author: RANDOLPH, J.

text:
    KREIS et al. v. KREIS et al.
    No. 3532.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 4, 1931.
    Rehearing Denied March 18, 1931.

      Williams & Bell, of Childress, for appellants.
    E. E. Diggs, of Childress, for appellees. ,
   RANDOLPH, J.

This was a suit by appellees against' appellants, instituted in the district court of Chil-dress county. Erom an adverse judgment, the 'defendants below, appellants here, have appealed.

The plaintiffs, Arthur B. Kreis, Ruth Kreis Robertson, joined by her husband, J. C. Robertson, Emeline Topsy Kreis Smith, joined by her husband, A. R. Smith, sued the defendants, Lizzie Kreis, Henry L. Kreis, Benjamin Kreis, Bessie Kreis, Annie Kreis Murphy and husband, William Murphy, Mary Kreis, Herman Kreis, Ruminy (or Minnie) West, her husband, A. West, and Albert K. Whitesides.

The plaintiffs’ petition consisted, first, of a formal action of trespass to try title; and, second, in the alternative, a special plea setting up substantially as follows: That the plaintiffs, except the husbands of the .two named therein, were the children and all the children of Arthur B. Kreis and his wife¡ Tolitha Kreis, both deceased, and 'that the defehdant Lizzie Kreis is the surviving wife of D. E. Kreis, deceased, and that defendants Henry L. Kreis, Benjamin Kreis, Bessie Kreis, Annie Kreis Murphy, Mary Kreis, and Herman Kreis, are the children and all the children of D. E. Kreis, deceased, and his surviving wife, Lizzie Kreis; that Ruminy West is a sister of D. E. Kreis, deceased, and that defendant Albert K. Whitesides is the lessee of part of the lands in controversy; that J. M. Kreis and his wife, Minerva B. Kreis, are both deceased, and were the father and mother of said D. F. Kreis, deceased, Arthur B. Kreis, deceased, and Mrs. Ruminy West, one of the defendants herein, and that the three last named were the children and all of the children of said J. M. Kreis and Minerva B. Kreis. ,

Plaintiffs further alleged in said petition that J. M. Kreis and wife, Minerva B. Kreis, were, during the year 1898, possessed of certain community property, including the lands ■and property in controversy,- all situated in -Childress county, and. that during said year J. M. Kreis made advancements to D. E. Kreis and Ruminy West, two of their children, and that such advancements were made with the .advice and consent of his wife, Minerva B. Kreis; that at that time Arthur B. Kreis, the third child, was about 16 years of age, and received no part of the estate of his father; that on the 19th of May, 1898, the said J. M. Kreis made and executed his. will, whereby he gave to his third child all of his estate, both real and personal, of which he should die seized and possessed and which he would be entitled to at the time of his death, and in said original will appointed his oldest son, D. E. Kreis, as sole executor; that by codicil to said original will, dated ■ November 10, 1899, it was provided by the said testator that Arthur B. Kreis should, upon the death of the testator, come into the full control of the property bequeathed and devised by said will, and without probate; that on the 19th day of October, 1901, the said J. M. Kreis made a second codicil to his will by which he provided that his wife, Minerva B. Kreis, should have one-half interest in the property at his death to hold unless •she remarried, when it should then revert to Arthur B. Kreis.

Plaintiffs further alleged that it was the intention of the said J. M. Kreis by his will and codicils to dispose of all of the community estate of himself and wife, Minerva B. Kreis, and that she knew and approved of same and acquiesced therein and accepted under the will. It is also alleged in said petition that after the death of J. M. Kreis, which occurred on or about the 2d of May, 1902, said will was duly probated upon application of Arthur B. Kreis, by the county court of Chil-dress county, Tex., and in this connection plaintiffs allege that, in entering the will ahd codicils on the probate records of Childress county, the clerk incorrectly wrote the same thereon and' particularly incorrectly transcribed the second codicil thereto, and in this connection also plaintiffs alleged that said incorrect entry of the record was in some way fraudulently procured by D. F. Kreis, and that in fact all of the lands which were the community property of J. M. Kreis and wife passed by the provisions of said will to Arthur B. Kreis, subject only to a life estate in one-half thereof to Minerva B. Kreis; that Arthur B. Kreis died intestate in Uvalde county, Tex., on or about the 19th, of May, 1910, and that the said Minerva B. Kreis died in Uvalde ‘ county on or about the 14th of December, 1917; that subsequent to the death of Arthur B. Kreis, his surviving wife, Toli-tha Kreis, was married to one McGee, and that she died on or about the 14th of July, 1915; that, shortly after the death of Arthur B. Kreis, his brother, D. P. Kreis, on the 10th of July, 1910, made application to the county court of Uvalde county to be appointed as administrator of said estate, and was so appointed and qualified and gave bond, with A. West and J. J. Taylor as his sureties, and that said administrator returned into court an inventory and appraisement of the estate of said Arthur B. Kreis wherein a part of the lands in controversy were listed as belonging to said estate, but that said inventory and appraisement was afterwards amended and made to show that the said Arthur B. Kreis only owned a half interest in the land and that the other half interest was owned by Minerva B. Kreis, who was the surviving wife of J. M. Kreis; further, that said amended inventory and appraisement was fraudulently made and filed by D. E. Kreis.

Plaintiffs further alleged that certain acts on the part of D. E. Kreis in connection with the handling of said estate were fraudulent and fictitious, and that D. E. Kreis, on the 30th of August, 1911, and while he was acting as -the administrator of the estate of Arthur B. Kreis, fraudulently procured from his mother, Minerva B. Kreis, who was also the mother of Arthur B. Kreis, a warranty deed for the recited consideration of $4,000 paid, conveying to him (D. E. Kreis) an undivided half interest in the rural lands in question, which said deed was duly recorded in the deed records of Childress county; further, that said consideration was not, in fact, paid, and that said deed was without consideration; that said Minerva B. Kreis was precluded from executing said deed and conveying said property for the reason that she had accepted under the will of J. M. Kreis, her husband, which will bequeathed unto Arthur B. Kreis the whole of said property, and that said deed was void and conveyed no part of said land to D. E. Kreis.

Plaintiffs further alleged that on May 23, 1914, D. E. Kreis, as such administrator, made application to the-county’court of Uval-de county, the court in which said administration was pending, to sell the alleged half interest in the land belonging to thé-estate of Arthur B. Kreis for the purpose of paying alleged indebtedness against said estate aggregating $6,347.13, of which sum $4,499.60 was alleged to be indebtedness due to Minerva B. Kreis; that upon said application the court entered an order to sell said land for such purposes and thereafter a sale was reported to A. West and was approved and deed ordered executed in consideration of the sum of $4,304, and that said deed was so executed, reciting the payment of said money, and same is duly recorded in the deed records of Childress county; that ’thereafter the said A. West, joined by Minerva B. Kreis, executed and delivered to D. E. Kreis a deed to said half interest in said land for a recited consideration of $5,000, when in truth and in fact A. West did not pay unto D. E. Kreis the consideration recited in said deed and the same was without consideration, and in truth and in fact D. E. Kreis did not pay to A. West and Minerva B. Kreis the consideration recited in the last-mentioned deed, but that each' and all of the transactions were fraudulent and were a part of the conspiracy on the part of D. E. Kreis and A. West to acquire the title to said lands for D. E. Kreis and to deprive the plaintiffs of the title thereto. Plaintiffs further alleged .that Arthur B. Kreis was not indebted to Minerva B. Kreis in any sum, and that the claim of $4,499.60, for which said land was sold, was fraudulent, fictitious, and void.

Plaintiffs further alleged that about August 28, 1912, and while the administration upon the estate of A. B. Kreis was still pending in Uvalde county, Minerva B. Kreis, by a plea of intervention, in said case, set up a claim of a three-fourths interest in said land, claiming her community interest of one-half thereof and claiming an additional one-fourth of the whole under the provisions of the will of her husband, J. M. Kreis, it being her contention that J. M. Kreis.purported to dispose only of his community half of said property and that by the provisions of his will he bequeathed to her one-half thereof with the provision that, if she should subsequently marry, it should revert to Arthur B. Kreis, and it is alleged that this claim on the part of Minerva B. Kreis was procured by D. F. Kreis.

Plaintiffs further, by definite and specific allegations, alleged that each and all of the accounts against the estate of Arthur B. Kreis, deceased, which estate was pending in the county court of Uvalde county, and which accounts were reported by the administrator to have been allowed and paid, were fraudulent, fictitious, and void, and further that the claims allowed against said estate by the court for which said half interest in said lands was sold, were fictitious and void, and did not constitute valid claims against said estate, although allowed by the court.

Plaintiffs further alleged that Minerva B. Kreis died leaving a will by which a portion of the town property involved in this litigation was devised and bequeathed to Ruminy West, and that said will on the part of Minerva B. Kreis was procured by the undue influence of her daughter, Ruminy West, and by D. E. Kreis; that a certain judgment entered in the district court of Childress county, at the May term, 1927,. in cause No. 1504, styled Emeline Smith et al. v. Henry L. Kreis et al., whereby the title of the defendants in 'that suit, who are also defendants in this suit, was quieted, was obtained by fraud and is- of no force and effect.

