff, was excluded from the jury. To which ruling defendants, by attorney, excepted,” &c. The only part of the charge of the Court which was assigned for error, was as follows:

A judgment rendered by a competent Court is binding and conclusive on the rights therein adjudicated, and cannot be attacked or inquired into in a suit of this kind.

It appeared from all the proceedings that the lot in controversy had been the separate property of Mrs. Lee.

D. C. Vanderlip, and I. A. & G. W. Paschal, for appellants.

Buckner & Leigh, for appellee.

WHEELER, J.

The errors assigned which it is material to consider are, 1st. The ruling of the Court sustaining the demurrer to the answer. 2d. The rejection of evidence proposed by the defendant; and 3d. Insufficiency of the evidence to support the verdict.

The answer of the defendants sought to bring again in litigation in this suit matters which had been finally adjudicated and determined in a former suit between the same parties. It is an elementary principle, which does not require the support of argument or authority, that the judgments of a Court of competent jurisdiction are revisable only in an appellate Court, and cannot be impeached collaterally. Every matter adjudicated becomes a part of the record, which imports absolute verity. So long as the judgment remains in force it is in itself evidence of the right of the plaintiff to the thing adjudged, and gives him a right to process to execute the judgment. (10 Pet., 449; 3 Tex. R., 447.) It is not necessary to the conclusiveness of the former judgment that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment. (1 Greenl. Ev., Sec. 534.) The judgment, which the answer proposed to impeach, conclusively settled that the lot upon which it adjudicated a foreclosure of the mortgage, was not within the homesead exemption at the time of its rendition. That question, therefore, it was not competent for the defendant to...