Stark v. Carroll , 66 Tex. 393 ( 1886 )

Willie, Chief Justice.

A reversal of the judgment below is sought by the appellants upon three assignments of error only. The first of these questions the validity of the execution from the United States court, for the reason that it was issued against the estates of deceased persons; the second attacks the marshal’s deed because executed in pursuance of a levy and sale made under an execution issued against the estates of deceased persons; and the third complains of the judgment below because it did not decree to Donna J. Stark fourteen hundred and sixty-eight acres of land instead of three hundred and forty-eight and three-fifths acres, and to John T. Stark, seventy-four and seventeen-hundredths instead of seventy acres.

In none of these assignments, or the propositions made under them, is the validity of the decree of the United States court attacked. It is not claimed that it did not vest in Burr, under whom Briar claims, the east half of the Winfrey tract. Indeed, there is no objection raised in this court to the judgment below so far as it is rendered in favor of Briar for the east half of the tract. The complaint is that for the reasons set forth in the assignments of error, Donna J. Stark and J. T. Stark (the latter as vendee of B. F. Holmes) should have recovered out of the west half of the tract the same amount of land that was decreed to the former and to E. F. Holmes out of the whole tract in the partition made by the county court of Newton county. There is a written argument found with the transcript which questions the jurisdiction of the United States court, to render the decree which it did in the suit of Burr v. Heirs of Smith, but as this argument has no foundation in any assignment of error, it need not be noticed.

It may be proper, however, to say, in order to put the question at rest, that Burr’s rights in the Winfrey tract were not in the least affected by the partition proceedings in Newton county. He was left free to establish those rights in any court having jurisdiction of the parties and the subject matter. There is no principle of law which requires a person having an interest in land the subject of partition in a suit between other parties, and to which he is not a party, to intervene in the proceeding, and claim his rights, or become debarred of the privilege of bringing suit in another forum to assert them.

When Burr resorted'to the federal court it was of course his duty to make all persons having an interest in the land parties to the suit. Upon failure to do this the defendants might have objected to the courts proceeding with the cause until all parties at interest were brought in, and in case judgment was rendered Avithout their presence might have revised it upon appeal. La Vega v. League, 64 Tex., 205; Ship Channel Co. v. Bruly, 45 Tex., 8; Waltz v. Borroway, 25 Ind., 380; Snevily v. Wagner, 8 Penn. St., 296; Freeman on Cont. and Part., sec. 528.

But the suit having proceeded to judgment without any such objections, and no appeal having been taken, it was too late for those defendants who were parties to the decree, to allege its invalidity in a collateral action. In this respect a decree in partition does not differ from any other. The present one was void only as to such of the part owners of the Winfrey tract as were not made parties to the partition suit.

E. F. Holmes was not a party to the suit, but Mrs. Stark and her husband were, and were included in the decree (from Avhich they were by a clerical error originally omitted) by a proceeding not questioned here by any assignment of error. Mrs. Stark cannot therefore question in this suit the validity of that decree so far as she is concerned, and Stark cannot do so except in so far as he has succeeded to the interest of E. F. Holmes.

But, as has been seen, the assignments of error do not complain of the judgment of the Hnited States court, nor of the judgment of the court below in this case so far as it decreed a recovery by Briar, the vendee of Burr, of the east half of the Winfrey tract. Yet all the evidence of Burr’s title introduced in the trial was the decree of the Hnited States court, and this was admitted without objection. The only questions for our consideration, then, are: 1. Were the execution, levy, and marshal’s sale, under which Carroll claimed, void, so as to form no basis for his title. 2. Did the court below decree to Mrs. Stark and her husband all the land they were entitled to in case the execution sale under which Carroll claimed was valid.

It is claimed that the execution was void because it was issued in part against estates of deceased persons. The administrator or guardian, or the heirs or wards represented by them, might have raised this objection, but it cannot come from the defendants against whom the execution was properly issued. They were in the same position and had the same rights and remedies as if the Avrit had been issued against them alone. In case of its satisfaction by them, they should look to the estates j ointly bound with them for the costs for contribution. The execution and sale being valid, so far as the interests of all the defendants in execution were concerned, except such; as were represented only by an administrator and a guardian, these latter and such as were not named at all as defendants in the Avrit, were all who could set up any right in the land sold as against the purchasers at marshal’s sale. Carroll was not a naked trespasser, but held, under a valid execution sale, the interests of all parties whose titles in the land could be divested by that sale; and he was a tenant in common to the extent of those interests with the other OAvners of the land whose titles had not been thus divested. B. F. Holmes’ interest was not divested by the marshal’s sale, for he Avas a party to neither the judgment in the federal court nor to the execution.