The defendants Ruminy West and husband filed their, disclaimer to all of the rural lands described in the- plaintiffs’ second amended original petition and involved in this litigation, and each and all of the other defendants filed their disclaimer to the town property in question.

Defendants also filed in due order of pleading a plea of former .judgment and their answer containing general and special .exceptions, .general denial, and plea of not • guilty, and specially pleaded their title to a half interest in the rural lands obtained -through the sale thereof under the order and judgment of the probate court of Uvalde county, made on August 19, 1914, and which said sale was approved by the judgment of said court, and which said judgment became final, no appeal being taken therefrom, and that plaintiffs did not, within two years thereafter, or within two years after they became of lawful age or had their disabilities removed, in any manner appeal from said judgment or bring any direct proceedings in said probate court to revise and correct said judgment. Defendants further pleaded the three-year statute of limitation, and further that the plaintiffs had theretofore, with the knowledge of the filing of suit No. 1504 in the district court' of Childress county and with knowledge of the entry of judgment therein, accepted the benefits accruing to them under said suit and judgment, particularly the said Emeline Topsy Kreis Smith, with full knowledge of the entry of- said judgment, had accepted from her attorney her pro rata part of the money paid by said defendants in consideration, of the entry of said judgment and quieting of said title, and that she and they had become estopped to deny the authority of said attorney to bring and maintain said suit for them and to agree to a settlement thereof and the entry of said judgment; further specially pleading that the matters and controversies involved in this suit have heretofore been adjudicated in cause No. 1504, styled Emeline Smith et al. v. Henry Kreis et al., in the district court of Childress county, Tex., and that said judgment had become final, and specially pleaded that there had. been an accord and satisfaction of the controversies theretofore existing between the plaintiffs and defend- ' ants .relative to the title to the rural property described in plaintiffs’ petition.

When the case was called for trial on June 16, 1930, the plaintiffs, with leave of the court, filed a trial amendment to their second amended original petition, wherein they set up that the will and codicils thereto of the said J. M. Kreis were not recorded in the probate minutes of Childress county, but were recorded in the Will Records thereof at pages 14 and 15, and that the codicil, dated October 19, 1901, was incorrectly and erroneously entered in said Will Record by the clerk, and made to read so that Minerva B. Kreis should hold a half interest in said property and “to have Dave manage, and that it shall divert back to Arthur Kreis, my son, in case she marries again, when this will shall be of no effect, and said property shall go back to Arthur Kreis”; it being specially pleaded that such entry of said codicil as a part of said will in said will record was incorrect and erroneous and was procured fraudulently by D. F. Kreis.

In answer to this trial amendment, the defendants specially pleaded that said trial amendment was an attempt to construe the will, of said J. M. Kreis, deceased, and was barred by the four-year statute of limitation.

The plaintiffs, with leave of the court, filed their second trial amendment wherein the plaintiff Emeline Topsy Smith, joined by her husband, tendered into court to the defendants the sum of $466.75, being the amount, with interest thereon, which she had theretofore accepted from her attorney, R. H. Tem-pleton, as her pro rata part ot the money paid by the defendants to the plaintiffs in consideration for the entry of the judgment in cause No. 1504 in the district court, of Childress county, by which judgment defendants had the title to the rural lands quieted as to the plaintiffs’ claims.

The defendants specially pleaded that said •tender came too late, as the said Emeline Topsy Smith had theretofore testified that she had accepted the same as her portion and interest in the said lands.

Other statements of the pleadings and evidence will be made later where necessary in the discussion of the questions raised on this appeal.

It was admitted that the property in question was the community property of J. M. Kreis and his wife, Minerva B. Kreis, and that they are the common source of title between the parties hereto.

Appellants’ first proposition presenting alleged error is as follows: “The defendants Lizzie Kreis, Henry L. Kreis, Benjamin Kreis, Bessie Kreis, Annie Kreis Murphy and husband William Murphy, Mary Kreis, Herman Kreis, and Albert K. Whitesides, neither having nor claiming any right, title or interest in the town property sued for by plaintiffs, each having filed their disclaimer thereto herein, and Ruminy West and her husband A. West, who are the remaining defendants, neither having or claiming any right, title or interest in and to the rural property sued for and having disclaimed thereto and there being no community of interest m said property as to the several defendants, there was a misjoinder of causes of action and parties herein.”

It will be observed, as stated above, that •the plaintiffs’ petition consists of a formal action of trespass to try title and an alternative plea setting out at great length, first, that the will of J. M. Kreis attempted to dispose of the community property of himself and his wife, Minerva B. Kreis, to Arthur B. Kreis, and that the wife accepted under the will and thereby parted with her community interest in the same by estoppel. If this was true, the other children, the D. F. Kreis heirs and Mrs. Ruminy West, were necessary parties to the determination of this question. Whatever may have been the rights of the defendants as between themselves, the plaintiffs were entitled to have all of the parties who could claim by inheritance as parties to the suit. Again, the second count of plaintiffs’ petition charges a conspiracy between D. F. Kreis and A. West to vest the title to the several lands to D. F. Kreis and that by a will fraudulently obtained other property in A. West and Ruminy West. Further, the second count alleges a common source of title of the plaintiffs and defendants, and, their claims all originating from that source, •there was no misjoinder'of parties or of subject-matter. The allegations of the petition abundantly show the necessity for making all of the defendants parties and permit the suit for the various tracts of real estate in controversy being brought in the one suit, and the defendants cannot defeat the jurisdiction of the trial court by filing disclaimers of ownership to separate tracts.

The Texas courts, there being no distinction between the forms of action at law and in equity, where there is no Code provision expressly designating what causes of action may be joined, such matter is left very largely to the discretion of the trial court, and the tendency of our courts has been to permit a joinder of different causes and prevent a multiplicity of actions wherever possible. 1 C. J. 1074, § 224.

In the case of Cobb v. Barber, 92 Tex. 309, 47 S. W. 963, 964, the Supreme Court lays down the rule that “our system does not favor the bringing of a multiplicity of suits and therefore permits all causes of action growing out of the same transaction to be joined and all interests in the same property or fund to be litigated and the equities of the parties adjusted in the same suit.

See, also, Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. W. 1121; Clegg v. Varnell, 18 Tex. 294; Alford v. Williams, 41 Tex. Civ. App. 436, 91 S. W. 636.

A suit to recover possession of land may be joined to a suit to set aside a judgment. Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61 S. W. 541.

“It is a general rule that several causes may be joined if the rights of action accrued to the plaintiff or plaintiffs and against the defendant or defendants in the same capacity, provided the causes are so related that an investigation of one necessarily develops the facts with reference to the other, or at all events, where the matters are of the same nature, the relief sought is similar and they can be heard together without confusion or uncertainty.” 1 Tex. Jur. 660, § 45.

Causes against several defendants may be joined if they affect all of the defendants, even though different judgments are sought against the several defendants. Id. 660, § 45; McCormick v. Blum, 4. Tex. Civ. App. 9, 22 S. W. 1054, 1120.

Where the entire controversy grows out of the same transaction and depends upon the same evidence, there can be ' no valid objection to the joinder or inclusion of two tracts of land in the same suit. Murrell v. Wright, 78 Tex. 519, 15 S. W. 156.

“ ‘A leading principle in our law and system of procedure is to avoid a multiplicity of suits and to settle in one action the respective claims of parties when they are of such a nature as to admit of adjustment in that mode.’ Thomas v. Hill, Administrator, 3 Tex. 270; Fitzhugh v. Orton, 12 Tex. 4.” Hudmon v. Foster (Tex. Com. App.) 231 S. W. 346, 348. See also Milam v. Hill, 29 Tex. Civ. App. 573, 69 S. W. 447.

We are of the opinion, therefore, that the petition does not show a misjoinder of parties or of subject-matter, and therefore overrule ■ ■the appellants’ first proposition.

The appellants’ second proposition is as follows: “The allegation in plaintiffs’ second amended petition that Minerva B. Kreis accepted under the will of J. M. Kreis is but a conclusion of the pleader and is insufficient as an allegation of acceptance in that it fails to allege and set forth the acts on her part which would constitute such acceptance, as well as the benefits she received under the will inconsistent with her rights‘as community survivor and that she knew the value of such estate, its rents and revenues, and further, that with full knowledge of her rights, after the death of her husband, she either ex.pressly accepted under the will or by her acts and conduct manifested ah intention to do so, and defendants’ special exceptions to said petition upon said ground should have been sustained.”

