Roller v. Ried , 87 Tex. 69 ( 1894 )

Robert J. Scott, one of Fannin's men, was killed at Goliad, March 27, 1836, leaving surviving him as his only heirs his father, John Scott, and his mother, Sarah Scott, the latter of whom died February 9, 1842, intestate, leaving her husband, John Scott, and two sons, Thomas W. Scott and Joshua P. Scott, a daughter, E.S. Singleton, and a granddaughter, Mary Y. Cannon, her only heirs.

John Scott died June 5, 1865, leaving a will, with a codicil the effect of which is to devise to Thomas W. Scott one-half the land in Texas, and the other half to Mrs. Singleton, Mary Y. Cannon, and to John Singleton as trustee for Robert L. Singleton. Joshua Scott seems to have died prior to the death of his father, and his sons, Thomas, Jr., Samuel R., and John Scott, Jr., were not given any of the land.

All of the parties were nonresidents of this State except Thomas W. Scott, who resided in the State, and in 1855 procured to be issued to the heirs of Robert J. Scott two certificates, one for 1920 acres and the other for 1476 acres, and had in his possession these certificates and another, issued to the same parties in the same right, for 640 acres.

Thomas W. Scott and William Cloud entered into the following agreement in writing:

"Be it known, that I, T.W. Scott, of the county of Anderson and State of Texas, and William Cloud, of the county of Gann and State aforesaid [there is no such county], have this day made and entered into an agreement, the provisions of which are as follows: The said T.W. Scott delivers to the said William Cloud for survey and patent two land certificates, to-wit, bounty land certificate 2012, for 1920 acres, issued to Robert J. Scott's heirs by J.S. Gillett, Adjutant General, number 194, for 1476 acres of land, issued to the heirs of Robert J. Scott by Jas. S. Gillett, Adjutant General; and in consideration of the location, survey, and patenting of said certificates by said Cloud or his agents, the said T.W. Scott hereby agrees and promises to transfer, alienate, and convey unto the said William Cloud or to his legal representatives the one-sixth part of the land so located, which sixth part may be located and described separately and distinct from the other five-sixth; and further, the said William Cloud promises and agrees to obtain as good locations as can be found in Young Land District, pay all expenses attendant upon the location of said claims, except the expenses of having the said certificate approved by the Commissioner of Claims.

"Witness my hand and seal, this 25th May, 1858. Signed in duplicate.

"THOS.W. SCOTT, [L.S.]

"WM. CLOUD." [L.S.]

John Scott, the father, knew of and approved the foregoing contract, but the other parties interested did not know of it. Acting under the contract. Cloud located the two certificates in three surveys. The 1920 acres certificate was located in Baylor County, and the other was located in Wichita County, in two surveys, one of 907 acres and the other 569 acres. The latter was located by Cloud for himself as his locative interest, being the land in controversy in this suit.

The lands were patented upon the surveys made by Cloud, and the heirs have partitioned all the lands among themselves in a former suit. Before the patents issued, Cloud conveyed the land in controversy to J.H. Swindells, March 10, 1860, who by deed of gift conveyed it to his daughter, Mary E. Taylor, March 6, 1882, and she, joined by her husband, conveyed the north half of it to Peyton Parks, March 3, 1883; he conveyed this half to John E. Roller, March 5, 1884, and on the same day Mrs. Taylor and husband conveyed the other half to Roller. All the deeds were duly recorded in Wichita County before March 13, 1884. Soon after his purchase, in that year, Roller went into actual possession of the land, by a tenant, and has remained in possession ever since, using and enjoying it, and paying all taxes except for the year 1885.

It appears that R.E. Huff bought the interest of Thomas W. Scott, Jr., Samuel R. Scott, and John Scott, Jr., and of two children of Mary Y. Cannon, but nothing in the facts found by either the District Court or the Court of Civil Appeals shows when he purchased. No claim is made that he is an innocent purchaser, so far as we see.

