Willis v. Matthews

• Decision Date: 01 January 1877
• Court: Texas Supreme Court
• Parties: P. J. WILLIS & BRO. v. L. L. MATTHEWS ET AL.

46 Tex. 478

P. J. WILLIS & BRO.

v.L. L. MATTHEWS ET AL.

Supreme Court of Texas.

1877.

APPEAL from Montgomery. Tried below before the Hon. James Masterson.

The opinion states the case.

N. H. & J. R. Davis, for appellants.--We maintain that all the right, title, and interest of L. L. Matthews, in and to said land, was and is vested in appellants, by the proceedings and sale in the attachment suit. It is too late for him to insist on a homestead for himself on said land, even if the alleged gift conferred title. He should have made his claim when the former suit was pending, or, perhaps, before sale, he might have raised the question by petition in error coram nobis. (28 Tex., 446.) It is to late to raise the homestead question, after a decree and sale of foreclosure on a mortgage. (29 Tex., 275;24 Tex., 172;20 Tex., 792;13 Tex., 68; Paschal's Dig., art. 128.) And we ask only the same principle of law in the attachment, lien, decree, and sale.

We respectfully refer the court to the following authorities on the point of the conclusiveness of judgments when collaterally attacked or introduced in another suit: Cooper v. Reynolds, 10 Wall., 308, and cases cited in note; 11 Id., 587;1 Tex., 309;24 Tex., 479;27 Tex., 495;32 Tex., 464;Lee v. Kingsbury, 13 Tex., 68;Jackson v. De Lancy, 13 Johns., 537.

Did the District Court err in ruling that subsequent creditors could not controvert the validity of a parol gift of land by a father to a son, &c.? We maintain that it was and is error, to the prejudice of appellants; and that, notwithstanding the supposed gift, &c., to L. L. Matthews, from his father, of the undivided half of said five hundred and eighty-one and one-half acres, the same continued the property of the father till his death, and then vested in his (L. W. Matthews) heirs, subject and liable to the payment of his debts. (Paschal's Dig., art. 1373.)

John R. Peel, for appellees.--For appellees, it is respectfully contended that the parol gift of L. W. Matthews, deceased, of his half of the five hundred and eighty-one and a half acre tract of land to his son L. L. Matthews, just after his marriage, followed by immediate possession, with valuable improvements, and a continuous occupation of the same by appellees as their homestead, until dispossessed by appellants, was a completed gift, and a valid alienation of the land. (Neale v. Neales, 9 Wall., 1; Richardson v. Rhodes, 14 Rich., (S. C.,) 95; Howard v. Windham et al., 40 Vt., 597; Appleby v. Anthony, 1 Wash., 287.)

If appellee, L. L. Matthews, could have held the land against the donor, L. W. Matthews, his father, surely, at this late day, he can hold it against appellants, attacking it collaterally, and who have not shown, by presenting their claims in evidence, that they were valid, duly allowed and approved, and subsisting against L. W. Matthews, deceased, at the time (1860) the said parol gift, &c., was made; and certainly this burden of proof was upon them. But at the time (1860) the gift was made, it is shown in evidence that the donor, L. W. Matthews, deceased, was worth, in his own right, some $40,000, over and above all liabilities and exemptions. (Richardson v. Rhodes, 14 Rich., (S. C.,) 95; Millican v. Millican, 24 Tex., 426;Saufley v. Jackson, 16 Tex., 579.)

But in this case, appellants are and were creditors of L. W. Matthews, deceased, subsequent to the gift of said land to L. L. Matthews, with full notice of the gift, possession, &c., and cannot be heard to complain. (Sexton v. Wheaton, 8 Wheat., 229; Hopkisk v. Randolph, 2 Brook., 132; Verplank v. Sterry, 12 Johns., 536.)

GOULD, ASSOCIATE JUSTICE.

In April, 1860, at the time of the marriage of L. L. Matthews to Laura Sapp, the five hundred and eighty-one and a half acres of land in controversy in this suit was owned by H. N. Jones and L. W. Matthews, father of L. L. In June following, Jones sold and conveyed his undivided interest to L. L. Matthews, the purchase-money being subsequently paid out of the separate means of the wife. Immediately after this purchase, it is claimed that the father, L. W. Matthews, made to his son a verbal gift of the other undivided half interest in the land, placed him in possession, and told him to make his home thereon, and that the tract was forthwith improved and occupied as a homestead, and was so occupied at the time of the death of Mrs. Matthews, in the fall of 1868. Shortly after her death, L. L. Matthews rented out the place for the year 1869, and went with his children to the State of Georgia, where he remained until the winter of 1869, at which time he returned, and found his late home in the possession of appellants, Willis & Bro. Previous to his departure, Willis & Bro. had brought suit against him on a promissory note, obtained service, had sued out an attachment, which was levied on the five hundred and eighty-one and a half acres of land in controversy, subject, however, to his homestead, and afterwards there was an additional levy on the entire tract, without reserve, the levy reciting that he and his family had abandoned the premises and the State. In due time, Willis & Bro. had judgment by default for their demand, and for the enforcement of their attachment lien, and when, in February, 1869, the land was sold under an order of sale, in pursuance of this judgment, they became the purchasers, for the sum of $100. In August, 1872, L. L. Matthews brought this suit against Willis & Bro., to recover possession, claiming his homestead of two hundred acres, and claiming, in behalf of his children, who were made parties plaintiff, that they, as heirs of their deceased mother, were the owners of the undivided half of the tract, and praying for partition accordingly.

In their answer, Willis & Bro. set up their title as purchasers at the sale before stated. They also set up title to the undivided half of the tract, as purchasers at another...