author: Walkeb, P. J.

text:
    D. C. Ker v G. W. Paschal et al.
    (Case No. 3495.)
    1. Contract—Location of land certificate.—An agreement on the part of an attorney, in consideration of an interest in the land, to do all the legal work, and incur all expenses of whatever kind connected with the location of aland certificate, and getting patent thereon, does not include services rendered necessary by litigation arising after the patent has issued.
    3. Attorneys’ fees.— An attorney’s fee of $6,000 is excessive, where the client has only one thousand six hundred acres of land involved in the suit.
    8. Attorney and client — Fees.—Where a suit involved the title to ten thousand acres of land, one thousand six hundred acres being owned by the client, and the remainder by the attorney, to charge the client with one-half of the entire amount of attorneys’ fees, and expenses of the litigation, is inequitable.
    4. Purchaser subrogated to vendor’s rights.—The purchaser from an attorney of an interest in land acquired in payment for services rendered in litigation involving title thereto is subrogated to the rights of his vendor in whatever lien or incumbrance he may have upon the land.
    6. Partition—Personal judgment against the heir.—It is error to render a personal judgment against the heir in a partition pro- . ceedings, without limiting his liability to the assets or property derived from his ancestor.
    6. Incumbrance — Partition.—An incumbrance descending with the land to the heir may be made available as a defense against his right to partition, and to participate as joint owner, until it is removed, or the interest may be sold to adjust the rights of the parties in an equitable partition; but when the interest which has thus descended has been sold in partition proceedings, and the heir has no longer an interest in the land to be partitioned, the purposes of the proceedings for partition will have been accomplished, and the remedies of the other tenants in common to enforce their claim on a moneyed demand against the ancestor exhausted, unless by proceeding to enforce the collection of their account for money by such other form of procedure as may be appropriate.
    7. Sales by co-tenant—Partition.—Land sold by one co-tenant without the consent or authority of the other, and not the proceeds thereof, should, in a partition of the residue, be charged against the party making such sale.
    Error from Bexar. Tried below before the Hon. Geo. H. Noonan.
    This was a suit brought by Anna Ker on the 25th day of July, 1814, as sole devisee under the will of W. H. Ker, deceased, against Mary C. Paschal, administratrix of the estate of Isaiah A. Paschal, the heirs of said Isaiah, George W. Paschal, Sen., and George W. Paschal, Jr. The plaintiff dying during the pendency of the suit, D. 0. Ker, heir at law of the plaintiff, became a party plaintiff, and prosecuted the same.
    The petition alleged that in the year 1846 W. H. Ker purchased for his said wife, as her trustee, from certain parties claiming title under a grant to one Maria Feliciana Duran (said grant being commonly called the Cubier grant), a parcel of the land of said grant, fronting about one thousand two hundred and forty varas on the tv estera margin of the Salado creek, running back to the land known as the city tract (San Antonio).
    That said I. A. Paschal, an attorney at law, considering that the land embraced by the said grant (Cubier) was subject to entry and location, proposed to said W. H. Ker to join in the location of said land; that thereupon, about the 12th day of May, 184J, said Ker furnished to said Paschal (who had interested with him his brother, George W. Paschal, who was also a lawyer by profession) the funds wherewith said I. A. Paschal purchased of one Guillermo Núñez a headright certificate for one league and labor of land, and anticipating litigation (which was to be borne by said Paschals), had said certificate conveyed to said George W. Paschal, it being understood that said Paschals were to contribute their legal and professional services to said enterprise.
    That said Paschals, on the 11th of May, 1847, located the ÜSTuñez certificate adjoining the city tract on the west, and surveys 3STos. 93 and 94 on the south; that patent issued 7th of June, 1847, to George W. Paschal, assignee of said Kuñez, for a fraction under nineteen labors of land, and including the tract purchased by W. H. Ker in trust for his wife.
    That it was therefore agreed between the Paschals and W. H. Ker that George W. Paschal and said Ker are jointly interested in the location covered by the Kuñez certificate, except one thousand varas front of said location, on the west side of the Salado, and extending back to the town tract, which was reserved to petitioner to include her residence.
    That said Paschals were associated together in land speculation, as well as in the practice of law; that I. A. Paschal resided at San Antonio and G. W. Paschal at Austin, Galveston and other distant places, and in consideration whereof Geo. W. made I. A. Paschal his agent and attorney, giving him general power over all lands, etc., evidencing said agency by a power of attorney, in writing, bearing date 8th of January, 1847.
    That under such authority, as well as his general authority under the partnership, and other circumstances of the case, I. A. Paschal, in his capacity of attorney in fact for Geo. W. Paschal, at the request of the latter, on the 13th of June, 1847, for the purpose of evidencing the nature of their relations, made, signed and delivered to said W. II. Ker an instrument of writing as follows, to wit:
    “ State of Texas, County of Bexar.

    “ Whereas, I, on the 12th day of May, 1847, purchased of one Guillermo Kuñez, in the name of my brother, George W. Paschal, a head right certificate for one league and labor of land, and the same located on the 11th instant on the Salado creek, adjoining the town tract on the west and surveys Eos. 93 and 94 on the south: Eow, be it remembered, that said certificate was purchased on the joint account of the said George W. Paschal and Wm. H. Ker, and they are jointly interested in said location, except one thousand varas front of said location, on the west side of the Salado, and extending back to the town tract, which is reserved to Mrs. Anna Ker, the wife of said Wm. H. Ker, to be taken in such manner as to include the building on which said Ker now resides.
    “San Antonio, June 13, 1847.
    (Signed) “ I. A. Paschal,
    “ Att5y in fact for Geo. W. Paschal.
    “Addressed to Maj. Wm. H. Ker, Salado, Texas.”

