| Tex. | Jul 1, 1872
The general rule of law that the judgments of a court of competent jurisdiction cannot be collaterally impeached has been too long and thoroughly settled upon principle and authority to be now called in question. And this rule, when properly applied, will most definitely decide and determine all the many apparently complicated questions presented in the record of this cause.
In 1851, Daniel Cadwell sold to B. J. Fortson the land involved in this suit, and in 1857 he obtained a judgment in the district court for the balance of the purchase money due him, and a decree foreclosing the vendor’s lien, with an order to the probate court to have the land sold to satisfy the judgment. The order was made by the probate court for that purpose; the land was sold in obedience to the order, the purchase money was paid, and the probate court affirmed the sale. Appellant’s vendor became the purchaser, and took possession of the land and held it until 1869.
It appears that in 1856 the probate court, by an order entered upon its records, set aside two hundred acres of the same land as the homestead of the family of B. J. Fortson, deceased; and in 1869, the appellees, children of B. J. Fortson, deceased, got possession of the land,
The first question presented by the record is, by what right do appellees claim the exemption of a homestead out of land belonging to or claimed by their deceased father at the time of his death ? The constitutional exemption is to the head of a family, and not to the children, at least so long as the parents, or either of them, are living. It would appear from the record that the mother of appellees is still living, and appellees have not lived with their mother for many years; and it may be much doubted, while she lives, whether any one but the w-idow of the deceased, and the mother of the children, could set up any claim to the homestead exemption. In the case of Woods and Wife v. Wheeler, 7 Tex., 13" court="Tex." date_filed="1851-07-01" href="https://app.midpage.ai/document/wood-v-wheeler-4887438?utm_source=webapp" opinion_id="4887438">7 Texas, 13, it was held that at the death of the husband, the surviving wife became the head of the family, and that she alone is entitled to claim the homestead and other exempted property; and a similar doctrine is held in Brewer v. Wall, 23 Texas, 580, and in Tadlock v. Eccles, 20 Tex., 782" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/tadlock-v-eccles-4889108?utm_source=webapp" opinion_id="4889108">20 Texas, 782. But we do not consider this question material to the determination of this cause.
The land in dispute was bargained for by appellees’ ancestor in 1851, but was not paid for when, in 1856, the probate court set apart two hundred acres as a homestead ; but no title was ever executed to the ancestor of appellees, and he never owned the same. It is from the property of a decedent that the Constitution and laws make an exemption of a homestead, and not from the property of a stranger. But this question has been
There is no denial that Cad well held a vendor’s lien on the land, and certainly it cannot be doubted that the district court had jurisdiction to foreclose that lien, and there is no attempt to impeach that judgment for irregularity or fraud. That judgment, therefore, must be considered as a finality, and a settlement of the rights of the parties. That judgment was certified to the county court; and though there may have been a technical objection to the wording of the decree of the district court, yet the probate court, by a regular order, executed that decree in compliance with the letter of the law. The land was sold, the purchase money paid, and the sale confirmed, and title executed, and the purchaser received a good and. indefeasible title as against the estate. And though a portion of the land might have sold for a sufficient sum to pay off the judgment lien, yet it was a question for the discretion of the court
From the view of the law of this case as herein expressed, it is manifest that the district court of Navarro county, in 1871, had no jurisdiction over the judgment or decree of a former court to revise or correct the same, and more especially as that was a judgment of a court of competent jurisdiction, unappealed from, and unimpeached for mistake or fraud; and as that judgment had been fully executed, and became a finality, it was the duty of the court to have regarded it as an end of the controversy, and to have adjudged to the appellant his rights under that former judgment, and the sale made in conformity thereto, as measured by the law. The judgment of the district court is therefore reversed, so far as it gives to appellees two hundred acres of the land in controversy as a homestead, and reformed so as to give to appellant the land described in his petition below, and for all costs incurred in this behalf, and also that he have a writ of possession.
Eefobmed and rendered .