September 17, 1887, E.S. Singleton, R.L. Singleton, Mrs. Sallie Carr and her husband, J.D. Carr, and R.E. Huff filed a petition in the District Court of Wichita County against Thomas W. Scott, A.F. Scott, August Harst, John Singleton, E.F. Ikard, W.D. Slaton, and John E. Roller for partition of the three tracts of land before described and a tract in Young County containing 640 acres, granted to the same parties by the same right, which, however, was not included in the contract between Cloud and Thomas W. Scott. In that petition the claims and interests of all the plaintiffs and defendants were set up, and in substance it was alleged that "T.W. Scott and his assignee, John E. Roller, were jointly entitled to nine-twenty-fourths of the land." Roller was then and ever since has been a citizen of Virginia, and he was so alleged to be in the petition. He was served with notice and copy of the petition under the statute, but had no other notice. He never appeared in that case.

The case was continued at the first term of the court, and at the next term, on the 3rd day of May, 1888, T.W. Scott filed an answer in the case, in which he claimed for himself, against all plaintiffs and defendants, five-eighths of the land, denying all allegations of adverse claims of plaintiffs and defendants, and praying that the land be adjudged to and title vested in him.

On the same day Mary Y. Cannon filed an answer, making herself a party to the suit (she was not a party before that time); claiming a one-eighth interest in the tract now in controversy, and praying for a decree for partition, and vesting title in her for that proportion of the tract. Roller was never served with or had notice of the answer of T. Scott or Mary Y. Cannon.

On the day that the answers were filed the case was tried by the court, and judgment rendered giving the land in controversy in this case to E.S. Singleton, R.L. Singleton, Mrs. Sallie Carr, J.D. Carr, R.E. Huff, A.F. Scott, T.W. Scott, and Mary Y. Cannon, adjudging that all title be divested out of the other parties and vested in them, and that Roller take nothing.

Slaton appealed from that judgment, and on the 3rd day of December, 1888, it was affirmed by the Supreme Court as to the 569 acres tract and reversed as to the other. Slaton was not interested in the tract for 569 acres, and the correctness of the judgment as to that was not before the court.

May 27, 1889, E.S. Singleton, R.L. Singleton, Sallie Carr, J.D. Carr, R.E. Huff, A.F. Scott, T.W. Scott, and Mary Y. Cannon obtained a writ of possession on said judgment, and plaintiff Roller filed this suit to set aside the judgment and to enjoin the execution of the writ of possession. The writ of injunction was granted, and upon trial the District Court set aside the former judgment and gave judgment for Roller for half the land, from which he appealed; the judgment was affirmed by the Court of Civil Appeals of the Second District.

The first question that arises is, was the judgment rendered in the former suit binding upon plaintiff John E. Roller?

As between Roller and the plaintiffs, as well as the parties to this suit, the cause of E. S. Singleton et al. v. W. D. Slaton et al. was a suit for partition, and the petition, in strict compliance with article 3466, Revised Statutes, set out the interest of each plaintiff and defendant. Roller was served with a copy of this petition, and had notice that his rights were therein recognized.

The answer of T.W. Scott, as before stated, denied the interest alleged to be in him and Roller jointly, and claimed the entire interest for himself, praying for decree of title therefor against plaintiffs and all defendants. This was in effect a plea or cross-bill over against Roller, of which he had no notice.

Mary Y. Cannon not being a party to the suit as first instituted, the pleading by which she made herself a party, setting up a claim to the very tract of land which Roller claimed and of which he was in possession, had the same effect as an intervention, of which he was entitled to notice to give the court jurisdiction.

When a new party is made in a case, by which a liability to such new party is asserted against the defendant, or a right or claim to property in controversy adverse to the right of such defendant is alleged by such new party, notice of such changed pleading must be served upon the defendant if he has not made appearance in the case. Bryan v. Lund, 25 Tex. 98. Likewise, if one of several defendants pleaded over against a co-defendant, asserting against him rights in the subject of litigation not mentioned in the petition, notice must be served upon the defendant thus pleaded against, unless he has answered in the main case. Crain v. Wright, 60 Tex. 515; Simon v. Day,84 Tex. 520; Railway v. Hathaway, 75 Tex. 557.