    Petition averred that, under said instrument and the premises stated, George W. Paschal was constituted a trustee, holding the legal title to the reserved tract in trust for Mrs. Ker, and in like trust for W. H, Ker, as to his interest in the remainder.
    Petition alleged that said Paschals and W. H. Ker had disposed of the portion thus reserved to petitioner, and proceeds to charge that the Paschals, for their separate use and benefit, have sold and so appropriated to themselves a large portion of said tract of land, thus held in trust by George W. Paschal; that, not being fully informed, can specify those tracts only which are set forth in the list given by petitioner, consisting of a tract of three hundred and twenty acres, sold to Ackerman for $450; another of one hundred acres to Gembler for $150; another of one hundred acres to Kuis for $200; and another of eight hundred and eighty-five acres to one Elder, at $1.50 per acre, which last named sale said Elder has obtained a decree of court to rescind, but which petitioner has learned will be farther contested on appeal to the supreme court.
    Petition alleges that the question of title was determined as between the title under the patent and the Cubier grant by a final decision of the supreme court, and that after the settlement of that question said George W. Paschal, on the 31st of July, 1873, transferred to his son, George W. Paschal, Jr., among other things, his remaining interest in the said ISTuñez tract of land, without receiving any valuable consideration therefor; said George W. Paschal, Jr., being fully apprised of the existence of said trust and of petitioner’s interest.
    That after the death of I. A. Paschal, Mary C. Paschal, his widow and administratrix, in conjunction with George W. Paschal, Jr., in the year 1873, sold and appropriated to their own use and benefit many other large parcels of land off the said Ruñez tract, specifying the following, viz.: Six hundred and nine acres on the east side of the Salado to J. A. Ruis, at $5 per acre; also, fourteen and eighty-six one-hundredths acres to J. II. Kampman, at $160; another of one hundred and seventy-four acres to the same purchaser, at $870.
    Petition alleges that said sales aggregate more than the equitable share of the Paschals, and were made in derogation and in fraud of petitioner’s rights; that George W. Paschal, Jr., is unable to respond to petitioner in damages, and prays that he be enjoined from selling or otherwise disposing of any land embraced by said patent to George W. Paschal.
    Prayer that petitioner’s right to one-half of the land, patented as aforesaid to George W. Paschal, be recognized by the court; that George W. Paschal, Sen., Geo. W. Paschal, Jr., and Mary C. Paschal be compelled to disclose what tracts or interests in said land have been disposed of by them, naming purchasers, the time when, price, terms and conditions, with all other dates requisite to a full account. Prayer, also, for partition, asking that all lands previously sold by said Paschals be charged to them, and that all lands remaining free and unsold be set apart to petitioner; that her rights to either the land sold to Thos. G. Elder, or to the purchase money therefor (if that be hereafter the decree in the litigation with said Elder), be adjusted,- and the one-half thereof be vested in her; that if there be not sufficient land left to satisfy petitioner’s claim to the one-half of said joint property, that then she have a money compensation at the rate of $20 per acre, which she alleges to be the value thereof, and a judgment against said George W. Paschal, Sen., and George W. Paschal, Jr., and said I. A. Paschal’s estate, for costs, and for general relief.
    The answers of George W. Paschal, Sen., and of Mary 0. Paschal, administratrix, were in effect a denial of all the material allegations of the petition which referred to her grounds of action; and an amended answer alleged a satisfaction of the interest or claim of W. H. Ker, if any he ever had, by payment to him, on 7th of May, 1847, by said Paschals, of $832.50, being proceeds of a tract of land sold the said Paschals to Gideon Lee, and in which land said Ker had no interest. That Ker received also divers sums of money, specifically recited in said ans'wer, aggregating $2,131.50, for the four tracts of land on the Muñez tract, sold to divers persons specified in the answer; that said sums received by him were- in full satisfaction of any interest which he might have had in the land in controversy. That said sales were made in the years 1848 and 1849, and that neither W. II. Ker in his life-time, nor his legal representatives since, until now, have ever set up any claim to said land, whereby a presumption of full settlement with, and acquittance by, said Kerr and his representatives, is raised.
    The answer of George W. Paschal, Jr., pleaded a general denial; statutes of limitations of four and ten years, stale demand; and for special answer, that he is a purchaser in good faith for a valuable consideration, without notice; and sets up damages to the amount of $5,000 for slander of his title.
    The answer of George W. Paschal, Sen., pleads in reconvention as surviving partner of the late law firm of I. A. & G. W. Paschal, and says that their professional services and expenses about the defense of said land were of the value of $11,000, which are chargeable to said Ker, according to the extent of his interest, if any he had, and prays an adjustment of the account and a proportionate decreé. The- answer pleaded also stale demand and statutes of four and ten years’ limitation. Mrs. Mary C. Paschal’s answer adopted that tiled by George W. Paschal, Sen., as her own.
    There was a considerable amount of evidence adduced on the trial; but little of it, however, is necessary to be stated in-view of the points presented by the assignment of errors. The defendants do not complain of the judgment which was rendered, and the errors assigned by the plaintiff, who appeals, are limited to such questions as do not require a full statement of the evidence.
    The cause was submitted to the court without a jury, and on the hearing it was decreed that the legal title of the Núñez tract patented as has been stated to George W. Paschal was in said Paschal, but that he held one-half undivided interest thereof in trust for Win. H. Ker, under whom the plaintiff claims. That one thousand varas front on the West side of the Salado creek, of said tract, were reserved to Mrs. Anna Ker, and that the same has been since sold and is now held by other parties free and discharged from any and all claims of any of the parties to this suit. The decree recites that the court finds that George W. and Isaiah A. Paschal have heretofore sold the several portions alleged in the petition to have been by them sold (except that which was hypothetically stated to have been sold to one Elder), and that the sums of money received by them therefor, with interest to the date of this decree, amount to $2,121.38, to one-half of which sum the plaintiff in this case is entitled, viz., $1,060.69, and which should be credited and accounted for to him.
    Also that since the death of -L A. Paschal the administratrix of his estate and Geo. W. Paschal, Jr, have sold three other tracts of land, portions of said Núñez survey (naming those alleged in the petition to have been thus sold and conveyed), and that in the partition provided for in said decree the said three parcels of land be set apart and allotted to the estate of I. A. Paschal, deceased, and Geo. W. Paschal, Jr.. Whereupon the decree recites as follows, to wit: ‘‘And it appearing, further that said Guillermo Núñez tract or survey of land was in litigation for a period of twenty-five years, after which it was finally recovered (the title thereto being in dispute), and that the said Geo. W. and I. A. Paschal rendered professional services in and about said litigation; that they employed and paid large sums to-other attorneys, paid costs and other expenses in and about said litigation, and that the value of their services and the sums so paid by them amount, in the aggregate, as a charge against the said plaintiff, to the sum of $6,000; which sum is hereby adjudged to the defendants and against the said plaintiff; and it further appearing that after crediting to the said plaintiff the sum received by the said Paschals from the sales made as mentioned in section 4 of this decree, to wit, the sum of $1,060.69, and crediting and allowing to the said Paschals the sum of $6,000 for their services and money paid out and expended, there remains due to the said Paschals from the said plaintiff the sum of $4,939.31: . It is therefore ordered, adjudged and decreed by the court that the said plaintiff have and recover from all of the defendants in this suit one-half of the said. Guillermo Huffez survey of land, remaining unsold at the time of the death of I. A. Paschal, deceased (February, 1868), and that the said Geo. W. Paschal, Jr. (having succeeded to all of his vendor’s rights), and the estate of I. A. Paschal, deceased, have and recover from the said plaintiff the said sum of $4,939.31, with lawful interest thereon until paid.”
    The. decree then designates commissioners for partition, directing a division of the land remaining unsold between the plaintiff and the said George W. Paschal, Jr., and the said I. A. Paschal, deceased; one-half thereof to the plaintiff, and the other half to Geo. W. Paschal, Jr., and the estate of I. A. Paschal, deceased, according to value, and that said commissioners proceed to make a survey and partition of said remaining land, l< in the manner aforesaid ” (as specified in the decree, allotting to the Paschals the land which the administratrix and Geo.-W., Jr., had sold after the death of I. A. Paschal), and make report thereof to the next term of court.

      The decree further proceeded to adjudge and decree that the balance of $4,939.31 shall bea specific lien upon that portion of the said land remaining unsold which may be allotted and set apart to the plaintiff in this partition; and that, after said partition and confirmation thereof by the court, an order of sale may issue, directing the sheriff of Bexar county to sell the land allotted and set apart to said plaintiff, to satisfy the judgment herein rendered against him and the lien hereby decreed.
    The decree proceeded to make partition between the parties of the balance of the Kuñez land certificate, not located upon the Salado, and adjudged one-half the costs of partition against the plaintiff and the other half against Greo. W. Paschal, Jr., and the administratrix of the estate of I. A. Paschal.
    From this judgment and decree of the court the plaintiff appealed to the supreme court.

      A. N. Mills and A. Dittmar, for plaintiff in error.

      Waelder cfi Upson, for defendants in error.
   Walkeb, P. J.

The appellant assigns several grounds of error, which, so far as necessary, will be stated in the order and connection of the discussion of them.

The first assignment of error is “ that the court erred in adjudging $6,000 to the defendants against plaintiff.”

There is testimony in the case which tends to prove that it was expressly agreed at the time of making the contract between W. H. Ker and I. A. Paschal, that in consideration that the former should furnish the requisite land certificates wherewith to locate the land in question, the latter should render the necessary legal services in procuring and maintaining the title to the land thus to be jointly acquired; and if the court trying the cause had determined that such, from the evidence before it, was the contract, it certainly would have been supported by sufficient evidence to warrant that interpretation. Edmond Ker, a son of W. H. Ker, states that he was present at the making of the contract, and says that Isaiah A. Paschal proposed to witness’ father that, if he would buy certificates, he would have the league located, do all the legal worTc connected, with the same as a consideration for the money paid for the certificates, and that they would own the land jointly and equally; which was agreed to by W„ H. Ker; which, the witness proceeds to state, was consummated on the part of his father by making the purchase of the certificates, which were by said Paschal located on the land, as had been contemplated, in the name of George W„ Paschal at the request of said L A. Paschal, for the reason given by him, that he might thus be enabled to use W. H. Ker as a witness, if necessary. Witness stated again, in his testimony: “ My father bought the certificates; Paschal was to locate and do all the work, and get half the proceeds.” The testimony of Mrs. Paschal tended to prove, at least, that there was an agreement that her husband would do the “lawing,” as she expressed it, but that “ her understanding” was that he was to have full pay for it. The indefinite statements by her as to the conversation between the parties which evidenced the contract were such that, without impugning the sincerity of her impression as to the effect of their agreement, it may be deemed that her testimony, to some extent, corroborated that of Edmond Ker, as it tended, at least, to confirm his statement that I. A. Paschal undertook to perform legal services in relation to the title on some terms or other; and it is not inconsistent with what she mav have gathered from her husband or learned otherwise, that the “ full pay,” which he was to receive, would or might consist in the share of the land which he would acquire under the terms of the supposed contract. Certain letters from I. A. Paschal to W, H. Ker, read in evidence, contained matter alike tending to corroborate the statements of Edmond Ker. One brief extract only I will make from a letter dated April 24, 1854, as follows: “You are aware [thus it is in the record, but written, doubtless, instead of “ aware,” “to have”] one-half of the land and proceeds, deducting necessary expenses. For your portion of the purchase-money, as here stated, you may rely on receiving with great certainty in a short time.” The subject of the letter related to proceeds of sales made by the writer to certain purchasers of portions of the land.

The evidence evidently failed to satisfy the mind of the court that the contract extended to or established an agreement under which the-Paschals jointly, or that I. A. Paschal alone, undertook, for the consideration which has been named, to render legal services of the character which are proved to have been rendered by them in litigating with adverse claimants to the land. This evidence, however worthy of credibility, did not relieve the subjéct from doubt. ■The principal, witness, Edmond Her, as appears from his statement, was in the eleventh or twelfth year of his age at the time the contract was entered into; about twenty-eight years before the period at which he testified. The liability of a lad so young not to fully comprehend the full meaning of the terms of the contract, together with the period of time which had since elapsed, were circumstances which were' proper to be considered in weighing the force of the evidence given by him, even if the facts stated by him, if true, had been otherwise conclusive, which, however, as will be seen, they were not. The contract, as stated by him, w7as that Paschal would have the certificates located, and do all the legal work connected with the same. It is easy to conceive that the parties may have had in mind, under such terms of an agreement, the necessary legal care and superintendence necessary to make a proper file and designation, the supervision and direction of a valid legal survey and return of field-notes, and the due issuance of a patent. The contemplated venture involved an assault upon an old grant, against which attack,impediments; as might be anticipated, would be placed in every available way at each step taken against it, thus requiring the direction by, and the assistance of, legal counsel" at all the stages of the proceeding, until a patent should be procured. And in addition, it might have been anticipated that the. auxiliary remedies of. the law, through suits by mandamus; against officers of the state and county, might be necessary in-order to obtain a pat-. enfc. In that view, the language used by the witness is suggestive, that the contract may have contemplated only such legal services as would be required in the contingencies and for the purposes above supposed; “ to do all the legal work connected with the location of the certificate ” may admit of the interpretation that it has reference not to the litigation that subsequently might arise concerning the title, but simply to the services, labor and litigation, if necessary, which -would be incidental to procuring a patent on a location and survey made under a land certificate.

