Martin v. Weyman, 26 Tex. 460

Martin v. Weyman

26 Tex. 460

Tex.

1863

Check Treatment

Moors, J.

It wаs decided by this court in the case of Trevino v. Fernandez, 13 Tex., 630, that “ the acts of the Mexican authorities in the territory adjacent to the Rio Grande, while that territory remаined efe facto under their control, although subsequent to the declaration of her boundary by the Republic of Texas, in the ordinary administration of her laws and municipal affairs, so far as individuals are concerned, were as valid and binding as if done by the government efe jure as well as de facto.” And as the court found, a jury having been waived, that at the date of the conveyance by the judge of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the first instance to Gilmore, and the act of sale from him to Ribolta, the. land in controversy was de facto within the jurisdiction of the Mexican government, and subjеct to the control of the civil authorities of the city of Matamoros, it was correctly held, that by the proceedings had before said judge of the first instance, and the act of sale by him to Gilmore, and from Gilmore to Ribolta, the title to the land was divested out of the heirs of John Stryker and vested in Ribolta. And if the rulings of the court in other pаrticulars were correct, the plaintiffs were entitled to recover the land, unless they failed to show as between themselves and Ribolta that the title of the latter had vested in them. In other words, the defendants having no title, but, in the aspect of the case we are now contemplating, relying upon the outstanding title in Ribolta, could stand in no better position than he Would if he were present in court resisting *466the plaintiffs’ title. The plaintiffs relied upon an instrument of like character, and executed with the saíne solemnities by Riholtii ns that by which the land was conveyed to him; but the court held that this was insufficient to pass the title, .upon the ground ■that at the date of its execution the land wаs within the defacto, as well as de jure jurisdiction of the State of Texas; and that by the act concerning conveyances of February 5th,-1840, the act of Sale upon which the plaintiffs relied, Was ineffectual to pass the legal title for want of a seal. Whether this is the necessary construction of said act, it is unnecessary for us now to enquire. It has been held in a number of cases by this court,- (see Miller v. Alexander, 8 Tex., 86; Holman v. Criswell, 18 Tex., 36; Fisk v. Miller, Ib., 224;) that a contract for the sale of land is not, by the statute, required to be under seal; and whether the agreement аssume the form of a bond ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for title, or other form, is immaterial. The signature of the vendor alone, if the Contract is in other respects valid, is sufficient to-pass an equitablе title.

The court below, however, did not question that an equitable title would authorize a recovery in this character of action, and that a title could be crеated by an instrument not under seal; but it held, that the act of sale relied upon. by the plaintiffs did not have this effect for want of proof, independent of the recitals in it, of the payment of the purchase money. This, however, is manifestly erroneous. If the acknowledgment of the vendor in the contract of the receipt of the purchase money is not evidence of the fact unless under seal, it is evident all such contracts would be" void for Want of a consideration, unless sided by parol testimоny. It is, however, an elementary rule, which needs no illustration, that the recitals of a contract for the sale of land, are evidence against the vendor and his privies, of the payment of the purchase money admitted by it. And as We have said, when the defendant can show no legal or equitable title in himself, hut relies Upon the title of the plaintiff’s vendor, he, as a necessary consequence, is bound by the recitals of Ms contract.

The defendants, however, also relied, as a bar td the plаintiffs’' right to recover, upon a judgment of the District Court of Cameron county, in a suit brought by the plaintiffs by them'father,- as1 *467their natural guardian, against the defendants for the recovery of the land for which they are now suing. The record shows that a judgment was rendered in this case in favor of the defendants more than twelve months before the institution of the present suit. But from that part of the record introduced in evidence upon the trial of this case, the court cannot say that the former suit was an adjudication upon the merits, or upon such issues as entitles the defendants to rely upon the judgment as res adjud/icata. It is true, that after the trial in the court below, that that part of the papers of the fоrmer case that were not offered in evidence, were found, and upon motion of the defendants, the court below ordered them to be included in the transcript; and from these it appears that there was an issue upon the merits in' said former suit. But it is very evident, that these papers properly form no part of the recоrd in this case, and that we cannot look to them for any purpose. If upon the trial, a part of the papers belonging to the former suit were lost, it was necessary for the defendants, after showing this fact, to have proved their contents, so that the court could know upon what issues the former judgment was rendered, before they could avail themselves of it, as a bar to the plaintiffs’ right of recovery in this suit. Without therefore discussing the other objections taken ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by the plaintiffs, we hold that the court еrred in admitting as evidence the former judgment relied upon by the defendants, without theft having shown by the answer, or otherwise, the issue upon which it was rendered. In the attitude in which the сase now stands, a judgment cannot be given for the defendants; but if the court below had not admitted the former judgment without the production of the defendants’ answer, or proof of its contents, this might have been supplied by proper evidence. It is necessary, therefore, that we shall enquire whether the court erred in the legal effеct of the former suit, for upon this it will depend whether a judgment shall be rendered in this court for the plaintiffs, or the case shall be remanded. Although the court admitted the former judgment in evidence, and seems to have regarded it with that part of the record before it, as prima facie evidence, at least, of an adjudication upon the merits of the matter now in controversy, yet upon the final hearing it held the judg*468ment void, because the suit was commenced by the plaintiffs by their father as their natural guardian, and after his dеath was continued by the appointment by the court of a guardian ad litem for them. In this, we think the court was governed more by technical terms than sound legal principles. An infant withоut a legally appointed guardian, as was the case with the plaintiffs, may sue by his next friend. And surely in our courts it cannot be insisted, that it requires any particular technical phraseology to constitute this relationship between the infant and the party by whose aid he seeks to assert his rights. It is very evident, from the language of their petition, that their father placed himself before the court as their next friend, for the purpose of enabling the plaintiffs to prosecute their suit; and having been recognized by the court in this character, by its action in adjudicating upon their petition, it cannot now be held void for a mere technical inaccuracy in the description of the capacity in which he appears. The same may be said with reference to the appointment of the guardian ad litem, .as he was called, with this addition, that this was done by the direct action of the court. The action of the next friend of a minor, is within the control of the court. It may at any time, if deemed for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍interest of thе minor, substitute a new party as his next friend, in place of one with whom the suit was originally commenced. (Burks v. Shain, 2 Bibb., 341; Witts v. Campbell, 12 Vesey, 492; Hardy v. Scanlin, 1 Miles, 87.)

In Brown v. Hull, 16 Verm., 673, it was held that the next friend is not a party to a suit instituted by a minor by his aid. And it has frequently been held, that a judgment in favor of, or against a minor, not represented by a guardian, or next friend, is not void, and can only be avoided by judicial proceeding. (Austin v. Charlestоn Female Seminary, 8 Met., 186; Porter v. Robinson, 3 A. K., Marshall, 253.)

Whether the present suit was commenced within twelve months from the removal of the disability of minority from the plaintiffs, is not shown by the evidence now before the court. And we will not now undertake to determine upon which party the burthen of showing this rests, if such is the fact. Nor do we, in the present attitude of the case, and without a fuller argument on the point, *469feel called upon to determine whether evidence of res adjudicata, in an action of trespass to try title under our statute, authorizing a second suit to be brought by the plaintiff within twelve months from the final determination of the first one, may be presented under the plea of “ not guilty,” or must be specially pleaded as a matter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in limitation of the plaintiff’s right of action.

The judgment is reversed, and the cause remanded.

Reversed and remanded.