18 Tex. 753 | Tex. | 1857
The questions now presented, which were not determined upon the former appeal, (13 Tex. R. 524,) and which are deemed to require notice, arise upon the allegations of fraud, and the effect of the decree for specific performance and partition.
Having heretofore determined that the Court had jurisdiction to render the decree, it is perfectly clear that it is conclusive of the questions adjudicated therein, and that they are not now open to examination or discussion, unless the decree was obtained by fraud. (Shannon v. Taylor, 16 Tex. R. 413.) However obtained, it will not be questioned that it was competent for the party whose interest was affected by it, to acquiesce in and abide by the decree, if he saw proper. If he is content, as it seems he has been for the space of fifteen years,— and the evidence leaves little room to doubt that he must have been aware of it,—it would seem that a stranger, one who was not a party or privy, and who does not claim under the party, or pretend to have any right or interest to be affected by the judgment, cannot impeach it. But if he can, there was no evidence of fraud, which required the Court to leave any such question to the jury. If the plaintiff’s attorney did draw up the answer of the curator, for him, that, in an action of this nature, which was only intended to perfect an equitable into a legal title and have partition, which the curator had no reason to suppose the absentee would have opposed if present, was no evidence of fraud. The curator was under no obligation or necessity to employ counsel - and litigate the case, or to make opposition, further than Qto require the plaintiff to establish his right by proof. The answer he adopted had that effect; and that was sufficient; especially as the absentee was also represented by an attorney of the Court. There is no pretence that the latter colluded with the plaintiff to defraud the absentee, or that he was wanting in fidelity to the party he represented. There is as little ground to impute a fraudulent design to the curator. When it is considered that Kennelly
In respect to the effect of the decree, and the partition of the land in pursuance thereof, it unquestionably was valid and effectual to vest in the plaintiff the title to the part conveyed to him under and in obedience to the decree. The Court acted in the matter of decreeing a specific performance and partition, in virtue of its powers and jurisdiction as a Court of Equity ; and not by virtue of an authority conferred merely by the Statute. As a Court of Equity, it possessed full power and authority to decree partition and provide for carrying its decree into effect, by appointing Commissioners and directing a conveyance. (1 Story’s Eq. Ch. 14, Sec. 656, et seq.) The Statute (Hart. Dig. Art. 2617, et seq.) was doubtless borrowed from the legislation of States, where, by reason of the inadequacy of the remedy afforded by the Common Law writ of partition, (for until the Statute of 31st Henry VIII, Ch. 1, and 32 Henry VIII, Ch. 32, no writ of partition lay at law fora joint
But if the partition had been invalid, still the decree, without partition, vested in the plaintiff an undivided interest in
It is scarcely necessary to say that the removal of the grantee from this to another of the States of the Mexican Confederacy in 1833, was not an abandonment of the country, within the inhibition of the 30th Article of the Colonization Law of the 24th of March, 1825.
The plaintiff’s was a good and valid title to the land for which he sued ; and there was nothing in the matters of defence, urged against it, to defeat his right to a recovery.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.