That portion of the plaintiffs’ second amended petition, which relates to such acceptance under' the will, is as follows: “That it was intended in said will and codicils and by the conveyances and bills of sale aforesaid and they did, in fact, dispose of all of the community property of said J. M. Kreis and his wife Minerva B. Kreis, and she knew and approved of .the same and acquiesced therein, and accepted the conveyances to her separate estate as her part of the community estate because of the love and affection for her said son Arthur and because the other two children had received their just proportion of the whole community estate of their father and mother by the conveyances and bills of sale to them above named, and agreed and consented that said will be probated and at all times prior to just a short time before her death, agreed to and did take under said will as above named and observed and was bound by all of its provisions that Arthur should have the whole community estate of .herself and husband, except a life estate in one-half interest as provided in the last named codicil, and she continued to lWe with her said son Arthur until his death, as one of his family and shared with him the earnings and rents of all of the property bequeathed by her husband and she stated frequently that she did not claim anything in said estate except a life interest and she managed and controlled her half interest in said property during her life to the exclusion of her said son Arthur B. Kreis and used the same for her own special benefit and declared that she wanted Arthur to have it all at her death as provided by the will of her husband' J. M. Kreis, deceased.”

If we concede the rule to be as alleged by appellants, that a judgment cannot be based upon a pleaded conclusion of law not warranted by the facts pleaded, we cannot apply such rule to the pleadings here in question. The pleading above quoted may be in part a conclusion of fact, but the very pleading in question also alleges the facts upon which the conclusion is based and the benefits which operated to cause Mrs. Minerva B. Kreis to accept the will. It is also alleged that it was intended by said will and codicils that same did, in fact, by said conveyances and bills of sale, dispose of all of the community property of said J. M. Kreis and Minerva B. Kreis, and that said Minerva B. Kreis knew and approved of same and acquiesced therein and accepted same as her part of the community property, because, first, her love for her son Arthur, to whom said community estate was willed; second, because the other two children, D. P. Kreis and Rniminy West, had already received their just proportion of the whole community estate of their father and mother, and that at all times prior to her death, Minerva B. Kreis agreed to and did take under the will and was bound by the terms of the will.- It is apparent from the language of this part of the plaintiffs’ petition that it is charged that Mrs. Kreis, the wife, was so intimately acquainted with the property sought to be disposed of by the will that the trial court and this-court are authorized to conclude that Mrs. Kreis knew the actual value of the -property disposed of under the will, and that later she appropriated her part of the rents accruing from her life estate willed to her and thereafter resided with her son Arthur B. Kreis until his death. It is charged hy the petition that the will and codicils of J. M. Kreis were probated in Chil-dress county in 1902, and thereafter Mrs. Minerva B. Kreis lived with her son Arthur, as stated, until his death in 1910. The petition on its face is sufficient. Caldwell v. Haley, 3 Tex. 317; Townes on Pleadings (2d Ed.) 407 et seq.; Negociacion Agricola y Ganadera de San Enrique v. Love (Tex. Civ. App.) 220 S. W. 224.

We therefore hold the petition sufficient in point of allegation.

That J. M. Kreis by his will disposed of all of the community property of himself and his wife is not apparent on the face of the will. The will and codicil No. one are as follows:

“The State of Texas, County of Childress.
“Know all men by these presents: That I, J. M. Kreis, of said State and County, being of sound mind and memory and being desirous and anxious to settle my worldly affairs, make this my last will and testament, hereby revoking any and all former wills by me made.
“First: I give, bequeath and demise to my minor son Arthur Kreis all of my estate both real and personal of which I shall die seized and possessed or to which I shall be entitled at the time of my decease.
“Second: I nominate and appoint my son D. P. Kreis to be the sole executor of this will and direct that no security shall be required of him.
“Third: It is my will that no action shall be had in the county court in the administration of my estate, other than to prove and record this will and to return an inventory and appraisement of my estate, both real and personal.
“In Testimony whereof I have hereto set my hand, this 19th day of May, A. D. 1898.
“J. M. Kreis.”
“County of Childress, State of Texas. Nov. 10, 1899.
“After reconsidering my will I want to change that part of it that D. P. Kreis is to administer on Arthur Kreis part of property. I want Arthur to have full control of it to do as he pleases with it, without probate 'as it is all divided now so my last will is that Arthur is to come in full control of said property after I am dead without any constraint on him to do as he pleases with it. So I hope and pray that this request may be heeded as I think for the best of all concerned. I malie this change for reasons best known to myself. So I hope it will be done according to my wishes. I leave this in this book that all may know what my last request is & do as I have dictated to which I affix my name this -day of our Lord, Nov. 10,1899.
“J. M. Kreis.”

So far as the will on its face discloses, there is no language used by the testator which indicates any intention to dispose of his wife’s community interest. The language, “all of my estate * * ⅜ of which I shall die seized and possessed or to which I shall be entitled at the time of my decease,” and the further reference therein to “my estate,” can only refer on its face to the property owned by him.

Under the statutes of Texas defining community property, the surviving spouse has an undivided one-half interest in the entire estate, not as heir, but as owner. Slavin v. Greever (Tex. Civ. App.) 209 S. W. 479. Where the husband’s will disposed of “my estate,” it was his interest alone which was disposed of. Slayin v. Greever, supra.

The Supreme Court of Texas, in the case of Avery v. Johnson, 108 Tex. 294, 192 S.W. 542, 544, Chief Justice Phillips for that court says: “Where a testator owns a partial interest in land and the disposal of the land is the subject of his will,* it is only where the intention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is to be construed as the disposition of more than his own interest, putting the co-owner of the land to his election whether he will take under it because of its conferring upon him, by other provisions, some benefit from the testator’s estate which, but for the will, he would not receive. The law presumes that no man will attempt a testamentary disposition of the property of others. It deprives no man of his property merely by conjecture. Therefore, for a will to be given the effect of an attempted disposition of property not owned by the testator, it is required that the language of the will conclusively evidence such a purpose. In such cases it is not sufficient that the will may be construed as revealing such an intention. It is necessary that it be open to no other construction” — citing a number of authorities.

In the case at bar, the will of J. M. Kreis is not ambiguous. He was charged with a knowledge of the law which gave him only a half interest in the community property, and the language used by him, both in the will and in the codicils, presents no ambiguity and cannot be given any other construction save that he was making disposition of only his own property. In codicil No. 2 he uses the language, “I have reconsidered my will and changed it to this, that my wife shall hold one-half interest in said property,” referring to "the property described in the will, and providing that it revert to his son Arthur in the event his wife remarried. The testator was of foreign birth and raising, and we give the interpretation to his language in words of common use.

In the ease of Avery- v. Johnson, supra, the Supreme Court quotes from 2 Underhill on Wills, § 730, as follows: “If the testator’s language is cloudy or doubtful or ambiguous in meaning, so that it may be consistent with the intention of the testator that the -person who has an interest in the property which he attempts to dispose of shall retain that interest and shall also hold what the will gives him, he will not be put to his election.”

In the case at bar, the benefit received by Mrs. Kreis under the first codicil was only such as would come to her anyway by her ownership of one-half of the estate. On the death of her husband she continued to reside with her son Arthur until his death. She shared equally with him in the rents and revenues of the property. This she was entitled to do under her right as owner of the one-half of the community property. She may have expressed herself as being desirous that Arthur should- get all of the estate, but such an expression was not a present acknowledgment that she had no interest as the owner of the one-half, but rather the expression of one who had an intention to see that this son did get it, especially in view of the fact that the other children had received their proportion of the community property.

However, be that as it may, the language of the will, not being ambiguous, and it clearly appearing that J. M. Kreis by said will intended only to dispose of his own interest in the community property, evidence of facts and circumstances offered in evidence in an effort to show an acceptance by Mrs. Kreis under the will was not admissible to give another meaning to the language of the will than its plain language warranted.

This disposes of the question of whether, or not the will disposed of other than the husband’s interest in the estate, and we hold that Mrs. Kreis was not put to an election by the terms of the will.

The questions of the validity of the judgment of the probate court of Uvalde county in the matter of the estate of Arthur B. Kreis, deceased, will now be considered. There can be no question that the attack launched against the judgment and orders of that court in this case is a collateral attack on a judgment rendered by a court of general and competent jurisdiction. Arthur B. Kreis was a resident of Uvalde county. He died in that county on May 19, 1910, intestate, leaving an estate consisting of lands in Uvalde and Childress counties, and there were debts owing by said estate; notice was given thereof as required by law.

These jurisdictional facts were sufficient to give that court jurisdiction to grant the administration. The required and statutory bond was duly given and the oath taken by the administrator. The proceeding at bar,, not being instituted in the county court in which the administration was granted, constitutes this proceeding a collateral attack .upon such orders, judgments, and decrees of the county court of Uvalde county. The attack made upon the orders of the probate court approving the various claims against the estate should have been made in that court for review, and the reason why it was not done, that the children of Arthur B. Kreis were minors and were ignorant of the proceedings in that court, cannot avail them to vest jurisdiction in the district court of Child-ress county. They must have invoked the jurisdiction of the probate court, the court rendering the judgment and entering the orders.

