107 S.W.2d 564 | Tex. | 1937
Lead Opinion
This case was decided by the opinion appearing in (Tex.Sup.) 73 S.W.(2d) 490. Motions for rehearing were duly filed. Before action was taken on these motions the personnel of the court was .changed, Associate Justice SHARP succeeding Judge GREENWOOD, and Associate Justice CRITZ replacing Judge PIERSON, de
The parties will be designated here as they were in the trial court. Briefly summarized the facts are:
This suit was filed June 21, 1928, by Permian Oil Company against the defendants, seeking to recover the land described and the value of the oil produced therefrom. Plaintiff established title in John Monroe and then offered in evidence the pleadings and judgment rendered in cause No. 854, John Monroe v. T. F. Hickox, in the district court of Pecos county, Tex. That suit was filed August 22, 1910, and disposed of March 4, 1911, by a take nothing judgment entered against the plaintiff. The petition there was in statutory form of trespass to try title describing sections 103 and 104, Texas Central Railway, as the land sued for. The answer was a plea of not guilty. The present suit involves said section 103. Apparently some of the defendants claim title under John Monroe. There was filed in the former case the court’s findings of fact and conclusions of law. Plaintiff, which holds under Hickox, asserts that it has Monroe’s title by virtue of the former judgment. It is evident from the record that some of the defendants herein claim to have acquired their several titles at a time when that judgment was not properly recorded, as required by statute. Plaintiff made no proof that such defendants were not bona fide purchasers for value or that they bought with notice. The judgment in Monroe v. Hickox and its supporting pleadings was admitted in evidence over the objection of defendants on the ground that such proof was not made and on the further ground that the judgment was either void on the face of the record or else if properly construed did not dispose of the issue of title. Defendants renewed their objections in ⅛ motion to strike the evidence, in which they prevailed after they themselves offered in evidence, over the objection of the plaintiff, the entire record out of which emanated the judgment of Monroe v. Hickox. Their motion resulted in a peremptory instruction against the plaintiff.
Objection was made by the plaintiff that the court’s findings of fact and conclusions of law in Monroe v. Hickox were not a part of the judgment record. We do not agree with this contention.
The phrases “judgment roll,” “judgment record,” and “face of the record” are terms used interchangeably in our decisions. They grow out of the common law where in the earliest cases on officer of courts of record preserved on a scroll of parchment a record of the issues which the contestants agreed to litigate. At that time their pleadings were oral. This roll later embraced tlie written pleadings, the court’s charge to the jury, the jury’s verdict, the court’s final judgment, and other similar matters constituting a part of the proceedings of the trial. One of the purposes of the roll was to enable the proper application of the rule of res adjudicata, the record being preserved among other reasons in order to show what issues had been dis: posed of and the parties to be bound thereby. When inquiry as to what constitutes this record arises, it must be remembered that ordinarily one of the purposes of the inquiry is to properly apply the rule of res adjudicata. Every part of the trial proceedings preserved in courts of record under direction of the court for the purpose of its record constitutes the judgment roll.
The defendants offered the record of the former case for the purpose of establishing either that the judgment entered was void on the face of the record, or if not void, then construed in the light of the judgment roll actually disposed of only one issue, that of boundary, and therefore, they contend, did not operate as a muniment of title; or that it constituted conclusive evidence that the sole issue determined was that sections 103 and 104, as between the parties and their privies, either could not be located on the ground or else were in total conflict with senior surveys 34 and 35, G. C. & S. F. Ry. Co. block 194, and because of which they contend that plaintiff, the successor in title of Hickox, is estopped to now maintain that section 103 can be located on the ground free of conflict. These contentions are again strongly
The principle of res adjudicata is founded in public policy and is as old as English jurisprudence. Fundamentally its purpose is to expedite justice by putting an end to litigation; and to preserve the sanctity of the judgments of the courts by making them immune from collateral attack. Once a court has exercised its functions of decision on an issue over which it has jurisdiction, and that decision becomes final, the parties thereto and their privies cannot escape its binding effect. Lacking this anchorage of finality a ju-⅛ dicial system would be little more than a rule of fiat.