The interest of Mrs Stark did not pass by the marshal’s deed, because she was not a party against whom the execution issued. In this suit, which was brought by the respective owners of these two interests, they could recover the amounts of land to which they were entitled as heirs of Samuel H. Smith, and no more. Their rights and that of Carroll in the west half of the Winfrey tract were unaffected by the decree made in the county court of ¡Newton county. That decree partitioned the entire Winfrey tract, together with other parcels of land, among the heirs of Smith. It determined that if the estate of Smith owned all the land partitioned, Mrs. Stark was entitled to one thousand three hundred and ninety-four and nineteen one-hundredth acres, and the estate of Mrs. Holmes five hundred and nineteen and sixty-nine one-hundredth acres of the entire Winfrey tract, which Avould have made B. F. Holmes’ interest about seventy-four and oneseventli acres. It did not determine that these parties, or either of them, were entitled to these amounts of land out of the west half of the Winfrey tract;_ neither did it determine that they were to receive these respective quantities out of the tract in case the whole or any portion of it, or any of the other tracts partitioned should be lost by reason of a Avorthless.title. As each parr owner after partition has the title to his property warranted to him by all the other part owners, his remedy, in case of failure of his title to any portion of the land, is by seeking contribution out of the shares of his warrantors. James v. Adams, 24 Tex., 193.

He certainly cannot, in an action to which they are not parties, claim that his full quantum of land, allowed in a partition of a number of tracts, shall be given him from any particular parcel to the exclusion of other part onwers holding interests in the same tract. Besides Mrs. Stark and B. F. Holmes, there were a large number of other heirs, who received portions of the Winfrey land in the ¡Newton county partition. The joint interest of these amounted to some nineteen. hundred and eighty acres; yet the proposition of the defendants below was to take from the west half of the tract, the only portion to which the estate of Smith had title, the fourteen hundred and seventy acres to which they were jointly entitled, and leave the balance of less than three hundred acres to satisfy the nineteen hundred and eighty acres belonging to their co-owners. Nothing, certainly, could be more unreasonable. Mrs. Stark and B. F. Holmes were as much the warrantors of the other co-owners of the Winfrey tract as were these latter warrantors of the title of Mrs. Stark and Holmes. Tet, if these appellants are allowed to recover the judgment claimed by them in their third assignment of error, they themselves dispossess the parties whose title they have covenanted to defend.

Had Mrs. Stark and Holmes proceeded against the other parties to the ISTewton county partition for contribution, and obtained a judgment before the land had been sold at execution, fixing the amount of land which they should receive out of the west half of the Winfrey tract, the court in this case would have decreed them that amount as against the appellee. But it could not, without some such readjustment of the rights of all the heirs of Smith in and to the land of his estate, declare that, since that partition could no longer be held binding upon the parties thereto, another division of one of the several tracts included in it should be made in the absence of a large number of the persons interested therein.

As the court could not make any new partition of the half tract upon the same basis with that made of the whole by the county court of Hewton county, and could not enforce the latter, the appellants cannot complain that they were allowed to recover what they were entitled to as distributees of the Smith estate, without regard to any previous partition. It was incumbent on them, as plaintiffs, to show by satisfactory proof, their interest in the west half of the Winfrey grant. The Hewton county partition did not show it. The plaintiffs did not prove any new partition, or readjustment of the rights of the heirs of Smith m the land since a portion of it had been lost at law. They did show that Mrs. Stark and Holmes were distributees of the Smith estate. The best the court could do for them, therefore, was to allow them, out of the west half of the Winfrey grant the proportion to which these heirs of Smith would have been entitled had the partition never been made by the county court of Uewton county. The defendants below conceded to them this quantity of land, and we can see no error in the court’s decreeing them that amount, and no more.

The judgment is affirmed.

Affirmed.

[Opinion delivered June 1, 1886.]