If the plaintiffs had sought to set aside the sale of land belonging to said estate and the proper allegations of the invalidity of the sale had been made, relief cannot be granted them for another reason. Their petition is not an effort to set aside the sale of the land, but only a declaration of the invalidity of certain orders and decrees in which they claim the invalidity of the matters passed on by the ^valde court. This, as stated, being a collateral attack on a judgment of a court of competent jurisdiction, the attack should have been made in time in that court.

Again, the attack on the sale under the probate proceedings because the administrator of the estate sold the land to A. West, his brother-in-law, and then .received a deed from said West to himself, is a badge of fraud which might entitle them, upon proper pleadings and proof, to set aside the sale, but the plaintiffs’ pleading and the relief sought by them is not a pleading to set aside the sale upon account of the administrator having purchased the estate, hut is an attack upon claims allowed by the Uvalde court, and neither of these attacks are followed by any prayer appropriate for relief. The plaintiffs’ pleading alleges that on the 23d day of May, 1914, said IX F. Kreis, administrator, made application to the county court of Uvalde county to sell the alleged undivided interest in the land last above named, owned by said estate, to pay claims in the aggregate sum of $6,347.13, of which said sum $4,499.60 was alleged to be an indebtedness to Minerva B. Kreis and that the administrator procured an order of the court to sell said land for said 'purpose and on the 11th day of June, 1914, and without any order of the court approving the sale, made a deed conveying to defendant, said West, an undivided one-half interest in said land for the recited consideration of $4,304 in hand paid, which said deed was duly recorded, etc., and that, after an order of the court approving said sale was made on the 17th of August, 1914, another deed was executed by tie administrator to West, wbicb was recorded in Childress county on November 20, 1914; and, further, that on the 9th day of November, 1914, before the filing for record of the last above named deed, said administrator caused and procured of said A. West and the said Minerva B. Eréis, to execute a warranty deed to him, whereby, for the recited consideration of $5,000 in hand paid, they purported to Convey to said D. F. Eréis said undivided one-half interest in said lands named; that in truth and in fact said A. West did not pay the consideration recited in said deed by said D. F. Eréis, administrator, to him, or any other sum or consideration whatever, nor did the said D. F. Eréis pay to said A. West and Minerva B. Eréis the consideration named in the' deed purporting to convey said-lands to him, or any other sum, but each and all of said transactions were fraudulent conspiracies on the part of said D. F. Eréis, aided and abetted therein by said A. West, to himself acquire the title to said lands; that in truth and in fact the said Arthur B. Eréis, father of the plaintiffs herein, was not indebted to Minerva B. Eréis in any sum whatsoever, and was never so indebted to her, and the alleged claim by her against said estate was fraudulent, fictitious, and void, and that, as heretofore alleged, said Minerva B. Eréis had never at'any time theretofore claimed the title or interest in said land, but on or about the -28th day of August, 1912, and after Tolitha Eréis, surviving wife of Arthur B. Eréis, etc. Conceding the facts to be as alleged, we cannot go into the matter of the sale of the administrator to himself for the reasons later-set out herein.

It is apparent from the allegations- quoted that the plaintiffs are attacking the validity of the’ claims against the estate of Arthur Eréis, deceased, a matter wholly within the jurisdiction of the probate court of Uvalde county, and that the purchase of the lands of the estate by the administrator is only menT tioned incidentally. No relief is sought by praying that the sale be set aside for the fraud of the administrator in purchasing indirectly what the law forbids him to do directly or any relief to declare such actions on his part void and of no effect. The only prayer for relief contained in the petition is the following: “Wherefore, all the defendants having been served with citations herein, and having answered, plaintiffs pray judgment for the recovery of the title and possession of all of the property hereinabove named; that they have their writ of possession; that all title be diverted out of the defendants and each of them; that plaintiffs have and recover their costs in this behalf expended and that they have all relief, bo.th general and special, to which they may be entitled, either in law or equity.”

As stated, the plaintiffs’ allegations do not assert that they are attacking the sale of the land by the administrator to himself on the ground that the law prohibits such sale and that same was absolutely void.

The rule is that a judgment in a probate court, within its jurisdiction, is presumed to have been regularly made and entered, and, until set aside in a proceeding commenced for the purpose -in the court which rendered it, is conclusive of the matters it determined. Tannery v. Pirtle (Tex. Civ. Aptp.) 19 S.W.(2d) 862, and authorities therein cited.

Applying this rule to the question raised by appellees that the claims upon which the sale, by the administrator of A. B. Eréis’ estate were based, we hold that it was witliin the jurisdiction of the county court to pass upon the very question as to whether or not such claims were due or were fictitious or void, and that court, having assumed to act in the matter of the sale and being a court of competent jurisdiction, its orders were not subject to collateral attack. That the plaintiffs’ suit is a collateral attack is beyond question.

The Supreme Court, in the case of Crawford et al. v. McDonald, 88 Tex. 626, 33 S. W. 325, 328, settles this question adversely to appellees. In that case the Supreme Court says: “The question, then, is, can this judgment of confirmation of sale, rendered by a domestic court of general jurisdiction of estates of decedents, in a matter to which its jurisdiction had attached by the granting of an application for an order of sale in a pending administration, be attacked by evidence of matters dehors the record? The proper .determination of this question on sound, legal principles is of the greatest importance, . since, on the one hand, great injustice may sometimes result to persons against whom judgments are asserted, by a rule precluding inquiry, even in a collateral attack, into, matters dehors the record affecting the validity of such judgments; while, on the other hand, if such evidence be allowed, no title held under a judgment of any court, however regular its proceedings appear, would be of much value, as such collateral attack can be made after any lapse of time, it not being an action or suit within the meaning of any statute of limitations, but merely a means of rebutting and destroying the effect of the judgment as evidence; and the attack, if successful, establishes the nullity of the judgment from its. inception, under which no one, however innocent, can acquire many of the rights which the court®, under settled rules of law, will protect where the judgment is attacked directly. The general rule is well established that a judgment rendered by a court even of general jurisdiction is void if it had, at the time of the rendition of the judgment, no jurisdiction of the person of the defendant or the subject-matter of the litigation. This principle is self-evident, because until the court acquires jurisdiction it has no power to proceed to investigate and determine private rights. Logically, it can make no difference as to the validity of the judgment whether the lack of jurisdiction of the person or the subject-matter appears from the face of the record or is made to appear by evidence aliunde; for if, for instance, no service was had upon the defendant, he not appearing in the case, the court, having no jurisdiction whatever over his person, is absolutely without power to bind him by an adjudication that he had been in fact duly served; and, logically, this want of power is the same whether the lack of jurisdiction appears on the face of the record or not. There is, however, another rule of law, equally well settled upon principles of public policy, which precludes inquiry by evidence aliunde the record in a collateral attack upon a judgment of a domestic court of general jurisdiction, regular on its face, into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition. Therefore it is well settled that, where a personal judgment has ¡been rendered against a defendant -by a domestic court of general jurisdiction, and under the same his property has -been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any service whatever upon him. Logically, the judgment is, in fact, void, -but on grounds of public policy the courts, in order to protect the property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose, of showing the invalidity of the judgment; and therefore, for all practical purposes, in -such collateral attack, the judgment is held valid. This rule is analogous to, and probably as important as, the rule forbidding the introduction of verbal testimony to vary or contradict the terms of a written contract, except in a proceeding instituted for the purpose of correcting, reforming, or annuling the same. These principles have long -been acted upon by this court as applicable to judgments of the district, probate, and justice courts and have become settled rules of .property in this state. Murchison v. White, 54 Tex. 78; Williams v. Ball, 52 Tex. 603 [36 Am. Rep. 730]; Brown v. Christie, 27 Tex. 73 [84 Am. Dec. 607]; Heck v. Martin, 75 Tex. 469, 13 S. W. 51 [16 Am. St. Rep. 915]; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682 [23 Am. St. Rep. 370]; Martin v. Burns, 80 Tex. 677, 16 S.W. 1072; Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778 [31 Am. St. Rep. 80].”

Every law which operates as a limitation in point of time in any respect causes injury to some one, but public policy demands that property rights of the great mass of the people -be protected and such judgment be free from attack from the expiration of a certain period of time. If such were not the provision, judgments could be attacked •long after the witnesses testifying to the facts upon which the judgment had been rendered had died. It is possible for such a judgment to be set aside when, in fact, it had originally been rendered upon overwhelming evidence.

The rule laid down in the Crawford Case by the Supreme Court has been uniformly followed by the courts of Texas.

“Where an administration has been properly opened in the county court upon the estate of a deceased person, the jurisdiction then attaches for the purposes of that administration. And in respect to the proceedings thereafter had in the course of such administration, as said1 in McNally v. Haynie [2 T. L. Rev.], ‘in respect to such matters, the inquiry is not one of jurisdiction as to the subject-matter, but as to whether or not the court has exceeded its legal authority in dealing with a subject-matter over which it has jurisdiction.’ ” Heath v. Layne, 62 Tex. 686, 691.

