Fleming v. Seeligson

57 Tex. 524 | Tex. | 1881

Bonner, Associate Justice.

We will, as most favorable to the rights of appellant Fleming, for the purposes of this opinion, consider this as a direct proceeding in the nature of a bill in equity to review and set aside judgment in cause Mo, 5545 for alleged fraud, and not as an indirect proceeding in which this issue is collaterally presented.

Thus viewed, both questions, whether that judgment is only voidable or is absolutely void, can be considered, when, if it were a collateral attack, the latter only could be.

The facts constituting the alleged fraud are specifically set out in the pleadings of appellant Fleming, in accordance with the proper practice under our statute, which requires a full and clear statement of the cause of action. Pasch. Dig., art. 1427; R. S., art. 1395.

There are also general allegations in the pleadings, that the former judgment is null and void by reason of the alleged fraud. These in effect are but the conclusions of the pleader arising upon the facts stated.

Under well established rules of pleading, the demurrer admits only the facts which are well pleaded, and not the conclusions of the parties deduced from these facts.

The alleged fraud did not render the judgment absolutely void, but voidable only. It was but the legal ground upon ivhich, if relief was sought in the proper manner and within the proper time, the former judgment might be avoided, when otherwise it would remain in full force and effect. Murchison v. White, and authorities cited.

The same principle applies under the facts of this case, in regard to the death of Mrs. Emma Fleming and insanity of appellant J. Presley Fleming, as circumstances to show this fraud. The fact that the one may have died and the other have become insane during the pendency of the suit, and after the court had acquired jurisdiction of the person by citation, appearance and answer, and when represented by counsel, there being no suggestion of death or insanity, would not render the judgment void, but voidable only. Milam Co. v. Robertson, 47 Tex., 222; Taylor v. Snow, id., 462.

In this connection, it may he stated that under the will of Mrs. Emma Fleming, who died previously to the insanity of appellant, he was her sole heir and representative, and was then before the court; and that he afterwards became again of sound mind, more than two years prior to the date when the former judgment was sought to be avoided.

Whatever may be the merits of this case by reason of the alleged fraud, were they properly before us, we are, under previous decisions' of this court, precluded from their investigation, as the special de-* murrer of Seeligson, that this proceeding was not instituted within the required time, was properly sustained.

It is now the established general doctrine of this court, that such suits should be commenced within two years from the rendition of the judgment sought to be ¿voided, or within two years after the removal of a legal disability existing at that date. Murchison v. White, supra; McAnear v. Epperson; Chambers v. Hodges, 23 Tex., 104; Weaver v. Shaw, 5 Tex., 288.

That sec. 14, art. XII, Const. 1869, to the effect that married women, minors and insane persons shall not be barred of their rights of property by adverse possession or law of limitations of less than seven years from and after the removal of each and all their respective legal disabilities, does not apply in suits of this character, was expressly decided at the present term in McAnear v. Epperson, supra.

We do not think that the pleadings show sufficient facts to constitute such- concealment of the alleged fraud in the appointment of a substitute trustee, or such diligent inquiry in regard thereto, as would prevent the running of limitation until its discovery, under the principles invoked in analogous cases.

The former judgment being then voidable only and not void by reason of the alleged fraud, and this suit not having been commenced within the proper time to make that defense available, the only remaining material question in the case is whether the court had jurisdiction to render the judgment.

It is contended that Seeligson was a purchaser pendente lite, and as such had no right to intervene; that by his petition of intervention in which he claimed title to the whole of the property, he set up a new and different cause of action from that which was previously litigated between the original parties; and that as such intervenor, he could not legally do this, and particularly without additional citation to them. As has been often said, it is the policy of our jurisprudence to encourage the settlement in one and the same suit of all matters of litigation, concerning the subject matter in controversy.

To this end, a third party by leave of the court can intervene when he has such interest in the subject matter, that had he first brought the suit as sole plaintiff, he might have recovered in whole or in part, or the suit been first brought against him as defendant, he might have defeated it in whole or in part. Pool v. Sanford, 52 Tex., 633; Smalley v. Taylor, 33 Tex., 668; Graves v. Hall, 27 Tex., 154; Eccles v. Hill, 13 Tex., 65.

Having due regard to the rules of practice, that the suit as between the original parties shall not be unreasonably delayed, it is believed that otherwise the intervention may be considered in the nature of a new suit, by which the rights of either the original plaintiff or defendants, or both, may be contested; ordinarily the statute of limitations would run against the intervenor prior to the date of filing his petition. That the claim of an intervenor may be acquired by voluntary sale from one of the parties litigant, pending the suit, was recognized in Berry v. Donley, 26 Tex., 738.

If, however, as in this.case, the purchaser of Fleming’s interest in the property in litigation was made by Seeligson under trust sale pending the suit to which Fleming was a party, we do not perceive why on principle he should not be permitted to have intervened and set up his title. To hold that Seeligson should not have been permitted to do this, but that he should have been required both to await and abide the result of the suit as between the original parties before he could sue, would virtually subject his rights to be prejudiced by delay, limitation and the action of other parties over whom he had no control.

It might have been to the interest of Fleming for his own benefit to have jeopardized the rights of Seeligson after his purchase, by delay, compromise or otherwise. It is the practice to require the original parties who were properly before the court to take notice at their peril of a petition for intervention filed by leave of the court. Bryan v. Lund, 25 Tex., 98; Jordan v. Corley; 42 Tex., 284.

If, at the date of filing the petition of intervention in this case, Mrs. Emma Fleming was dead and the appellant was temporarily insane, yet as the court had previously acquired jurisdiction over them, and they had appeared, answered, and were represented by counsel, and no suggestion was made of record of the death or insanity, the judgment, as before shown, was not a nullity, but voidable only. Even if it be conceded that an intervenor cannot litigate any greater interest than that set up by the original parties to the suit, which, however, is not admitted, still the record in this case shows that the whole interest in this property was at the time of Seeligson’s intervention thus in controversy. It was a suit for title and partition, and which properly brought in question the title of all parties claiming an interest therein; and besides, Mrs. Emma Fleming and appellant, by virtue of the sale of David Bradbury, as survivor of the community of himself and his deceased wife, Julia, expressly claimed on the record title to the whole property.

Affirmed.

[Opinion delivered at Gralveston Term, 1881.]