The same witness states that after his father’s removal to Lavaca, in accordance with the request of the latter to L A. Paschal to explain to witness the transaction between them, says that he told him his father had bought and paid, for the certificates according to their agreement, and that he had had the same located at his own expense, also in accordance with said agreement, and that it was his duty under the contract to incur all expenses of whatever kind in locating the certificates and getting the patent. The witness, however, did further state that I. A. Paschal told his father, at the time of making the location (probably in 1846), that there would have to be a suit about the land, and his services in defending the suit, together with other expenses in clearing the title, would be a set-off equal to the amount his father paid for the certificates.

“A contract is to be construed in reference to the time when it was made, and to contemporaneous laws and usages.” . . . “ And as to the mode in which a contract is to be performed, the rule is that an agreement must be performed according to its terms as understood and assented to by the parties. The assent and understanding of the parties is to be deduced from the terms of the contract, and the accompanying incidental acts by the rules of legal construction; and whether the circumstances constitute a performance is a question for a jury to determine.” Story on Con., sec. 968. Applying these rules of construction to the contract, to ascertain what acts and services of the locator were intended -to -be comprehended under it, we are of the opinion that under the evidence it was admissible for the court to determine, if it was satisfied that the plaintiff’s evidence fell short of establishing the contract as by the plaintiff it was alleged to be, that the defendants were entitled to recover, and have allowed them the reasonable value of the attorneys’ fees claimed, having proper regard to an equitable adjustment of the same according to the rules of law applicable to the facts of the case.

The next inquiry under the first assignment of errors is whether the evidence warrants the judgment in respect to the amount of fees allowed as a charge against the interest of the plaintiff in the land. The court found as the basis of the decree, that the plaintiff was the equitable owner of an equal undivided one-half of the Núñez survey, containing about three thousand one hundred and eighty acres of land. The answer of Geo. W. Paschal, Sen., and that of Mrs. Mary C. Paschal, administratrix, prayed that the value of the professional services and expenses about the defense of said land shall be chargeable to the plaintiff to the extent of the interest of W. H. Ker in the same; the defendants asked for no greater or more onerous charge to be adjudged.against the plaintiff’s interest; they pray for an adjustment of the account and a proportionate decree. The claim set up for damages for slander of title need not be noticed here, and it could not have been, nor was it considered through the evidence, nor in the action of the court. The sole issue then was, under the pleadings, what • proportion of the expenses and professional services was the plaintiff’s estate in said land chargeable with, having regard to the extent of that interest? By no rule known to equity proceedings could the defendants have demanded more than they did. The plaintiff’s ancestor, W. H. Ker, on such a basis was chargeable with only one-half of such professional services and expenses as were necessary to be rendered and incurred in and about the litigation concerning the title to said land, and G. W. and-1. A. Paschal, or I. A. Paschal, would have been chargeable with the other half, accordingly as they may have separately or jointly owned such other one-half. The value of such services and expenses is attempted to be established, not d. 'ectly, but circumstantially, and by relation or comparison. It was shown that this land was involved in the litigation of a certain suit entitled Dangerfield v. Paschal, which lasted a great number of years with varying fortunes, That ten thousand acres of land were involved in the litigation.

It was shown by Edmond Her, and not contradicted, that his father had no other land in Texas than the interest here sued for; and the defendants established by N. O. Green that there was by estimation ten thousand acres involved in the litigation of the Cubier grant. It is to be inferred from the evidence that the Dangerfield v. Paschal suit involved the title to the Cubier grant. F. L. Paschal testified that in 1847 I. A. Paschal located two leagues on the Cubier grant and two leagues on the Zambrano grant, and made other locations below and adjoining the Núñez on both sides of the Salado. N. O. G-reen testified that in the Dangerfield v. Paschal litigation “ he looked upon the Paschals as fighting their own battles; ” and, also, that “ they were .the owners of the interests involved in that litigation.” The same witness, who is an attorney at law, and had been of counsel on the Dangerfield side of that litigation, testifying further on the subject of the value of the professional services of the Paschals, said: “ It is hard to estimate the value of fees. I know most all fees in such cases were conditional. I think the fee of the Paschals in the first and second trials worth about $5,000. The property was then regarded to be as valuable as now.” It was proved also by him that the estate of I. A. Paschal paid on the second trial of the Dangerfield case (at which trial the Paschals were not, it seems, attending personally), to a firm of lawyers for services in behalf of the Paschal side, $1,000 in the district court, and $300 in the supreme court; also, $50, cost of briefs in the supreme court. This testimony furnishes the highest standard contained in the evidence whereby to fix the value of the professional services rendered. It is, indeed, all the testimony directly bearing upon the valuation or estimate of the services rendered. The extreme limit then that is furnished is about $6,350 (allowing even the amount paid to other attorneys), as the full value of the services rendered directly and in person, and by the employment of others, in the entire litigation in behalf of all the interests shown to have been involved belonging to the Paschals, as well as the comparatively small interest of a little exceeding sixteen hundred acres belonging to the plaintiff.

Six thousand dollars of this sum is adjudged chargeable against the plaintiff’s interest. If the litigation in which the attorneys’ fees are charged had embraced no other nor greater interests than the tract of land which is the subject of partition in this suit, and supposing the sum charged to be a reasonable compensation, the ratable proportion of it chargeable against the plaintiff’s one-half interest could not be claimed to exceed one-half of the amount, say $3,175.

But the evidence will not justify taking that state of case, as has been already made apparent; the Paschals were conducting a litigation which involved an interest of ten thousand acres of land, and perhaps of equal relative value to this here in controversy, in which they owned or claimed the whole, except about sixteen hundred acres; this tract is shown by the patent to have been a separate and independent survey, and it would seem that the litigation concerning the title to it would not necessarily involve litigation with other parties claiming other tracts or grants, and if the litigation were all included in one or several suits, that the increased professional labor and responsibility required for the defense or prosecution of interests relating to the other tracts embraced in said ten thousand acres would be apparent, and would impose upon those whose interests were concerned the duty to provide for the payment of the expense — certainly it would not devolve upon W. II. Her. Estimating the tract in dispute in this suit as being one-third of the ten thousand acres, and the professional fees at $6,350, the plaintiff would be properly chargeable with one-sixth part, which would amount to about $1,058. If there exist any facts relating to the litigation for which the fees of attorneys are estimated by the witness who testified on the subject, which ought to qualify our construction, they are not, we think, developed in the statement of facts; and from the evidence before us, in the record, we conclude that there was error in charging against the plaintiff’s interest in the land the sum of $6,000; that a partition based on such an estimate of the rights of the parties would be plainly unequal, and that the judgment and decree of the court founded upon it is erroneous, and ought to be reversed.

It cannot be maintained, as it is urged it may, by appellant’s counsel, that George W. Paschal, Jr., as purchaser and vendee of George W. Paschal, Sen., may not be subrogated under such conveyance to the rights which the latter had, under whatever lien or incumbrance he may have had, if any, upon the land for his services as an attorney. Walker v. Lawler’s Heirs, 45 Tex., 532, and authorities there cited.

The second ground of error assigned is, that the court erred in rendering a general personal judgment against the plaintiff, D. C. Her, for the balance remaining of the §6,000, without limiting his liability to the assets or property derived from his ancestor.