In the case of Emeline Smith et al. v. Henry L. Kreis et al., No. 1504, pending in the district court of Childress county, Tex., at the May term, 1927, in which the plaintiffs in that cause are the plaintiffs in this, the court Tendered judgment, a jury being waived, in favor of the defendants. It was recited in such judgment that the plaintiffs Emeline Smith, joined by her husband, A. R. Smith, Ruth Kreis and Arthur Kreis, by their next friend, Emeline Smith, appearing herein by and through their attorney of record, and came the defendants in person and by their attorney. The rendition of the judgment was attacked because of the following facts alleged: “That said judgment was and is fraudulent and void and of no force and effect in this: that the petition in this cause recites and alleges that the plaintiffs Arthur Kreis and Ruth Kreis are suing therein by their next friend Eme-line Smith; that said Ruth Kreis, now Ruth Kreis Robertson, was at the time of the filing of said suit and at the time of the entry of -said judgment an adult woman, over ⅜1 years of age, and aft said times Arthur B. Kreis was a minor and that said Emeline Smith was not authorized by them or either of them to bring said suit for them as their next friend, and they did not know Ithat they were parties to said suit and that said Ruth Kreis and Arthur Kreis did not know of any such suit being brought for them or in their behalf and it was done by the attorney of Emeline Smith without authority; that none of the plaintiffs in said cause No. 1504 had any knowledge of any such judgment being rendered until long thereafter, but that such judgment was entered by agreement between the attorney representing Emeline Smith and the attorneys representing Henry L. Kreis et al., the defendants, and without any authority from the plaintiffs or knowledge that same was being made and entered. That the attorneys for both parties, as plaintiffs are informed, agreed upon the sum of $1500.00 as a compromise settlement of the matters of litigation between them and defendants and that the defendants, on payment of said $1500.00, were to and did take judgment for the property in controversy. That the payment to plaintiffs’ alleged attorney, R. H. Templeton, of the said compromise sum of $1500.00, was without their knowledge or consent and that such agreement or compromise and settlement was made by said attorney without their knowledge and consent and without any authority from them.”

The jury found by their answer to special issue No. 9 of the court’s general charge that Ruth Kreis Robertson did not authorize R. H. Templeton to file suit in the district court of Childress county to recover the interest of said Ruth Kreis Robertson in the estate of her deceased father. The evidence abundantly supports this finding. The attorney named also testified to facts which show that he was not authorized to bring such suit for her. Again, the record discloses that Ruth Kreis was then a single woman, who was more than 21 years of age, and her appearance in a suit as plaintiff by next friend was. not authorized by law. As to Arthur Kreis, the brother of Mrs. Smith and Mrs. Robertson, he was a minor, and, if the suit was lawfully instituted in his behalf, certainly the attorney selected by his next friend, Mr's. Smith, had no authority whatever to compromise the rights of such minor and agree to enter a judgment against him.

As .to Mrs. Smith,' the jury found that she did employ the attorney to file the suit in which the judgment was rendered. It does not appear that Mrs. Smith knew of the compromise until after it was made, but that, after being made acquainted with the facts of the compromise, she accepted her part of the money paid on the compromise settlement and retained this money until some time during the trial of this cause, when she tendered it into court. On another trial, the trial court should instruct a verdict against Mrs. Smith on such acceptance and retention of her part of the settlement money.

The trial court submitted to the jury the following issue: “Special Issue No. 6. Do you find from a preponderance of the evidence that at the time D. F. Kreis paid to Minerva B. Kreis the sum of $4,000.00 and took from her a warranty deed to an undivided one-half interest in said land, the said D. F. Kreis knew that said Minerva B. Kreis had accepted and elected to take under the will of J. M. Kreis, wherein said land had been given to their said son Arthur B. Kreis¿ included the community interest of said Minerva B. Kreis?”

Under our 'holding that Mrs. Kreis was not put to an election by the terms and language of the will of J. M. Kreis, the answer to this question becomes immaterial. No issue was submitted to the jury as to the validity of this deed, nor can we say that any such issue, under the poverty of the evidence in this case, should have been submitted. But, on another trial, as the pleadings attack this deal and as it involves a disposition of Mrs. Minerva B. Kreis’ one-half undivided interest, if there is evidence sufficient to support it, the issue should be submitted.

For the reasons indicated, we reverse the judgment of the trial court and remand the case to that court for a new trial.

HALL, C. J., not sitting.


source: Caselaw Access Project

author: COBBS, J.

license: Public Domain

text:
    WOOLRIDGE et al. v. DIBRELL et al.
    No. 8560.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1931.
    Rehearing Denied April 1, 1931.
    Augustus McOloskey, of San Antonio, for appellants.
    J. B. Dibrell and P. E. Campbell, both of Seguin, for appellees.
   COBBS, J.

Appellants sued appellees in Bexar county to cancel and declare for naught certain written contracts, leases for oil in Guadalupe county, where the land is situated. It is alleged that the fraud was committed in Bexar county by the appellees in procuring the lease contracts. It was represented that the parties were undertaking to secure a simple power of attorney to represent the appellants, but not to lease the land. Among other things, it is alleged that on or about May 26, 1930, appellants received information that appellees were claiming that the instrument which appellants executed as a power of attorney was not in fact a power of attorney, but Was a mineral lease purporting to give James Dibrell an oil lease on one hundred acres of land in consideration of $10, and that he was trying to dispose of said mineral lease. That the pretended lease was made upon fraudulent representations as to the nature of said instrument and the purposes thereof, and without any consideration in fact or law, and that the $10 consideration mentioned has never been tendered or paid, and appellants had no idea at the time of its execution that the instrument was anything more than a power of attorney, as represented. The plaintiffs prayed: “That upon a trial hereof, that they have judgment setting aside and cancelling the purported oil lease which the defendants are offering for sale covering one hundred acres of the aforementioned land; that the temporary writ of injunction issued herein be made permanent and final and Plaintiffs further pray that upon a hearing hereof, any purported assignment or conveyance of any of the mineral rights, royalties or other equities of any of the Plaintiffs herein beyond 1 16/100 interest be set aside, cancelled and held for naught, and Plaintiffs further pray that such oil and mineral lease and purported assignment of mineral rights, royalties or other equities of the Plaintiffs be set aside, cancelled and held for naught; that Plaintiffs recover herein for all costs of court and for such other relief, general and special, as they may be entitled in law and in equity, and in duty bound will ever pray.”

The venue to this suit was, on account of the fraud committed by appellees, in Bexar county. Article 1995, subd. 7, Vernon’s Ann. Oiv. St. It makes no difference where the land is situated in cases where the alleged fraud was committed in a different county. Venue lies where the fraud is committed. Gordon v. Rhodes & Daniel (Tex. Civ. App.) 117 S. W. 1023, 1026; Kleine Brothers v. Gidcomb (Tex. Civ. App.) 152 S. W. 462; Calloway v. Booe & Collier (Tex. Civ. App.) 195 S. W. 1174.

In this case the fraud and fraudulent representations were alleged to have been committed in Bexar county. And the instrument, represented to be a power of attorney, and alleged to be oil leases, was -signed and delivered in Bexar county.

This is not a suit for the recovery of land or damages thereto, or to remove incumbranc-es or to quiet title to land, or to prevent or stay waste on land, where the venue is fixed in the county where the land is situated, subdivision 14, article 1995, but this is a suit brought on the ground of the actual fraud perpetrated in'the particular county, subdivision 7, art. 1995.

The judgment of the trial court is reversed, and the cause remanded to be tried in Bexar county.


author: CURETON, C. J.

text:
    CITY OF DALLAS v. WRIGHT et al.
    App. No. 17905.
    Supreme Court of Texas.
    March 18, 1931.
    James J. Collins, City Atty., and A. A. Long, W. Hughes Knight, A. J. Thuss, and H. P. Kucera, Asst. City Attys., all of Dallas, for plaintiff in error.
    John W. Pope, of Dallas, for defendants in error.
   CURETON, C. J.