It has been said that the rule finds its application in two classes of judgments issuing out of courts having jurisdiction. One class is encountered where in the first case out of which the judgment issues, and in the second suit where the judgment is offered in bar, the parties are the same, the cause of action is the same, the capacity in which the parties act is the same, and the res or things disposed of are the same. Such a-judgment, if unambiguous, as a general rule is treated as an absolute bar to retrial of the same cause of action on the theory that it has been merged in the judgment. A judgment of this type usually permits of no inquiry into the balance of the record from which it emanates, except in the case of certain well recognized exceptions. Where such a judgment is ambiguous, the judgment roll, and if necessary extrinsic evidence, is admissible, not to contradict the judgment, but only to aid in its construction. The other type is encountered where the parties to a subsequent suit seek to reliti-gate an issue which was disposed of by final judgment in a former suit to which they were parties, although ■ the cause of action may have involved other issues. In the latter instance it has been said the parties and théir privies are estopped to try again such issue disposed of by the former judgment and the entire record in the first case is admissible in evidence in order to determine whether or not the issue involved in the second case was actually disposed of in the first, without reference to the question of ambiguity.
The cases as a matter of fact do not so completely separate themselves into two such sharply defined classifications, but graduate from the one into the other, and hence the explanation for the use by courts of much very general and conflicting language. It must be borne in mind that the purpose of the law remains constant to prevent the failure of justice as the result of permitting the retrial between the same parties or their privies of a cause of action or of an issue which has been finally disposed of.
The judgment in cause No. 854, unless affected by ambiguity leading to the construction sought by defendants, clearly comes within the first classification. It is necessary, therefore, to ascertain whether that judgment is ambiguous. This involves a number of problems. We find no reason to hold it ambiguous simply because it is necessary to refer to the pleadings.' It is true the description of the land and the nature of the cause of action do not appear in the face of the judgment. However, this is supplied by the direct reference to the plaintiff’s pleadings appearing in the face of the judgment. Judgments are construed like other written - instruments. “That is certain which may be made certain,” and being certain, is unambiguous, whether it be a judgment or a writing of other description. By this reference in the judgment there is as effectively supplied the description of the land and the cause of action disposed of as though the judgment had recited both in its face. Freeman on Judgments, § 97; Martin v. Teal (Tex.Civ.App.) 29 S.W. 691; Ruby v. Von Valkenberg, 72 Tex. 459, 10 S.W. 514. The petition and the decree are set forth at the end of this opinion in a addenda note.
But the defendants nevertheless contend that even after referring to the pleadings it is impossible to. know what the judgment decided, and thus being ambiguous it is proper to consult the judgment record from which it appears that the sole issue determined by the court was an issue of-boundary and that, being only a boundary suit, the judgment is void and falls because the description is insufficient, citing the requirements of article 7366, and the decisions of this court to the effect that judgments, in boundary suits ..involving descriptions similar to the one used here, are in
We are mindful that in a number’ of early decisions by a divided court, judgments in boundary suits brought in form of trespass to try title were held to be final notwithstanding the statutory right then existing by which plaintiffs in trespass to try title were permitted to bring a second suit. But while these holdings appeared to be on the theory of res ad-judicata, they may be in part accounted for by recognizing that they also involved the construction of a statute, the court ascertaining from the record that “title” as that term was employed in the then existing statute was not an issue in those cases. There are also cases, construing the former statute making judgments in boundary cases final in Courts of Civil Appeals, from which it might be inferred that the cause of action in a' boundary case in the usual form of trespass to try title differs from that in other trespass to try title cases. Without reviewing these cases it may be said that they were undoubtedly influenced by the fact that they were construing the effect of the statute. We are unwilling to accept cases of either class as- authority for the proposition that different causes of action are involved in trespass to try title suits brought in statutory form one of which turns on the fact of boundary and the other of which turns on some other evi-dentiary fact affecting title.