As the judgment will be reversed and the cause remanded for another trial, it does not become essential to construe and determine what is the legal effect of the judgment, when considered as an entirety, in respect to the question which is above made. The judgment, it is true, is in form that the defendants “have and recover from the plaintiff the said sum of §4,939.31, with lawful interest thereon until paid; ” but it proceeds further to direct the mode of satisfaction by an order of sale of the particular property on which the decree gives a lien; and there is no further provision made, nor order given, for the issuance of execution generally, or for the satisfaction of any balance left unpaid after the sale specially ordered. The finding of facts by the court as the premises of the foregoing portion of the decree recites that the value of the services and expenses rendered and paid by the Paschals “ amount in the aggregate, as a charge against the plaintiff, to the sum of $6,000, which sum is hereby adjudged to the defendants and against the said plaintiffs,”— proceeding to reduce the same by crediting the plaintiff with proceeds of sales of certain lands sold by them, and thus obtaining the amount for which the formal recital of recovery against plaintiff was made, with decree of lien and order of sale. The judgment and decree was probably intended by the court to have no further operation against the plaintiff than to subject the land to sale; yet its terms do not thus limit the recovery against the plaintiff to the ex- • tent of the assets inherited by him from his ancestor which should come to his hands. The judgment certainly should thus limit the terms and extent of the recovery by unequivocal and Well defined expressions in its recitals, for the heir is not liable at all personally except to the extent of assets. The State v. Lewellyn, 25 Tex., 797; Norwood v. Cobb, 37 Tex., 146. The equities which may be adjusted and enforced in a suit for partition are such only as arise out of the relation of the parties to the common property. Freeman on Co-tenancy and Partition,' p. 506. To say the least, the form of the judgment leaves it subject to doubt, whether, as it stands, it is not an absolute adjudication against the plaintiff as a personal judgment for the amount for which it was rendered. The incumbrance which descended with the land to the heir may be made available as a defense against his right to partition and to participate as joint owner until it is removed, or the interest may be decreed to be sold to adjust the rights of the parties in an equitable partition; but when the interest which has thus descended has been sold in partition proceedings, and the heir has no longer an interest in the land to be partitioned, the purposes of the proceedings for partition will have been accomplished, and the remedies of the other tenants in common, to enforce their claim on a moneyed demand against the ancestor, exhausted, unless by proceeding to enforce the collection of their account for money by such other form of procedure as may be appropriate. There is neither allegation nor proof that the plaintiff had any assets derived from his ancestor’s estate.

We do not deem it necessary to consider the other assignments of error. They relate mainly to the admission and rejection of testimony, and the rulings which were made seem to be in accordance with the rules of evidence applicable to the subject. We do not discover in the questions decided, to which exceptions were taken, any suggesting such error as requires serious consideration, in view of the reversal of the judgment and another trial.

The basis on which the court decreed the partition to be made was substantially correct. The first decree which was made by the court was reformed on the plaintiff’s motion, and that which has been recited in this opinion substituted in its place, and was adapted in some important particulars to conform to the views that were urged by the plaintiff’s motion to reform. The appellant, however, assigns that the court erred in partially overruling his motion to reconsider and to remodel the decree, or to rehear the cause. This opinion has sufficiently indicated our views as to some of the grounds of the motion, and we will not consume time in stating the grounds which are thus disposed of. The remaining questions, exclusive of those just alluded to, involve the proposition, whether or not it was correct to exclude from the actual partition to be made the tracts of land which were sold by the Paschals before the death of-1. A-. Paschal, and in lieu thereof to treat the proceeds of the sale as items for adjustment in the settlement of account between the plaintiff and said Paschals.

If those sales had been made without the consent or authority of W. H. Ker, and not ratified and approved by him afterwards, certainly the mere relationship of co-tenancy would not have had the effect to validate said sales to the prejudice of the plaintiff in partition. Trammel v. McDade, 29 Tex., 360; Hanks v. Enloe, 33 Tex., 627; Dorn v. Dunham, 24 Tex., 376; McKey v. Welch, 22 Tex., 396. If, however, the sales were made with the knowledge and consents of W. H. Kef,— dealing with each other ás copartners in a speculation or venture in' the acquisition and sale of the lands, with • authority on the part of I. A. Paschal in behalf of said Ker to negotiate and effect sales, and receive the price for their common benefit, the lands thus by common consent and action, when conveyed to the purchasers, would cease to constitute part or parcel of lands held in common between them, and Ker would be estopped from ássérting afterwards a claim to the lands sold in partition, or to require his co-tehant to account with him as co-tenant for the land in thé partition of the residue held By them. In the proceedings for partition, it would be proper, nevertheless, in adjusting such equities of all the parties as are presented in this case, as a matter of account bétweeti them, having relation to mutual charges and credits against and for each other, to ascertain and settle such indebtedness, and it would certainly present proper subject-matter for the. action of the court in order to do justice between them. The partnership dealings, if such there were, might require settlement, and in a proper case a court of equity would so adapt the remedy as to charge, if need be, the interest of one or the other with the balance due, according to the nature of the case. The plaintiff introduced and read as evidence letters from I. A. Paschal, tending to show the relations and dealings of the parties in respect to the making of sales of land—showing, too, exhibits therein, of sales as actually made — prices, terms, amounts, etc.; and no evidence whatever was offered which tended to show any objection to the sales, or that they were not made (as from the Tetters they apparently were) in accordance with a perfect understanding with each other. The decree contemplates and provides, as it ought to have done, for the partition on the terms designated of all the other lands remaining unsold, allotting" to the estate of I. A. Paschal, deceased, and to Geo. W. Paschal, Jr., to their share the tracts which they had sold, which in the partition will be charged to them; and the residue, that is, that not «sold, to be partitioned in connection with the allotment aforesaid, giving to the plaintiff an amount equal, according to quality and quantity, to the share of the defendants. The partition thus to be made providing also for the payment of whatever may be due from the plaintiff on account of the expenses and fees due, if any, will, it would seem, attain the justice of the case in accordance with the principles of law.

[Opinion delivered November 29, 1880.]

For the errors which we have indicated, the judgment must be reversed and the cause remanded, and so we shall award.

Reversed and remanded.


source: Caselaw Access Project

author: A. S. Walker, J.

license: Public Domain

text:
    Richard T. Williamson et als. v. George W. Wright.
    (Case No. 3153.)
    1. Judgment—Limiting or extending its effect by the pleadings— Arbitration.— A judgment erroneous for want of issues by the pleadings will be corrected on appeal, but it is not void. The extent of a decree, within the jurisdiction of the court rendering it, will be determined by its terms alone, and it cannot be restricted in a collateral attack by the pleadings, nor can the preliminary proceedings be examined to extend its effect or enlarge its meaning. Where the plaintiff sued to foreclose a mortgage on several tracts of land, including half of a third league survey, and during the progress of the case the parties submitted the matters to arbitrators, who awarded the whole of the third league survey to the plaintiff, and judgment was rendered accordingly, the decree passed the title to the land. Freeman on Judgments, 135; Weathered v. Mays, 4 Tex., 388; Tadlock v. Eccles, 20 Tex., 791; Withers v. Patterson, 27 Tex., 491; Vogelsang v. Dougherty, 46 Tex., 472; Taylor v. Snow, 47 Tex., 465; Guilford v. Love, 49 Tex., 740; Kendall v. Mather, 48 Tex., 598.

      2. Mistake—Correcting judgment by parol.— An application to correct a judgment by parol testimony on the ground of mistake, made twenty-six years after the alleged mistake occurred, with no allegation of ignorance, comes too late. Where it is sought to correct a mistake in a judgment by application in the court where it occurred, the application, by analogy to a bill of review, would be limited to two years from the time of the discovery of such mistake. Milam Co. v. Robertson, 47 Tex., 235; Weaver v. Shaw, 5 Tex., 289; Connolly v. Hammond, 51 Tex., 647; Smith v. Fly, 24 Tex., 352; Kuhlman v. Baker, 50 Tex., 636; Munson v. Hallo well, 26 Tex., 475; Alston v. Richardson, 51 Tex., 6; 2 Story, Eq. Jur., § 1521a.
    8. Outstanding title—■ Mortgage.— A mortgagor, notwithstanding the. terms of the conveyance, remains the real owner of the fee, and being entitled to the possession of land mortgaged, after as well as before breach of condition of defeasance, the mortgage cannot be pleaded as an outstanding title. Johnson v. Byleiy 45 Tex., 509; Burgess v. Millican, 50 Tex., 401; Duty v. Graham, 12 Tex., 434; Mann v. Falcon, 25 Tex., 275; Morrow v. Morgan, 48 Tex., 808; Peters v.,Clements, 46 Tex., 115; Wright v. Wooters, 46 Tex., 380; Sample v. Irwin, 45 Tex., 567; Moreland v. Barnhart, 44 Tex., 283. , .
    Appeal from Lamar. Tried below before the Hon. John C. Easton.
    May 28, 1872, Williamson and his sister, Mrs. Campbell, brought an action of trespass to try title in district court of Lamar county, against Wright and Garnet for a tract — one-third league — of land patented to Williamson & Bowerman, assignees of Thomas Talbert. Plaintiffs claimed as heirs of Isaac 0. and Emily Williamson, their parents. The petition further alleged that the land had been awarded ta them in an arbitration, in which the defendant was one of the arbitrators, and that the defendants were asserting claims to the land, with full notice of plaintiffs’ title.
    By an amendment plaintiffs set up title patent to Williamson & Bowerman, their deed to A. Mittower, arbitration and decree against Mittower for the land, the award being,of date July 13, 1848, and confirmed in district court October, 1848.
    The defendants, July 16, 1872, demurred and pleaded general denial.
    April 20, 1875, they amended, alleging ownership of the west half of the Tolbert survey; alleging that September 29, 1840, Williamson & Bowerman had deeded the Talbert one-third league to A. Mittower, and that on same day Mittower executed mortgages, one to Williamson, and one to Bowerman, each for half, Bowerman’s' for west half, to. secure the purchase money. That March 22,1849, Williams, as administrator of Bowerman, and as attorney in fact for Mittower, conveyed by deed to Wright the said west half of the Talbert survey.
    That November 4, 1851, Williams, as administrator of Bowerman, obtained a judgment foreclosing a mortgage against Mittower, under which the sheriff sold it, and Williams had bought it in for Bowerman’s estate.
    And that July 2, 1851, Wright had intervened in a suit in the district court of Lamar county, between Bowerman’s heirs and Williams, the administrator, setting up his (Wright’s) claim to this land, and that by decree in said case his purchase was confirmed.
    Defendants further pleaded, that in the decree rendered upon the award, under which plaintiffs claimed, was a mistake; that in the suit in which the decree was rendered but one-half was claimed; that the arbitrators did not intend to allot the entire third league, but only the east half thereof, to the Williamson heirs; that the decree was intended to adjudge the east half and no more.
    Defendants also pleaded limitation of five and ten years.
    To the amended answer alleging mistake in the decree relied on by plaintiffs, they excepted for causes —
    1. It shows that defendant, Wright, purchased the land with notice, actual and constructive, of the title of plaintiffs.