' This case is before us on application for, writ of error by the city of Dallas.. The defendants in error owned certain property against which the plaintiff in error caused to be levied a special assessment for Benefits accruing from certain improvements. • The report of the commissioners appointed to determine the question of benefits -was approved by the city authorities and an ordinance enacted assessing defendants in error and their property in the amount of $13,584.35. The ordinance also authorized the issuance of an assignable interest bearing tax certificate, payable in installments, declaring the personal liability of the defendants in error, and fixing a lien -on- the property for the payment of the benefit taxes so assessed. Within ten days thereafter the defendants in error filed a suit under R. S. art. 1219, asking that the proceedings be set aside for the errors alleged and for invalidity in the proceedings, claiming among other things that their property received no benefits' from the improvements, and alleging certain other infirmities not apparent upon the record of the tax levy. They also alleged that the city was endeavoring to sell and assign the tax certificate, and in effect that the whole proceeding and the sale of the certificate was or would constitute a cloud upon the title to their real estate. Pending the determination of the issues in the case, the defendants in error sought the issuance of a temporary writ of injunction enjoining the city from selling or assigning the certificate during the pendency of the suit. The trial court set the application for temporary injunction down for hearing after having issued a restraining order. The city answered, alleging, among other things, that it had the legal right to assign the certificate pending the suit, that the de-, fendants in error could not be prejudiced by such assignment of the certificate, as they had an adequate legal remedy in that they could avail themselves of any defense to an action by an assignee'that could be urged if sued by the city, and hence that the temporary injunction should not issue. On the hearing the court dissolved the restraining order and denied the prayer- for. the issuance of the temporary writ of injunction. From this action an appeal was prosecuted to the Court of Civil Appeals. That court held the trial court should have granted the temporary injunction, and remanded, the cause to the trial court with instructions to cause the necessary temporary writ of injunction to issue, upon the execution of a proper bond. Application for writ of error has been made to this court primarily upon the proposition that R. S. art. 1219 provides a complete adequate remedy at law, and that the defendants in error have no right to invoke the equitable powers of the court and to enjoin the plaintiff in error from selling or disposing of the assignable certificate. We have concluded that the Court of Civil Appeals correctly disposed of the case, and will now state our reasons for this conclusion.

It is quite true that where the statute provides an a'dequate and complete legal remedy in cases of this character, the statutory remedy is exclusive and must be followed, and the powers of a court of equity acting without and independent of the statute cannot be invoked. In other words, had the defendants in error not brought suit to set aside the action of the city as provided in the statute, then equity, independent of the statute, and as a method of reviewing the action of the City resulting in the assessment, at least as far as mere errors or irregularities are concerned, could not be invoked as a remedy. We recognize and adhere to that rule. Cooley on Taxation (4th Ed.) vol. 4, §§ 1646, 1648; Pomeroy’s Equity Jurisprudence (2d Ed.) vol. 5, § 2060; High on Injunctions (4th Ed.) § 493; Kyle v. Richardson, 31 Tex. Civ. App. 101, 71 S. W. 399 (writ refused); Turner v. Patterson, 54 Tex. Civ. App. 581, 118 S. W. 565; Williams v. Watt (Tex. Civ. App.) 171 S. W. 266; Race v. Decker (Tex. Civ. App.) 214 S. W. 709; City of Corsicana v. Mills (Tex. Civ. App.) 235 S. W. 220; 44 Corpus juris, p. 752, § 3301; Campbell v. City of Olney, 262 U. S. 352, 43 S. Ct. 559, 67 L. Ed. 1021; 25 Ruling Case Law, p. 190, § 103, p. 192, § 105; Page and Jones on Taxation by Assessment, vol. 2, §§ 1414, 1413. The rule to which we refer and to which we adhere is stated in Corpus Juris, cited above, as follows:

“In accordance with elementary principles it is a rule of almost universal application - that a bill will not lie to vacate an assessment or to enjoin the collection thereof where an adequate remedy is provided by statute for redressing the grievances which form the basis for asking equitable relief, it being the duty of those objecting to the assessment to apply for the relief which the law has provided; and failure to avail themselves of the statutory remedy affords no ground for an application to a court of equity to relieve them from the consequences' of their neglect. ⅜ ⅜ * Nevertheless, if the statutory -remedy is inadequate to give the relief to which complainant is entitled, a bill to vacate or enjoin the assessment will lie.”

However, as shown by the text quoted, the rule does not preclude the issuance of a temporary injunction in this ease, since' equitable relief, once suit is instituted within the statutory time, may be granted where the legal remedy is not adequate. This interpretation of the rule is one clearly consistent with our statutory and constitutional provisions.

R. S. art. 1219, under which this suit was brought, provides:

“Any property owner against whom or whose property an assessment or reassessment- has been made, may, within ten days thereafter bring suit to set aside or correct the same, or any proceeding with reference thereto on account of any error or invalidity therein, but thereafter such owner, his heirs, assigns, or successors shall be barred from such action or any defense of invalidity in such proceedings or assessment or reassessment, in any action in which the same may be brought into question.”

This article in no sense attempts to limit the jurisdiction of the district court to issue any appropriate writ or grant any necessary relief, once the powers of the Court have been properly invoked, as in this case.

'The Constitution, art. 5, § 8, confers upon district courts authority to issue writs of injunction, and all writs necessary to enforce their jurisdiction. K. S. art. 4642, provides for granting injunctions:

“1. Where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.
“2. Where a party does some act respecting the subject of pending litigation or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant when said act would tend to render judgment ineffectual.
“3. Where the applicant shows himself entitled thereto under the principles of equity, 'and the provisions of the statutes of this State relating to the granting of injunctions.
“4. Where a cloud would be put on the title of real estate being sold under an execution against a party having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.”

Under these provisions district courts can issue writs of injunction in all cases in which a court of chancery would have power to issue them under established rules of equity. Anderson County v. Kennedy, 58 Tex. 616; Alexander v. Holt, 59 Tex. 205; Day Co. v. Chambers, 62 Tex. 190; Stein v. Frieberg, 64 Tex. 271.

It is elementary that the statute (article 1219) prescribing a statutory method of reviewing assessments of the character before us should be construed and interpreted in pari materia with the Constitution and the statutes conferring jurisdiction on the courts in which such suits for review must be filed. Ex parte Lipscomb, 111 Tex. 409, 417, 239 S. W. 1101; Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096: Millhollon v. Stanton Ind. School Dist. (Tex. Civ. App.) 221 S.W. 1109; Hanrick v. Hanrick, 54 Tex. 101, 109; Cannon’s Adm’r v. Vaughan, 12 Tex. 399. So, construing and interpreting the statutes before us, we are of the opinion that in a case where an action is brought under the terms of article 1219, and the power of the district court thereby invoked, then the full power of the court, including its equity powers under the general principles of equity, may be resorted to to administer justice between the parties. In fact, once an action is authorized within the jurisdiction of the district court, that court, under its constitutional power to issue injunctions and grant equitable relief generally, can grant such relief when necessary under the general principles of equity jurisprudence, without reference to statutory authority. That power is derived from the Constitution. Anderson County v. Kennedy, 58 Tex. 616, and other authorities supra.

The statute under review provides an exclusive remedy under ordinary conditions to the extent that the statutory remedy of suit within the ten-day period must be followed, but when once the suit is filed within time, all the powers which the district court may properly exercise under established principles of law and equity may be invoked. This construction is clearly consistent with the language of article 1219 itself, under which this action was brought. It will be noted from this article that suit is authorized not alone for the purpose of determining the legality of the taxation proceedings, and the resulting levy and certificate, but “to set aside or correct,the same, or any part thereof, or any proceeding with reference thereto, on account of any error or invalidity thereof.” Since the statute in unmistakable terms authorizes the district court “to set aside and correct” the previous proceedings, the general equitable powers of the court to cancel, annul, and correct are provided for by the statute itself. Pomeroy’s Equity Jurisprudence (2d Ed.) vol. 1, § 112; Cooley on Taxation (4th Ed.) vol. 4, § 1639. From the foregoing it follows that such court may not only set aside and correct any proceeding on account of error or invalidity, but that-the court may, when an application of the general principles of equity warrant it, issue writs of injunction and other writs necessary to a correct determination of the justiciable issues' which may arise in cases of this character. It is elementary, of course, that some equitable ground for the issuance o'f an injunction must exist before the writ will issue. Equity cannot be invoked to grant relief by injunction in tax cases where the remedy at law is adequate, but the remedy must be adequate and complete. Cooley on Taxation (4th Ed.) vol. 4, §| 1646, 1647. The powers of a court of equity may also be invoked to remove cloud, or by injunction to prevent some act which would cloud title to real estate.

Injunctions in such suits will also is-she to prevent a multiplicity of suits, or to prevent irreparable injury. 44 Corpus Juris, p. 750, §§ 3294, 3295, 3296; authorities post. It is likewise elementary that a court, once having obtained jurisdiction of a cause of action as incidental to its general jurisdiction, may 'exercise any power, or grant any writ, including the writ of injunction, necessary to administer justice between the parties, preserve the subject-matter of the litigation, and make its judgment effective. 15 Corpus Juris, p. 810, § 108.

In the light of the principles thus generally stated, we will examine the record in this case for the purpose of determining whether or not the temporary injunction was correctly ordered by the Court of Civil Appeals.