Measured by the familiar rule, cause No. 854 as tried was a boundary suit. On appeal it would have been judged as such' because the record shows there would have been no suit but for the question of boundaries. Expressions from boundary cases on appeal indicating judgments to be void because the testimony shows a description, apparently sufficient, actually to be insufficient to locate the land on the ground, cannot be invoked on collateral attack to nullify a judgment in trespass to try title where the description on its face is sufficient. Such decisions are dealing with voidable, not void, judgments. But this is not an appeal of the case of Monroe v. Hickox, No. 854. The question here is one of res adjudicata: Does the judgment in cause No. 854 dispose of the title to the land .in question so that the parties and their privies are bound thereby ? Under decisions of this court founded on our present trespass to try title statutes, the contention now made constitutes a collateral attack on the judgment and under the general rule must be judged by the pleadings and judgment alone, unless the judgment because of ambiguity is limited by the judgment roll. Aside from the claim of ambiguity, the judgment in cause No. 854 as it stands is not void because of insufficient description: The description used in the petition in that case was sufficient under the requirements' of article 7366, as was pointed out in the original opinion. The fact that on the trial boundary was the sole controversy controlling title does not keep the former judgment, which disposed of title, from binding the parties and their privies. In trespass to try title determination of the outcome of the' suit through the fact of boundary does not alter the cause of action plead and disposed of by the judgment. In Monroe v. Hickox the cause of action was the title to the land described. These conclusions follow from recognized principles as is pointed out in the well-reasoned opinion in Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 47 Am.St.Rep. 79, where it was decided that a judgment in a boundary suit brought in form of trespass to try title, although disposed of on the fact of boundary, nevertheless was res adjudicata of the issue of title. There the pleadings were in statutory form of trespass to try title. “An issue is the question in dispute between parties to an action, and, in the courts of this state, that is required to be presented by proper pleadings. * * * Thus were the issues presented, and the leading issue was one of title; and the fact that the determination of that may have depended on a question of boundary could not-change the character of the vital issue in the case, for that was but a question of fact, to be considered like any other fact in determining whether the issue of title to the land should be decided in favor of the one party or the other. * * * The issue presented by the pleadings and determined by the judgment, was one of title; and that * * * this depended on the fact of true locality of the boundary between the surveys, could not change the character of that issue.” Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 98, 47 Am.St.Rep. 79. The judgment in Monroe v. Hickox is not void unless construction made necessary because of ambiguity discloses some fatal deficiency.
By the rule thus announced a losing plaintiff in a take nothing judgment would not be foreclosed from bringing a second suit if title itself were not affirmatively established in defendant in the first suit. Under such reasoning every take nothing judgment in trespass to try title would be ambiguous because it would be impossible to know whether it operated as a dismissal or as an adjudication of title, or an adjudication of some right incident to title. Therefore the record could rightly be employed to construe and limit it to the actual issue tried, and if the effect of the take nothing judgment was equivalent to a dismissal, that effect' would permit the- bringing of another suit by the losing plaintiff.
But here 'we are confronted with article 7391 and its construction by this court. That article .reads: “Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.”
When Judge Gaines in French v. Olive announced the rule that the effect of a take nothing judgment in trespass to try title was to hold that the defendant had the better title, his opinion, and the long line of decisions by this court following it, necessarily operated’ to construe article 7391 and the judgment together and in effect announced the rule to be: That when the plaintiff failed for any reason, whether it be due to conflict with a senior survey, outstanding title in a third party, or other lack of title in himself, the judgment left the defendant in possession of the premises; and that such possession imported title; and that title was thereby' established in the defendant.
The party in possession of land is considered to be the owner until the contrary is proved. His possession imports that he holds a title thereto. As was said in Linthicum v. March, 37 Tex. 349: “This has been the repeated language of this court since Hughes v. Lane, 6 Tex. [289] 292, in which it is said: ‘The possession of the defendant gave him a right against the plaintiff, until he showed sufficient title.’ ” Thus the contention that no title was established by the judgment in cause No. 854 seems unsound. In this state it is elementary that no judgment can “establish” “title or- right of possession” in a litigant in the absolute sense of finality against the world. The “title or right of possession established” is limited to the parties bound by the judgment.
In trespass to try title brought in statutory form the plaintiff asserts that he has the title and is entitled to the right of possession. The defendant by his plea of not guilty admits that he has possession
Had the pleadings in this case confined the parties to the issue of locating a boundary, we possibly might face a different case. The cause of action which was asserted against the defendant by the plaintiff in the trespass to try title suit of Monroe v. Hickox, pleaded in general form, was the claim to the title and possession of the land described. The defendant’s plea of not guilty admitted his possession and put in issue the plaintiff’s cause of action. The plaintiff failed and the defendant prevailed. In such an instance both the title and the possession of defendant was established as between the parties by the judgment. In this state a petition limited to the statutory form of trespass to try title always puts in issue both title and possession. Any one of a number of facts may determine the issue, but the cause of action reriiains the same. If the plaintiff seeks to limit the issue to one of such facts, he must do so by special pleading in appropriate form. By so doing he may limit the case to the portion of his land involved in the boundary dispute, or possession, or to some other incident of title.