      2. A judgment of a court of competent jurisdiction is conclusive until set aside or reversed.
    3. It seeks to set aside a solemn judgment of Lamar district court in a, collateral proceeding.
    The exceptions were overruled.
    On the trial the facts as to the orders, decrees, deeds, etc., and their dates, as pleaded, were proved.
    The plaintiffs read in evidence patent for the land granted to Williamson & Bowerman, assignees of Thomas Talbert. They also proved»that they were the children and only heirs of Isaac and Emily Williamson, deceased.
    It was shown that on September 29,1840, Williamson & Bowerman executed to A. Mittower their warranty deed for the Talbert oné-third league certificate and location, the consideration, $490.30, being recited as paid.
    On same day Mittower executed to Isaac Williamson a mortgage upon several tracts of land and land certificates, to secure $7,585.20, the aggregate of four notes of same date, and equal in amount, made by Mittower to Williamson, and due one, two, three and four years thereafter. Among the lands in this mortgage was “ one undivided half of the headright claim of Thomas Talbert.”
    The notes on their face appear to have been given for lands.
    On same day Mittower executed to Bowernian a mortgage upon, among much other lands and land certificates, “ seven hundred and thirty-eight acres of land of the head-right of Thomas Talbert.” This mortgage included much more than the Williamson mortgage, and was to secure $19,201.60, the aggregate of notes described.
    After the maturity of the notes to Williamson, he brought suit against Mittower upon the notes and to foreclose the mortgage, also upon a note for $647.
    In 1847 or 1848 Williamson died, and his widow, Emily, administered. She made herself party to the suit against Mittower, and at spring term, 1848, of district court of Lamar county, May 10th, an agreement to arbitrate was filed. The agreement stipulated that “the whole matter shall be referred to two disinterested persons as arbitrators,” etc.
    In July the arbitrators returned their award, Ceorge W. Wright and Lewis .Stephens acting.
    In the award in favor of Mrs. Emily-Williamson, administratrix of Isaac Williamson, among other lands, was “ also fourteen hundred and seventy-six acres, known as the Thomas Talbert survey.”
    Subsequently, and at next term of the district court, this award was approved and made the judgment of the 'court. The award, being copied into the minutes as part of the decree, being in favor of Emily C. Williamson, administratrix of Isaac Williamson, against A. Mittower.
    In behalf of defendant was read the deed of date March 22, 1849, by Williams, as administrator of Bowerman, and as attorney in fact for A. Mittower, for the west half of the Thomas Talbert third league. This with other lands was conveyed to Wright in payment of two judgments in his favor against Mittower and Bowerman.
    It seems that Williams brought suit to foreclose the mortgage to his intestate, Bowerman, and a decree foreclosing the mortgage was rendered. The statement of facts contains a copy of such decree, but without date. The decree contains no description of lands, but orders “ that the lands mortgaged to secure the payment of said notes and described in the petition be sold,” etc.
    The probate court, by an order, authorized Williams to buy for the estate.
    In a suit by the Bowerman heirs against Williams, administrator, Wright intervened, alleging his purchase, and that his title be made good, asks the sanction of the court, and in its decree the conveyance by Williams as administrator to Wright was confirmed.
    Wright and Stephens testified that it was not their intention to set apart in the award but one-half of the Talbert tract to the Williamson heirs.
    Wright also testified that he had paid full consideration for the land, and had had possession for many years.
    The charge of the court, after stating the case, continued:
    “ 5. If this award of the arbitrators and decree of the court rendered therein was, by mistake, so made as to include the whole of one-third of a league, when only one-half of said one-third league was in litigation, then neither the arbitrators nor the court had any right or authority to divest the legal owner of said one-half and vest it in the ancestor of the plaintiffs or any one else. Again,
    “ 6. If at the time the proceedings were had in the district court of this county in the case of Williamson v. Mittower in 1848, if Bowerman or his estate was the legal or equitable owner of one-half of the one-third league, and if this half was not in controversy in the above named suit, no decree which thiá court could render would divest the title out of Bowerman’s estate and vest it in the plaintiffs or any one else; and if from the evidence you find these facts to be true, you will find for the defendants.
    “ 7. It is true that this decree would, taken by itself and unexplained by any other part- of the record, seem to vest the title in the ancestor of plaintiffs. But if these records and proceedings in the district court show you that only one-half of this one-third league was in litigation in that suit, then it would make no difference what sort of a decree the court might, render, it would not divest the proper owner of any right or title he might have had to the land in question, and your verdict should be for the defendants. . . .
    “ 8. The deed from Bowerman & Williamson vested-in Mittow.er the equitable title to the Talbert one-third league, and it makes no difference that the patent was afterwards issued to Williamson & Bowerman. And if after this, Mittower made a mortgage to Bowerman for one-half of the Talbert survey, this would show an outstanding legal title in Mittower, and an equitable or mortgage title in Bowerman, and unless the testimony shows that this title thus acquired has been divested out of Mittower or Bowerman’s estate, and vested in' plaintiffs’ ancestor, you will find for the defendants.
    ■ “9. I shall not trouble you with any charge on the rights of any of the parties that may have grown out of the suit of Bowerman’s Heirs ». Williams, the administrator of Bowerman, and George W. Wright as intervener. All that may be said of that case is that these proceedings in no way strengthen the title of the plaintiffs, and if it adds anything to the defendant’s it could only be in support of his plea of limitation, which has not been insisted on as. a defense on this trial.”
    Verdict and judgment were for defendants. Motion for new trial was overruled, and plaintiffs appealed.
    The assignments of error sufficiently indicate as error the rulings of the court on the pleadings, admission of testimony, and in the charge touching the effect to be given to the arbitration proceedings and decree, adjudging to the plaintiffs the entire interest in the Talbert tract of land.

      Hancock, West & Worth, for appellants.

      Hale c& Scott, for appellee.
   A. S. Walker, J.

The questions presented are:

1. Do the proceedings anterior to the final decree limit its effect so as to correct its disposal of the entire Talbert tract?

2. If not, can a mifetake be shown by parol in support of the defense?

3. The effect of such decree upon the title claimed by the defendant.

1. As, from its very nature, thq final judgment is the declaration of the law upon the facts ascertained, the preliminary proceedings cannot be examined to extend its effect or to enlarge its meaning. Will the judgment be alike independent when in excess of the remedy requested, or of the facts alleged for its action?

The purpose of allowing appeals is for the correction of such and other errors. The district court has general jurisdiction at law and equity, and the adjudication of the land from one of the parties to the other is within its jurisdiction. Its power upon the subject is determined by the constitution and laws of the state. In this case the parties, Williamson and Mittower, were before the court. The defendant appeared, defended, and agreed to submit the matters in dispute to arbitration. The court had, as is apparent, jurisdiction over the parties and of the subject-matter of the decree. It had Mittower before it, and had the power to adjudge the Talbert third league of land to Williamson’s administratrix.

Again, the pleadings in Williamson v. Mittower sought a money judgment and to foreclose a mortgage. Pending the suit the agreement was made to submit “ the whole matter ” to arbitrators. This is an enlargement of the mode of trial and of satisfaction of the claim. Technical regard to the pleadings nor to the relief to be granted was not exacted from the arbitrators.

If the parties had appeared before the arbitrators, and it had been submitted by Mittower that, in payment of an ascertained sum, the Talbert tract would be given, it was not incompetent for the arbitrators so to award. The evidence before them has not been reported; it was not necessary or proper that they should report more than their conclusions.

Upon the return into court of the award, the court has jurisdiction under the statute to enter it as the judgment of the court. Pas. Dig., 66.

But having the jurisdiction under the law to make such decree, and having jurisdiction over the parties, “no error in its exercise can make the judgment void.” Freeman on Judg., 135, and authorities cited; Weathered v. Mays, 4 Tex., 388; Tadlock v. Eccles, 20 Tex., 791; Withers v. Patterson, 27 Tex., 491; Vogelsang v. Dougherty, 46 Tex., 472; Taylor v. Snow, 47 Tex., 465; Guilford v. Love, 49 Tex., 740.

Finding, then, a decree within the jurisdiction of the court, its terms alone will determine its extent; and it will not, in a collateral attack; be restricted by the pleadings. A judgment erroneous for want of issues by the pleadings will be corrected on error or appeal, but it is not void. Kendall v. Mather, 48 Tex., 598.