When the instant suit was filed, the city, according to the petition, was about to issue and dispose Of the tax bill or certificate to some third party, or parties. It will be noted that the ordinance which made the assessment and directed the issuance of the certificate declared, in accordance with the statute (R. S. art. 1210), that the assessment should be a lien on the property of defendants in error. It is obvious that at this time the city was the only party interested in the validity of the assessment, the lien, and the certificate, and the only party necessary to a determination of the issues involved. The subject-matter of the suit, therefore, was the validity of the assessment and lien as between the city and the defendants in error. Under our statute, by the filing of the suit, full and complete jurisdiction was conferred upon the court to set aside or correct all the proceedings previously had by the city. Page and Jones on Taxation, vol. 2, § 1361. The necessary legal effect, therefore, of filing the suit was to suspend the proceedings previously had by the city, and require a trial by the district court of the issues between the parties. Page and Jones on Taxation, vol. 2, §§ 1351, 1360; 44 Corpus Juris, p. 728, § 3233, and cases in notes; Dillon on Municipal Corporations (5th Ed.) vol. 4, § 1503, p. 2797; Black v. Thomson, 107 Ind. 162, 7 N. E. 184; Hardy v. McKinney, 107 Ind. 364, 8 N. E. 232; Manor v. Board, 137 Ind. 367. 34 N. E. 959, 36 N. E. 1101. Since the institution of the suit invoked the jurisdiction of the district court and suspended that of the city, it follows that the city authorities had no lawful power to make effective the suspended orders by issuing and assigning thé assessment certificate during the period of suspension. By the filing of the writ, jurisdiction to hear and determine the questions in issue, including the right of the city to issue and assign the certificate of assessment, was conferred exclusively upon the court, and to permit the city, during the pendency of the suit, to issue and assign- the certificate, would be to deprive the district court of its jurisdiction and nullify the statutory right to have the court determine the rights of the parties. Authorities supra ; City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405, 407; City Bond Co. v. Bruner, 34 Ind. App. 659, 73 N. E. 711, 712.

This action was brought by the defendants in error for the cancellation of the assessment, the tax certificate and lien, and to remove cloud. Pending the determination of the issues on final trial, they prayed for a temporary injunction: restraining the city authorities from offering for sale the certificate or tax bill. The grounds upon which they rely for the cancellation of the assessment and certificate are such as- would not be disclosed by an examination of the assessment roll or assessment proceedings, but would require proof aliunde that record.

The Court of Civil Appeals correctly ordered the issuance of the temporary injunction itpon three grounds:

First. To preserve the subject-matter of the litigation. One part of the subject-matter of the litigation is the assignable certificate of assessment in the hands of the city. One object of the suit was to prevent the issuance of this certificate, or, if issued, to cause it to be canceled.

Equitable remedies generally act .in personam. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1433; Banco Minero v. Ross & Masterson (Tex. Civ. App.) 138 S. W. 224, 235; _ 7 Texas Jurisprudence, p. 972, § 54; Business Men’s Oil Co. v. Priddy (Tex. Com. App.) 250 S. W. 156. Therefore, in order for the court to make an order of cancellation effective, it was necessary that the city should either voluntarily remain in possession of the certificate, or be enjoined from disposing of it, so that the certificate, a part'of the actual subject-matter of the litigation, and the holder thereof, might be and remain subject to the orders of the court. Ramirez v. Barton (Tex. Civ. App.) 41 S. W. 508, 510 (writ refused); 7 Texas Jurisprudence, p. 1006, § 74. No principle is better settled than that a court will protect its jurisdiction by preserving the subject-matter of the litigation in order to make its decrees effective. In fact, the Constitution and statutes expressly declare that the district court may issue writs of injunction to protect its jurisdiction. Const, art. 5, § 8; R. S. art. 4642, subd. 2.

The authorities hold to the same effect. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1340, vol. 5, § 2105; 15 Corpus Juris, p. 810, § 108; Finlen v. Heinze, 27 Mont. 107, 69 P. 829, 70 P. 517; Keneweg v. Schilansky, 47 W. Va. 287, 34 S. E. 773; 7 Ruling Case Law, p. 1033; Cleveland v. Ward, 116 Tex. 1, 13, 285 S. W. 1063.

Cancellation is an equitable remedy. Pomeroy’s Equitable Remedies (4th Ed.) vol. 1, § 112, supra; 7 Texas Jurisprudence, p. 884, § 2, p. 886, § 3.

Equitable remedies operate in personam, and one not a party to a suit cannot be compelled to deliver up an instrument held by him for cancellation. Authorities supra. As stated by Texas Jurisprudence, supra, section 74:

“A person not a party to the suit should not.be compelled to deliver up for cancellation an instrument held by him, nor should a party to the suit be compelled to deliver up an instrument not in his possession and not belonging to him.”

On the power of a court to issue an injunction for the purpose of preventing the transfer of an instrument, Mr. Pomeroy, in section 2105, in part says:

“The equitable remedies of cancellation, rescission, surrender up, and discharge of instruments are one and the same remedy, de-, pending upon the same rules. They are frequently accompanied by an injunction against a suit at law upon the instrument, or against the negotiation or transfer of the instrument to other persons.”

In section 1340 the same author states:

“Among the instances in which equity will.' grant an injunction, preliminary or final, in 'pursuance of the general doctrine as stated in the foregoing paragraph, the following are some of the most important, and they fully illustrate and establish the doctrine itself, in all its generality, and the grounds upon which it rests: To prevent the transfer of negotiable instruments, at the suit of the defrauded maker or acceptor, or of the party claiming to be the true oicner, or to have an interest in them; or the transfer, under like circumstances, of stocks or other securities not strictly negotiable; or even the transfer of chattels, when of a special nature and value, such as diamonds, and the like articles ; to prevent a payment of money in violation of a trust; to restrain a breach of trust; to prevent a defendant from affecting or encumbering the property in litigation by contract, conveyance, mortgage, or any other act; and, in general, in all suits to enforce an equitable right against specific property, — as to enforce an equitable estate and compel the conveyance of the legal title, to enforce a trust, or an equitable lien, to compel the specific performance of a contract, and the like, — the court will grant an injunction to restrain a threatened transfer of the property, lohether land, chattels, or securities, during the pendency of the action.” (Italics ours.)

It is true that in this case the actual tax: bill or certificate of assessment may not have ■been issued, but it would no doubt have been issued but for the injunction prayed for. But, whether actually issued or not, in order to preserve the subject-matter of the litigation as between the identical parties in court, a court of equity would have the right to enjoin its issuance and sale. City of Richmond v. Crenshaw, 76 Va. 936; High on Injunctions (4th Ed.) vol. 1, p. 514, & 538. The authority last cited states:

. “So when an assessment of property fox-municipal taxation has been corrected in the manner and by the tribunal fixed by law for such purpose, but the municipal authorities proceed to levy the tax upon the original assessment which has been invalidated, the appropriate remedy is by injunction.” High on Injunctions, vol. 1, p. 514, § 538.

If an injunction may properly issue to prevent the enforcement of a levy previously invalidated by the tribunal provided by law for such purpose, then it plainly follows that a court of equity having a similar jurisdiction will issue a preliminary injunction to prevent the doing of an act which later it might en-. join for invalidity.

Second. We think it evident that in the event the city is permitted to issue and negotiate the certificate, the title of defendants, i in error will be clouded and rendered un-j merchantable until an action for the removal of the cloud or cancellation of the certificate has been successfully prosecuted or the tax bill paid off. Under the established rules of equity defendants in error were entitled to the temporary writ to prevent the issuance and negotiation of the certificate, pending the result of this suit, inasmuch as the alleged .invalidity of the assessment proceedings does not appear on the face of the assessment record or roll. Page and Jones on Taxation by Assessment, vol. 2, §§ 1425, 1426, 1427; Cooley on Taxation (4th Ed.) vol. 4, § 1643; Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 5, § 2148; High on Injunctions (4th Ed.) vol. 1, p. 498, § 524, p. 513, § 538; 25 Puling Case Law, p. 194, § 107; Shaffer v. Carter, 252 U. S. 37, 46, 40 S. Ct. 221, 64 L. Ed. 445; City of Houston v. Baker (Tex. Civ. App.) 178, S. W. 820, 824; Verdin v. St. Louis, 131 Mo. 26, 33 S. W. 480, 491, 36 S. W. 52; Parker-Washington Co. v. Kemper Inv. Co., 143 Mo. App. 244, 128 S. W. 271, 273; Bolton v. Gilleran, 105 Cal. 244, 38 P. 881, 884, 45 Am. St. Rep. 33, 39.

In the last case cited the controversy was over the validity of a street assessment. The Supreme Court of California, in deciding that an injunction might issue, succinctly stated the rule, which may also be found in other authorities cited by us, as follows:

“The right of the plaintiff to maintain the action is clearly established. The statute makes the assessment a lien upon her lands, and there is nothing upon the face of the assessment to show that the lien is not in all respects valid. If, by reason of matters outside of the assessment as it is recorded, this apparent lien may be shown not to be a valid incumbrance, the assessment constitutes a cloud upon her title which she is entitled to have, removed; and, although she can assert the same matters as a defense to any action for the enforcement of the assessment, she is not required to wait until such action may be brought, and, in the meantime, suffer the in-jui-y of having the title to her lands impaired by this apparent lien, but may herself invoke the equitable aid of the court to remove the cloud, and to enjoin the holder of the assessment from asserting any claim upon her lands by virtue thereof.”