It plainly appears therefore that under construction long established by this court the judgment in cause No. 854 was unambiguous. Furthermore there was present in the judgment and the judgment roll no other feature which took the judgment out of the general rule. The judgment could not be contradicted by the record, and being unambiguous neither was there anything in it to be interpreted or explained by the record. The judgment roll was properly admitted to test the validity of the judgment, but this only operated to show that the judgment was not void on the face of the record. Neither the rule of res adjudicata nor the rule of estoppel can be invoked to escape this conclusive effect. Instead these principles unite to establish this result. To hold otherwise would be to nullify the meaning of article 7391 as long construed by this court, and would overturn the long line of decisions to the effect that the plaintiff must recover on the strength of his own title and to the effect that possession imports title. Thus it has come about that the rule in this state is recognized to be that a judgment in trespass to try title that plaintiff take nothing by virtue of his suit operates as a muniment of title and adjudges in effect that facts were found to exist which between the parties established in the defendant all the title to the land, including, just as effectively as though-it had passed by voluntary conveyance, such title as plaintiff had.
Defendants also contend the trial court properly instructed the jury to find for the defendants at the close of plaintiff’s testimony because the judgment in cause No. 854 was not recorded as required by article 6638, Revised Civil Statutes. Defendants contend the burden was on plaintiff to prove notice or lack of consideration by defendants before the judgment was admissible. Plaintiff contends the burden was on defendants to prove themselves innocent purchasers without notice before they could receive the protection of that statute. We think that neither contention is correct.
Present article 6638, enacted .February 5, 1840, reads as follows: “Every partition of land made under an order or decree of a court, and every judgment or decree by which the title to land is recovered shall be duly recorded in the office of the county clerk in which such land may lie; and until so recorded, such partition, judgment or decree shall not be received in evidence in support of any right claimed by virtue thereof.”
The law of 1836 relative to registration of deeds which is quite similar provided: “No Deed shall take effect as regards the interest and rights of third parties until the same shall have been duly proved and presented to the court as required by this Act for the recording of land titles.” This act was amended February 5, 1840 (at the same time present article 6638 was enacted), so as to make unrecorded conveyances void as against all subsequent purchasers who established that they had bought for value and without notice. Under the law of 1836 the burden was on the senior unrecorded deed holder to establish that the junior deed holder was not an innocent purchaser for value. Under the act of 1840 this burden was shifted
The case of Kimball v. Houston Oil Company, 100 Tex. 336, 99 S.W. 852, 854, opinion by Judge Williams, construed the Act of 1836 affecting the registration of ■deeds. The question involved was that •of burden of proof, the holder of the junior deed contending that the burden was on the senior unrecorded deed holder to prove that the subsequent purchaser had knowledge of the prior deed. The court held this contention to be correct. Construing the language of the Act of 1836, in connection with the Act of 1840 which amended it, Judge Williams uses this language: “We think it is true that under either statute the burden is upon one claiming against an unrecorded deed to produce evidence sufficient to bring himself within its protection; to show, in other words, that he is one to whom its language applies.”
Continuing elsewhere, while recognizing that the Act of 1836 was a registration act and that the holder under the unrecorded senior deed could offer the deed in evidence in making out his prima facie case, he then says: “When, against such a deed” [referring to the unrecorded senior deed], “is produced a subsequent one from the same grantor, apparently valid, is it not shown, prima facie at least, that the claimant under it is a third party having a right or an interest to be affected by the prior conveyance, and is he not literally within the terms of the statute and entitled to its protection?” He answered by holding that the junior deed holder was then within the protection of that statute and that the burden shifted to the holder under the senior unrecorded deed to prove the junior deed holder was not an innocent purchaser.