2. Fraud and mistake control the rule as to the admission of parol testimony to vary, explain and contradict written instruments. It is within the power of a court of equity to grant relief against a mistake in a judgment; and it would seem even of the supreme court. Milam Co. v. Robertson, 47 Tex., 235.

Such correction,' when sought to be made in the court. where the mistake occurred, could be reached by an application in the nature of a writ of error coram nobis. Weaver v. Shaw, 5 Tex., 289; Milam Co. v. Robertson, 47 Tex., 239.

The relief should be sought within a reasonable time.

“ The rule is well established that a party seeking equitable relief against fraud or mistake is chargeable with laches from the time it was or ought to have been discovered.” Connolly v. Hammond, 51 Tex., 647.

“ The cause of action or suit arises when and as soon as the party has a right to apply to a court of equity for relief. In fraud and mistake it (limitation) will begin to run from the time of the discovery of such fraud or mistake and not before.” 2 Story’s Eq. Jur., sec. 1521a; Smith v. Fly, 24 Tex., 352; Kuhlman v. Baker, 50 Tex., 636; Munson v. Hollowell, 26 Tex., 475; Alston v. Richardson, 51 Tex., 6. If it be conceded that the defendant Wright could show the existence of a mistake so as to limit the effect of the judgment to which he was not a party, and upon the pleadings exhibited, still his application for the correction is made over twenty-six years after the alleged act, and with no allegation of ignorance, but with the fact appearing that he had actual knowledge of the proceedings.

In the case of Milam Co. v. Bobertson, above cited, such an application, made after seven years, was held too late. In Shaw v. Weaver, 5 Tex., 289, such application was held, “ by analogy to a bill of review, limited by our statutes to two years.”

We conclude, therefore, that the application to correct the judgment by parol testimony came too late, and defendant could ■ not acquire any right by showing such mistake, if indeed he has shown it.

It may be remarked that the testimony to the intention of the arbitrators in the award would not necessarily prove the mistake in the decree. The award was filed in court; the parties had the right to examine it; they may and doubtless did acquaint themselves with its contents. Bo objec" tions were made to the award. The decree as entered may have had the express assent of the parties, Williamson and Mittower.

3. The deed executed 29th September, 1840, to Mittotver for the Talbert certificate was on its face a complete conveyance of all estate, legal and equitable. It recited the payment of the consideration and was a deed with warranty. It is not apparent from the record that the note for §17,201.60, executed the same day, included the purchase money for a part interest in the Talbert land. The rights of an unpaid vendor holding a mortgage for the purchase money do not appear to have existed; at least such rights were not asserted by Bowerman. Johnson v. Byler, 45 Tex., 509; Burgess v. Millican, 50 Tex., 401.

The mortgage. having been recorded attached to seven hundred and thirty-eight acres interest in the land in favor of Bowerman, as well against the mortgagee as others. The title passing by the mortgage does not pass any estate in the lands. The mortgagor, notwithstanding the terms of the conveyance, remains the real owner of the fee.” Duty v. Graham, 12 Tex., 434; Mann v. Falcon, 25 Tex., 275.

The mortgagor is entitled as against the mortgagee, and •a fortiori as against all others, to the possession of the land, as well after as before the breach of condition of defeasance. Mann v. Falcon, 25 Tex., 275; Morrow v. Morgan, 48 Tex., 308. The mortgage, therefore, was not a defense as an outstanding title.-

The decree of the district court of Lamar county rendered October, 1848, operated as a conveyance to the administratrix of Isaac Williamson’s estate of whatever interest the defendant Mittower at the time had in the Talbert third league of land. As we have seen, the interest or estate upon which the decree could act was full title to the one-hálf interest, and the equity of redemption in the other half, or seven hundred and thirty-eight acres. After that decree Mittower had no power to sell or to diminish the estate or interest in the Talbert land vested in the Williamson heirs. At least any purchaser from him with notice of the right of the Williamson heirs would take no title.

Bowerman’s administrator, Williams, having the right to do so, brought suit against Mittower alone to foreclose the mortgage. A decree was rendered for the sale, among other . lands, of seven hundred and thirty-eight acres of the Thos. Talbert land included in the mortgage.

The plaintiffs, holding the equity of redemption in the seven hundred and thirty-eight acres so ordered to be sold, could not be affected by the decree. Their rights were of public record; and those participating in the foreclosure proceedings having notice, not having been made parties, they were not concluded in their rights. Morrow v. Morgan, 48 Tex., 307; Peters v. Clements, 46 Tex., 115; Wright v. Wooters, 46 Tex., 380; Sample v. Irwin, 45 Tex., 567.

As against Wright, who is a subsequent purchaser from Mittower, the plaintiffs are entitled to the possession notwithstanding the foreclosure. Being owners and entitled to possession, their title was good until a foreclosure against them.

[Opinion delivered December 18, 1880.]

There are no pleadings setting up Wright’s ownership of the mortgage, if he owns it, and that it is valid. Such equities, if they exist, cannot be adjusted in absence of pleadings. Moreland v. Barnhart, 44 Tex., 283; Morrow v. Morgan, 48 Tex., 307.

The charge of the court withdrew from the jury all consideration of the pleas of limitation. This appears to have been done in accordance with the course of the defendants in the trial. Taking the testimony of defendant Wright to his possession under his deed duly recorded in 1849, payment of taxes, etc., we do not see why limitation was not insisted upon. Had the defenses pleaded been submitted to the jury with like result of a verdict for defendants, such verdict would have been sustained. They were not passed upon by the jury, and in the issues really submitted and acted upon, there was error in the charge of the court.

This state of the record compels a reversal of the case.

The judgment below should be reversed.

Reversed and remanded.


author: Waits, J.

text:
    G. W. Gentry and W. P. Connell v. Lucy A. Collins et al.
    (Case No. 3372.)
    1. ©ommunity property — Limitation. — The title of the heirs of the mother to one-half of the community property, after her death, is as absolute and perfect as that of’the father; and where they have reduced her interest in the community property to possession, a creditor seeking to subject that interest to the payment of what he claims to be a community debt, can only do so by showing that he has a valid claim against the ancestor. A judgment obtained against the husband in a suit brought after the death of the wife, and to which the wife’s heirs were not parties, does not. constitute a valid debt against the heirs or their ancestor. As against the heirs, the suit against the husband does not stop the running of the statute of limitations, and if at the time the proceedings against them upon the judgment against the husband are instituted the claim on which the judgment is based would be barred, they may plead limitation against the judgment.
    Appeal from Washington.' Tried below before the Hon. E. B. Turner.
    The opinion states the facts.

      Giddings ds Morris, for appellants.

      Shepard dk Garrett and Sayles d Bassett, for appellees.
   Waits, J.

Appellants' filed their petition in the district court of Washington county against the appellees on the 5th day of August, 1875, containing, in substance, the following averments:

On the 19th day of March, 1860, Hath aniel Atkinson executed and delivered to G. W. Gentry and J. D. Giddings two promissory notes, each for the sum of $362. The first of these notes becam'e due on the 1st day of January, 1861, the other the 1st day of January, 1862. These notes were given for land sold to said Atkinson during the life of his wife, Ann E. Atkinson; the latter died the 10th day of October, 1864, leaving several children.

The last-mentioned note was transferred to appellant P. W. Connell. Ho administration was ever had upon the estate of Mrs. Atkinson, nor did her husband qualify as survivor in community. The appellants Gentry and Connell instituted suit upon the two notes against said Hathaniel Atkinson individually, in the district court of Washington county, after the death of his said wife, and recovered a judgment against him the 17th day of April, 1868, and therein a foreclosure of the vendor’s lien upon the land for which said notes were given was decreed. That in August, 1868, said land was «old by virtue of an order of sale, based .upon said judgment. The proceeds arising from said sale, to wit, $181, were applied to the judgment, leaving a balance unpaid of about $900. At the time of the death of. Mrs. Atkinson they owned, as community property, besides the land sold by virtue of said order of sale, two tracts of land lying in Washington county, one containing four hundred and eighty acres, the other nine hundred and thirteen acres.

M. D. Anderson, on the 22d day of April, 1867, recovered a judgment against Atkinson upon a note executed by him after the death of his wife. The four hundred and eighty acre tract, less his homestead, was sold at sheriff’s sale to satisfy said judgment in October, 1868. At the sale Wilkins became the purchaser, and afterwards conveyed the same to Killough, and on the 1st day of October, 1867, 17. Atkinson conveyed „the nine hundred and thirteen acre tract to his son-in-law, John Collins.

The appellees, as the heirs of Mrs. Atkinson, brought suit against Killough in 1873 for their mother’s community interest in the land, and therein recovered and procured a partition of the same; in 1875 they also instituted a suit for one-half of the nine hundred and thirteen acre tract against parties claiming the same under the sale to Collins, and recovered the same, and pending a partition thereof, the appellants instituted this suit against them as heirs of Mrs. Atkinson, for the purpose of subjecting the lands recovered by them in the two- partition suits to the payment of the unpaid balance on the judgment against 17. Atkinson, rendered in 1S68. Appellants subsequently filed two amendments to their original petition; these, however, contain no additional averments necessary to be noticed in the disposition of this case. The appellees excepted to the petition on the ground that it appeared from the averments thereof that appellants’ cause of action had accrued more than four years before the institution of this suit. The court below sustained the exception, and the appellants having declined further to amend, the court" rendered judgment that they take nothing by their suit, etc., to which appellants excepted, and gave notice of appeal.