Judge Cooley, in his work on taxation, in the section cited above, in part says:

“If the tax is .a lien upon lands, it may ¡hen constitute a cloud upon the title; and one branch of equity jurisdiction'is the removal of apparent clouds upon the title, which may diminish the market" value of the land, and threaten a possible loss of it to the owner. If an illegal tax is a cloud on the title to real property, injunction lies to restrain the assessment or collection of the tax, unless there is a plain, complete and adequate remedy at law. A cloud upon one’s title is something which constitutes an' apparent incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole or some interest in it. An illegal tax may or may not constitute such a cloud. If the alleged tas has no semblance of legality; if, upon the face of the proceedings, it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record and comparing it with the law is at once apprised of the illegality, the tax, it would seem, could neither constitute an incumbrance, nor an apparent defect of title; and, therefore, in law, could constitute no cloud. * * *
“When, however, the illegality or fatal defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who should become purchaser, and the evidence to rebut this case may possibly be lost, or be unavailable from death of witnesses or other cause, or when the deed given on a sale of the lands for the tax would, by statute, be presumptive evidence of a good title in the purchaser, so that the purchaser ■might rely upon that for a recovery of the lands until the illegalities were shown, the courts of equity 'regard the case as coming within their ordinary jurisdiction, and have extended relief on the ground that a cloud on the title existed or was imminent.”

In Page and Jones on Taxation, vol. 2, § 1426, supra, the authors say:

“Equitable relief is frequently sought against an invalid assessment in the form of an injunction to prevent the sale of the property assessed to satisfy the assessment, or in the form of a suit to set aside the assessment or the sale as a cloud upon the title of the owner. Equitable relief is ordinarily given in such cases if the assessment is a lien upon the property, and if its existence, or the fact of a sale to satisfy such assessment, either of them constitutes a cloud upon the title.”

In Pomeroy’s Equity Jurisprudence, above cited, in section 2148, the author states:

“As a court of chancery may undoubtedly entertain a suit to remove an existing cloud upon title, so' also it may, in a proper case, interpose its authority to prevent, by injunction, a threatened act from which such a cloud must necessarily arise.”

In I-Iigh on Injunctions, cited above, the ■author says:

“The most génerally recognized exception to the rule that equity will not interfere with the collection of the revenue because of defects or illegalities in the proceedings, is in cases where the proceedings if not enjoined would result jn clouding the title to real estate. Thus, where the defect is not merely a formal one but works a substantial injury to complainant’s rights, resulting in a cloud upon his title, the injunction will be granted. And where the proceedings ’sought to be set aside are valid upon their face and extrinsic facts are necessary to be proven to show their invalidity or illegality, equity will interfere to prevent a cloud upon title.” High on Injunctions, § 524.

Third. It is obvious that if the city is permitted to issue and assign the certificate of assesment to third parties, the defendants in error, in order to obtain full relief, would be compelled to make the holders thereof parties to this litigation, or else bring an independent suit, or suits, for cancellation; or, as the pleadings suggest, for other relief, in the event foreclosure proceedings should be filed by the assignees of the certificate. We think this clearly shows that the trial court should have issued the temporary injunction restraining the assignment of the certificate, for the purpose of preventing a multiplicity of suits and enabling the defendants in error to obtain complete relief in the instant case. 44 Corpus Juris, p. 751, § 3295; Hammer V. Garrett, 63 Tex.. Civ. App. 208, 132 S. W. 951, 133 S. W. 1058.

Having concluded that the Court of Civil Appeals correctly disposed of this case, we accordingly, and for the reasons given, refuse the application for writ of error.


author: PIERSON, J.

text:
    SOUTHWEST CONTRACT PURCHASE CORPORATION v. McGEE.
    No. 4966.
    Supreme Court of Texas.
    March 18, 1931.

      Crane & Crane, of Dallas, for plaintiff in error.
    Lively & Dougherty and J. Hardy Neel, all of Dallas, for defendant in error.
   PIERSON, J.

We quote the following from the opinion of the Honorable Court of Civil Appeals, 296 S. W. 912, for a partial statement of the case:

“The appellant, as assignee of Ridgeway & Bruton, instituted this suit against appellee to recover a balance alleged to be due on a written instrument described by appellant as an installment note executed by appellee in part payment of a refrigerating machine sold to appellee by Ridgeway & Bruton, and to foreclose a chattel mortgage on the machine given to secure the payment thereof. Appellee pleaded under oath certain offsets and counterclaims based upon the allegation that the machinery would not produce a temperature of from 35 to 38 degrees Fahrenheit as it was guaranteed to do by Ridgeway & Bruton. In short, we have construed the pleading of ap-pellee to be in effect a partial failure of consideration. The jury returned a verdict in favor of the plaintiff in the sum of $1,344.95 and likewise a verdict in favor of the defendant in the sum of $1,378.16. The • judgment, after reciting such verdict, decrees in effect that, it being manifest that defendant’s offsets exceed the amount found in plaintiff’s favor and that defendant is not entitled to a personal judgment against plaintiff for the excess, it is therefore ordered, adjudged, and decreed that neither party recover anything as against the other. Costs were adjudged against appellant. From this judgment an appeal has been perfected.”

The judgment of the district court was affirmed by the Court of Civil Appeals.

As stated, defendant in error pleaded in defense of plaintiff in error’s claim certain offsets and defenses which are in the nature of and constitute pleas of failure of consideration, or a partial failure of consideration. Plaintiff in error resists these offsets, on the ground that under our statutes the same protection of law is given to nonnegotiable instruments as to. negotiable instruments, and cites the case of McCormick v. Kampmann, 102 Tex. 215, 115 S. W. 24.

The instrument sued on is fully described in the opinion of the Court of Civil Appeals, and, as held therein, is clearly not a negotiable instrument. 296 S. W. 912.

Article 568, B. S. 1925, relating to negotiable instruments, reads: “The assignee of any negotiable instrument may maintain any suit in his own name which the original obligee or payee might have brought. He shall allow all just discounts against himself, and if he obtained the same after it became due, he shall also allow all just discounts against -the assignor before notice of the assignment was given to the defendant. If he obtains such instrument before its maturity by giving for it a valuable consideration without notice of any discount or defense against it, he shall be compelled to allow only the just discounts against himself.”

Article 569 provides that written instruments not negotiable by the law merchant may be assigned.

Article 570, relating to nonnegotiable instruments, reads in part as follows: “The as-signee of any instrument mentioned in the preceding article may sue thereon in his own name. He shall allow every discount and defense against the same which it would have been subject to in the hands of any previous owner before notice of the assignment was given to the defendant.”

Article 574 reads as follows: “The defendant in any suit upon a written instrument may plead want or failure, or partial failure of consideration, where such written instrument shall remain in the possession of the original payee or obligee or when' it has been transferred or assigned after the maturity thereof, or when the defendant proves a knowledge of such want or failure of consideration on the part of the holder prior to such transfer.”

It is contended by plaintiff in error that under this last article, which was article 314 of the Revised Statutes of 1895, it was necessary for defendant in error, in order to make his plea of partial failure of consideration good, to allege that the instrument sued on by plaintiff was transferred or assigned to it after maturity, or that it had knowledge of such defense prior to the transfer to it. In other words, the contention is that under article 574 an assignee of a nonnegotiable instrument is given the same protection of law as is given an assignee of a negotiable instrument, as was held in McCormick v. Kampmann, 102 Tex. 215, 115 S. W. 24.

Article 574 clearly is not subject to that construction. In fact, its import is exactly the opposite. Its plain wording is in harmony with the other articles referred to above, and with the law merchant generally. Daniel on Negotiable Instruments (6th Ed.) vol. 1, § 1. It declares that a. defense of want, or failure, or partial failure of consideration is available to the maker of a written instrument, so long as the instrument is in the hands of the original payee or obligee; or when it has been transferred or assigned after its maturity; or when the transferee or assignee had knowledge of such want or failure of consideration prior to the transfer or assignment to him. In the respects mentioned and limited by the article, it applies alike to negotiable and nonnegotiable instruments, but it in no sense clothes nonnegotiable instruments with the protection .given negotiable instruments by article 568. Considered separately or collectively, the meaning of the articles is clear and is well understood in the' business practices of the country.

The courts before and after the case of McCormick v. Kampmann, supra, have uniformly given these statutory provisions the same proper and correct construction and application as here announced. National Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S. W. 979; Parker v. American Exchange Bank (Tex. Civ. App.) 27 S. W. 1071; Feder-Gregg Shoe Co. v. Big Pour Shoe Store Co. (Tex. Civ. App.) 281 S. W. 717; Lane Co. v. Crum et al. (Tex. Com. App.) 291 S. W. 1084; J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S. W. 800.

In respect to the issue discussed in this opinion, the McCormick v. Kampmann Case is overruled. The judgment of the Court of Civil Appeals is affirmed.