A judgment entered against a party without service of process as required by law is void. 1 Black on Judg., sec. 220; Hulme v. Janes, 6 Tex. 242; Witt v. Kaufman, 25 Texas Supp., 384. The presumption of service can not be indulged in this case, as it would be if the record did not show a want of it, because the record shows that judgment was entered on the same day that the answers were filed. Service could not have been had. Roller did not appear, and the judgment entered against him was a nullity, and could be attacked collaterally at any time. The question of diligence does not arise in the case.

There can be no doubt from the evidence that at the time the contract was made between T.W. Scott and Cloud, the former had an interest in the certificates delivered to Cloud of one-eighth, and that John Scott had at that time one-half in interest in said certificates. It is not denied that John Scott knew of and ratified the contract so made. It will therefore be considered as the contract of John Scott, the same as if he had signed it.

In consideration of the location, survey, and patenting of the lands under the two certificates, the contract bound T.W. Scott and John Scott (the former by its terms and the latter by his ratification) to make to Cloud a deed to one-sixth part of the land to be located by virtue of these certificates, which he was authorized to locate for himself separately. The effect of this contract was to transfer to Cloud an undivided one-sixth of the certificate itself. Wilson v. Simpson,68 Tex. 306.

In the case cited, Payne gave to Harris a bond binding himself to convey to Harris two-thirds of the remaining part of his headright. The bond proceeded upon the idea that the land was then located, when in fact no certificate had been issued, but it subsequently issued to Payne. This court said: "This gave Harris an undivided two-thirds interest in the certificate. * * * Harris' heirs had the right to locate their part of the certificate separately, and to hold the location as their interest in severalty." If the bond to convey land which had not been located transferred an interest in the certificate issued on account of the right by which the land was supposed to be held, but which certificate was not then issued, certainly a bond to convey the one-sixth interest in land to be located by certain certificates then delivered for location would have the same effect.

One who owns a certificate may transfer a part of it, and his assignee will have the right to locate his part for himself, and will not be a tenant in common with the owners of the land located by virtue of the balance of the certificate. Glasscock v. Hughes, 55 Tex. 479; Farris v. Gilbert,50 Tex. 356; Parker v. Spencer, 61 Tex. 165.

Cloud located the land for himself under the contract, sold it by metes and bounds, and Roller, claiming under him, was in the exclusive possession of it for years before the suit and at the time the judgment was rendered. The case is a stronger one for the separate claim here than in the cases cited, for in this case it was a part of the contract of transfer that he should have the right to separate his interest at the time of the location.

The contract with Cloud did not bind the other heirs in so far as they claimed under their mother, but as to their claim under John Scott they were bound the same as T.W. Scott was bound by the contract. If in making a partition among themselves they or any of them have not been fully protected, it is no fault of Roller, and he certainly can not be made to suffer for their errors in partitioning the estate to which they were jointly entitled.

The District Court erred in not entering judgment in favor of Roller against the defendants for all of the 569 acres tract, and the judgments of the District Court and the Court of Civil Appeals are reversed and judgment rendered in this court in favor of John E. Roller against all the defendants; that the enforcement of the judgment entered in the case of E.S. Singleton and others v. W. D. Slaton et al. be perpetually enjoined as to the 569 acres tract, and that said judgment, in so far as it affects the last named tract of land, be declared null and void and held for naught; and that the cloud cast upon the title of John E. Roller by the rendering of said judgment be removed. It is also ordered, that plaintiff in error recover from defendants in error all costs in this case. That this judgment be certified to the District Court of Wichita County for observance.

Reversed and rendered.

Delivered May 31, 1894.