The only error assigned is that the court erred in sustaining the exception to the petition, and rendering judgment for the appellees.

The question presented for decision is this: Will a judgment rendered against the husband individually, after the •death of the wife, for a community debt, constitute such a claim against the estate of the deceased wife or her heirs as would prevent the running of the statute of limitations in behalf of the said heirs on the original debt?

The notes given by Atkinson in 1860 were community debts, and the community property of himself and wife was subject to the payment of the same. Upon the death of Mrs. Atkinson, her interest in that property vested in the appellees, subject, however, to the payment of community debts. The husband, after the death of the wife, could have retained the possession and control of the whole community estate, for the purpose of paying the community debts; and so long as he retained such possession and control, he would have the power to dispose of the same, if necessary, in settling such debts.

Appellants cite and rely upon the case of Jones v. Jones, 15 Tex., 148. The only question determined by that decision is, that where the administrator of the husband is in the possession and has the control of the community property,. and a community debt having been established against him as such administrator, that the heirs of the deceased wife could not recover from such administrator their deceased mother’s interest in the community estate, in a suit for that purpose, upon the ground that the claim was barred at and before the time it was established against the administrator.

The case before the court involves a different question from that determined in Jones v. Jones, and is clearly distinguishable therefrom.

Here the husband had divested himself of the possession and control of the nine hundred and thirteen acre tract of land, by voluntary conveyance, prior to appellants’ judgment against him, and long after the deáth of his wife. That a short time after the rendition of said judgment he lost the possession and control of the four hundred and eighty acre tract by an execution sale, under a prior judgment against him for an individual debt.

The heirs of the mother had recovered by suits and reduced to possession her interest in the said lands. Whereas, in the case of Jones v. Jones, the administrator of the husband had the possession and control of the community property; had inventoried it as such, and was proceeding to administer the same for the benefit of the community creditors. The heirs of the deceased wife sued the administrator for the possession of the property, and the court held that the administrator was entitled to the possession of the property for the purpose of paying the debts. It seems that the effect of the statute of limitations could not properly have been made an issue in that case. The claim had been presented to the administrator as a community debt; he rejected it, and suit has been brought, and the claim established by a judgment of the court. The question of limitation after this could have been presented by the heirs of the mother only in a direct proceeding to set aside the judgment establishing the claim. In this view of the effect of the decision in the case of Jones v. Jones, we are sustained to a considerable extent by the opinion of the supreme court, delivered at the last Austin term, in the case of Carter et al. v. Conner et als., in which it is decided that an execution sale of the wife’s community interest, upon a judgment recovered against the husband individually, after the wife’s death, upon a community debt, passed no title to the property as against the heirs of the wife. That case, it should be remarked, is still before the court on a motion for rehearing.

Here the heirs of the deceased wife had reduced her interest in the community property to possession, and the appellants, by this suit, seek to subject that interest to the payment of what they claim to be a community debt. Certainly the title of the heirs of the mother to one-half of the community property, after her death, is as absolute and perfect as is that of the father to the other half; nevertheless upon her death he may retain the whole, and apply it to the proper payment of the community debts. But after the mother’s interest has gone into the possession of her heirs, this power or right of the father over it is thereby determined. The creditor can only subject such property, in the possession of the heirs of the mother, to the payment of community debts, by legal proceedings. And if this be by suit against the heirs, then the creditor must show that' he has a valid debt against the ancestor from whom the heirs have inherited, that property thus inherited has gone into their possession, and also the value of such property.

[Opinion delivered December 20, 1880.]

The judgment against Atkinson individually, rendered in 1868, long after the death of his wife, and to which appellees were not parties, did not constitute a valid and binding claim or .debt against the estate of Mrs. Atkinson or her heirs. The production of that judgment could only show an indebtedness against Atkinson. And the appellants do not claim that appellees inherited any part of said land from him.

Hence, to establish a valid claim against the estate of Mrs. Atkinson, as a basis for subjecting the property to the payment thereof, the appellants must rely upon the two notes executed by Atkinson in 1860. Their petition shows that these notes had been due more than five years, while the statute of limitations was in active operation before the institution of this suit.

The appellees were not parties to the judgment against Atkinson, and do not claim said land as his heirs; hence there is no privity of estate, and in our opinion that judgment could not affect the question of limitation presented by the appellee’s exception. There is no error in the judgment, and it is affirmed.

Affirmed.


author: Quinan, J.

text:
    J. L. Sears and wife v. Francis A. Green.
    (Case No. 2784.)
    1. Jury.— Where the transcript recites, “ a jury came of good and lawful men, R. G-. Childress and eleven other’s,” the objection that the record does not show that a jury of twelve men were impaneled to try the cause is frivolous. Clark v. Davis, 7 Tex., 560; Johnson v. Smith, 14 Tex., 412.
    3. Practice — Entering special issues in the'minutes.— While it is proper that special issues submitted to the jury and their verdict thereon should be entered in the minutes of the court, yet where the transcript shows that the issues were made up under the direction of the court and made a part of the record, the omission to so enter them on the minutes is not such irregularity as will reverse the case.
    3. Judgment.— It is not necessary to recite the facts in the judgment. Hoffman v. Bowen, 17 Tex., 507; Cook v. Hancock, 20 Tex., 3;; Hamilton v. Ward, 4 Tex., 356.
    4. Motion for new trial.— A motion for new trial on which no .action appears to have been taken, or the attention of the court called to it, will be considered as waived, and the judgment will not be revised for want of testimony to warrant the verdict. Foster v. Smith, 1 Tex., 70; Reynolds v. Williams, id., 312; Hart v. Ware, 8 Tex., 115; Cain v. Mack, 33 Tex., 136; McKean v. Ziller, 9 Tex., 58.
    5. Parties.—Whether a minor entitled to remainder in property in controversy is or is not a proper party, the defendant will not be permitted to raise the question for the first time on appeal, unless he has been injured by want of necessary parties to the suit. Story’s Eq. PL, 140, 161, 766; Hughes v. Roper, 42 Tex., 125; Herndon v. Bremond, 17 Tex., 434.
    Appeal from. Bosque! Tried below before the Hon. F. P. Wood.
    Francis A. Green filed her suit in the district court of Bosque county, on the 12th day of June, 1871, against Emily E. Sears and her husband, J. L. Sears, J. W. Helm, a minor, and George W. Helm, guardian of said minor.
    After alleging citizenship of plaintiff in Kentucky and defendants in Bosque county, Texas, petition alleges in substance as follows, to wit:
    1. Defendant Emily E. Sears, previous to her marriage with defendant J. L. Sears, was the widow of Willis Helm, deceased.

      2. Plaintiff, Francis A. Green, is the widow of Hilton Green, deceased; by Milton Green she had three children, to wit, Isabella, Haney and Francis; Milton Green died in Kentucky in 1851, leaving an estate of some value, consisting of money and other property; said children were his only heirs; that Willis Helm, the. former husband of defendant, Emily E. Sears, was appointed guardian of the estates of said children, in Lincoln county, Kentucky, soon after the death of their father, and the estate went into his bands; on the 27th of March, 1859, Willis Helm, stated an account of his guardianship in said county, which showed an indebtedness of $2,902.14 to said minors; immediately after the statement of said account Willis Helm moved to Bosque county, Texas, without having made any final settlement of the estate of said minors, and brought with him their moneyas showed to be due on said account stated; Willis Helm invested $1,300 of this money in a tract of land in Bosque county, the field-notes of which are set forth in the petition, and $1,250 in certain personal property, also specifically described, taking the title in his own name, the land being bought from one Scott, and dated February 18, 1860; he took possession of the land and occupied it with his wife Emily until he died in 1865, leaving a will, which was probated, wherein this land and personal property were devised and bequeathed to said Emily for life, remainder to said minor, J. W. Helm, said Emily being executor, and not required to give bond, and having power to sell any of the property; Emily took possession under said will, and now has possession, and is claiming the property thereunder.
    3. All of said minor children died during their minority, and the plaintiff, Francis A. Green, as their mother, is their only legal heir..
    4. Said Willis Helm never paid any part of said money due on his settlement made in 1849, but that in 1865, James Bently, one of the sureties on his guardian bond, paid a subsequent guardian $750, ■ and there now remains due from Willis Helm’s estate the sum of $4,660.49.
    ■ 5- Petition alleges plaintiff is the owner of said land and personal property, sues for the same, and prays for a decree divesting title out of defendants and investing it in plaintiff, and for general relief.
    8. On the 6th of October, 1873, plaintiff amended her petition, alleging the value of the rents of the property to be §1,000 annually, and prays judgment for rents.
    1. All the defendants demurred to the original petition June 4,1872, and for special exception say the petition is duplicitous, in seeking to recover both the property and the money, and so far as the suit was for money the claim was not probated according to law.
    Defendants filed, at the same time, general denial and a special answer which constitutes no defense.
    2. On June 5,1872, defendants filed a separate answer, on which no issue was raised, and presented no defense, except so much thereof as charged that defendants had taken care of the stock and other property, and should be paid therefor a certain sum—§300.
    At the February term, 1874, of the Bosque court, the case was called for trial. The only minute of the court at that term reads thus:
    “ Francis A. Green v. J. L. Sears et als. (217).
    “In this case the jury having returned answers to issues submitted, which are received by the court, this cause by agreement of counsel in open court is continued until the next term of this court, for the consideration by the court of the legal questions involved, before entering a decree herein on the facts found by the jury.”
    At the succeeding term of the court the following judgment was entered on the minutes:
    “Francis A. Green v. J. L. Sears et als. (217).
    “ This cause coming on to be heard on the —— day of February, 1874, at the last term of this court, the plaintiff in person and by attorneys, and the defendants J. L. Sears and Emily E. Sears in person and by attorneys, came, and answered they were ready for trial; and George W. Helm, guardian of James Willis Helm, came not, but wholly made default; and thereupon came a jury of good and lawful men, to wit:

      “ B. G. Childress and eleven others, who were duly and legally impaneled and sworn to try this cause, and who, after hearing the pleadings read, the evidence adduced by the parties, the argument of counsel, the charge of the court, and the special issues made up under the direction of the court, and submitted to them by the court, to be answered by the jury, retired for deliberation, and afterwards returned into court their verdict, being the answers to the several issues so submitted by the court, which verdict and answers were received by the court and area part of the record; and by agreement of counsel, in open court, it was ordered that this cause be continued until the next term of this court, for consideration by the court of the legal questions involved, before entering a, decree on the facts found by the jury. *
    “It is therefore on this, the-day of June, A. D. 1874, ordered by the court, that a decree be now entered on said verdict and answers of the jury; and it is considered, adjudged and decreed by the court that on all the facts found by the jury the law is with the plaintiff, and that Francis A. Green do have and recover of and from J. L. Sears and Emily E. Sears, his wife, and from James Willis Helm and George W. Helm, his guardian, the land sued for (describing it in the decree). It is further ordered, adjudged and decreed by the court, that Francis A. Green, plaintiff, do have and recover of and from the defendant J. L. Sears the sum of $1,264, for which execution may issue.” Then follows judgment for costs.
    On June 9,1874, defendants, Sears and wife, made motion for new trial, and the minutes of the court show no action of the court on the motion.
    A statement of facts was filed and approvéd February 13,1874. The same statement was re-signed by counsel and approved June 11,1874.
    Defendants,-Sears and wife, filed petition for writ of error the 10th of August, 1874, gave bond the,same day, and plaintiffs were duly cited to answer the writ.
    The foregoing excerpt from the brief of the plaintiff in error states sufficiently the nature and object of the suit.
    There is no action of the court upon the demurrer to the petition of the plaintiff, nor any bills of exception in the . record.

      Walton, Oreen & Hill and Sleeper, Jones <& Kendall, for plaintiffs in error.

      L. O. Alexander,'for defendant in error.
   Quinan, J.

The assignments of error are as follows in substance:

1. That the record does not show that a jury of twelve men were impaneled to try the case.

2. This assignment is abandoned.

3. That the verdict does not appear upon the minutes of the court.

4. This assignment is substantially the same as the preceding.

5. That the judgment does not show on what account it was rendered; that if for cattle it should have been in the alternative!

6. That the record does not show that the special issues were made up under'the direction of the court.

7. The seventh assignment is substantially the same as the third and fourth.

8. That the judgment of the court is not in accordance with any verdict of the jury.

9. That the statement of facts does not warrant any judgment in favor of plaintiff.

10. That the defendants were entitled to a new trial for the reasons set forth in their motion.

We will consider these assignments briefly in the order in which they are made.

The first assignment is not well taken. The objection is frivolous. The transcript recites that “ a jury came of good and lawful men, to wit, B. G. Childress and eleven others, to try the cause,” and this is sufficient. There was no necessity that the names of all the jurors should be set out in the record. If the- entry at the February term was insufficient, the entry at the subsequent term amends it, and this the court had power to do. Clark v. Davis, 7 Tex., 560; Johnson v. Smith, 14 Tex., 412.

The third, fourth and seventh assignments of error raise the question whether the special issues submitted to the jury, and the answers of the jury thereto, must be incorporated in the minutes of the court.

It is undoubtedly proper that the issues and the verdict should be entered in the minutes. It is the invariable practice, so far as we are advised, and ought to be adhered to. They constitute an important part of the proceedings in the case, and ought assuredly to be entered in the record of the proceedings of the court; but we are not prepared to say that the issues submitted and the answers of the jury are any the less a part of the record, because not recorded in the minute book. In the present case the minutes do recite “ that the special issues made up under the direction of the court were submitted to them by the court to be answered by the jury, and that afterwards the jury returned into court their verdict, being the answers to the several issues so submitted by the court, which-verdict and answers were received by the court, and were a part of the record.” In the return of the clerk to the certiorari issued to perfect the transcript, the special issues are copied, and an indorsement on the back: “ Special issues submitted by and under the direction of the court. F. P. Wood, Judge.” The verdict of the jury is also set out signed, “ R. G. Childress, Foreman.” And the certificate of the clerk attests that these special issues and findings of the jury “appear of record now on file in my office.”

What were the special issues submitted, and what the answers of the jury thereto, is thus, we think, abundantly identified, and that they were made a part of the record, and are such, in fact, is certified to us in the only way it could be certified — by the custodian of the record. We are not advised of any law which imperatively requires that the issues and verdict can be recorded only in the minute book in civil proceedings. If the omission so to do is irregular, it is not such error as should deprive the plaintiff of the benefit of her verdict and vitiate the proceedings. The fifth assignment, that the judgment does not show on what account it was rendered, and that if for cattle it should have been in the alternative, is not well taken. It is not necessary to recite the facts in the judgment. The answers of the jury to the issues presented them are sufficient to support a judgment for $1,200 for rent (balance of amount over repairs), and for $120 for cattle sold, and $24 for two cows and calves sold; but Sears is allowed $100 for taking care of the cattle, which deducted, the amount of the judgment should be for $1,244, instead of $1,264. The plaintiff having remitted the sum of $20, the judgment for the residue is not unsupported by the answers, and the objection made, that the judgment should have been for cattle remaining in possession of the defendant, or in the alternative, does not apply, for there is then no recovery except for cattle sold. Hoffman v. Bowen, 17 Tex., 507; Cook v. Hancock, 20 Tex., 3; Hamilton v. Ward, 4 Tex., 356.

The sixth assignment of error is not supported by the record. The judgment recited that the issues were made up under the direction of the court.

The seventh and eighth assignments we have already considered under the previous assignments.

The ninth assignment of error questions the sufficiency of the facts proven to warrant the judgment.

The verdict of the jury was returned at the February term, 1874. The motion for a new trial made in this case was not filed until June 6, 1874, and it does not appear to have been called to the attention of the court, and was never acted upon. We must therefore consider it as waived. It is as if it had never been made. It cannot be considered for any purpose, and the defendants below acquire no right because of it. It is true that in Mason v. Russell, 1 Tex., 721, Lipscomb, J., intimates the opinion that a motion not granted would be considered as overruled; but this expression of opinion was not acted upon in that case, and was not necessary to its decision. In Foster v. Smith, 1 Tex., 70, the court say: “Ho judgment ought to be reversed in this court merely on the ground that the verdict was not supported by the testimony unless a motion had been made in the court where the verdict was rendered, and, overruled.” And in Cotton v. The State, it is'said: “ The rule announced in this case (Foster v. Smith), it is believed, has been observed to the present time, and it is not intended to question its correctness in civil cases.” In Hart v. Ware, 8 Tex., 115, it is said that where there was no motion for a new trial the judgment would not be reversed on the ground that the verdict was not warranted by the evidence, and this is the settled law of the court. Cain v. Mack, 33 Tex., 136; Pas. Dig., 1473; McKean v. Ziller, 9 Tex., 58; Reynolds v. Williams, 1 Tex., 312.

[Opinion delivered December 20, 1880.]

We conclude that the defendants, by a motion for a new trial made at a subsequent term to the rendition of the verdict, and never called to the attention of the court and never acted'upon, have not placed themselves in a position to be entitled to a revision of their ca!se upon the sufficiency of the testimony to'warrant the verdict.

The tenth assignment of error, for the reasons just stated, is not well taken. They were not entitled to a new trial.

It is insisted that there is fundamental error in not making the minor, J. W. Helm, a party, and in afterwards rendering-a decree against him.

This point is first raised in this court upon appeal. It, was not objected in the court below, nor is it assigned for error. And the guardian of the minor does not appeal. The objection is made by Sears and. wife.

If the minor was not properly made party, the decree against him cannot affect his interests. Whether, as entitled in remainder to the property in controversy, he was a necessary party, may admit of some question. Story, Eq. PL, 140, 161, 766. But it is not perceived in what way the interests of Sears and wife are injuriously affected by the judgment against the minor, and unless injury has resulted to them therefrom they cannot now for the first time be heard to complain. Hughes v. Roper, 42 Tex., 125; Herndon v. Bremond, 17 Tex., 434.

We conclude that the judgment should be affirmed for the amount rendered, less the sum remitted, at the costs of the defendants in error.

Affibmed.