The two statutes, the one applying to deeds, the other to judgments, are so similar in their wording as to make it appear that this reasoning applies with equal force in construing article 6638, unless it is inhibited by previous decisions of this court. The statute of 1836 concerning deeds provided that no unrecorded deed could affect the rights of third parties. The statute of 1840, present article 6638, concerning judgments, provides that no rights can be established under an unrecorded judgment. To undertake to establish a right under an unrecorded deed would be the only way a person could affect the rights of third parties and to undertake to establish a right under an unrecorded judgment of necessity would adversely affect the rights of third parties, so that the language of each statute operates to announce the same rule which applies in the one instance to unrecorded deeds and in the other to unrecorded judgments.
Here, as in Kimball v. Houston Oil Company, it is plausibly argued 'by plaintiff that article 6638 is only a registration statute designed to protect creditors and innocent purchasers and that properly interpreted the statute should be construed as our other registration statutes, to place the burden on the subsequent purchaser to establish that he bought for value without notice. It is true this court a number of times has held this to be a registration act and we later quote from some of those decisions. So had the Act of 1836 affecting deeds been held to be a registration act as was pointed out in Kimball v. Houston Oil Company, where Judge Williams quoted at length from Crosby v. Huston, 1 Tex. 203, 238, and then said (referring to Chief Justice Hemphill’s opinion in that case): “The court therefore concluded that proof of the unrecorded instrument, other than the record, might be made; but also held that the ‘letter of the statutes will be departed from only “where the notice is so clearly proved as to make it fraudulent in the purchaser to take a conveyance in prejudice to the known title of the other party.”’ * * * We regard this as a decision of the question in this case, declaring the law to be that the holder of a junior deed taken while the act of 1836 was in force is entitled to the protection of that act until his claim is shown to be fraudulent.” If the Legislature on February 5, 1840, -by the statute covering judgments, had intended to place the burden on the subsequent purchaser - to prove that he bought for a valuable consideration without notice, before he could receive the protection of article 6638, it could have done so by using the same language employed by it- on the same day when it amended the Act of 1836 affecting the registration of deeds, under which amended act this burden was placed on the junior deed holder. Evidently it intended to avoid this by using language similar to that of the original Act of 1836, affecting deeds.
Article 6638 has been construed several times by this court to be a registration
Such we believe is also the rule under article 6638.
Thornton v. Murray, 50 Tex. 161, seemed to go even further and hold as defendants contend. It is there stated: “The evident object of this provision, * * * is not to prohibit the introduction in evidence of a decree or judgment of the class designated, under all circumstances, until recorded, but only to apply the system of registration to such a judgment or décree, and to deny to a ⅞ party the right to so introduce it in evidence unless he shows its registration, or facts which make it, as between the parties and under the general provisions of the registration laws, admissible without registration.”
Also in Russell v. Farquhar, 55 Tex. 355, it is said: “ * * * the statute properly construed did not require the registration- of the former judgment to render it admissible in a subsequent suit for title and partition of the same land between the same parties.”
But in Henderson v. Lindley, 75 Tex. 185, 189, 12 S.W. 979, Judge Gaines demonstrated that the unrecorded judgment was admissible not alone against those who had notice but against all persons. However, he did not construe the statute so as to take away its protection. He only permitted the introduction in evidence of the judgment, which operated to make out a prima facie case. It was unnecessary for him. to comment on the burden of proof which fell on the plaintiff when the defendant introduced evidence to show that he purchased when the judgment was off the record; the trial court in that case appears to have placed the entire burden of proof on the claimant under the unrecorded judgment. The protection of the statute comes to life when the opposing party offers a title acquired while the judgment was off the record. By doing so that party brings himself within the protection of the statute, and the burden is then on the claimant under the unrecorded judgment to prove notice so clearly as to make it fraudulent in the subsequent purchaser to take a conveyance in opposition to the known title of the other party.
The judgment in cause No. 854, Monroe v. Hickox, was improperly stricken from evidence by the trial court. While the burden of proof rested on the plaintiff to show that the defendants had notice of the judgment or were not bona fide purchasers for value, upon the introduction of evidence by them showing that they purchased from or under John Monroe at a time when the judgment was off the record, this burden had not arisen when the motion to strike the evidence was sustained, and the peremptory instruction against the plaintiff was entered. The defendants had not offered their title.
Running through this lawsuit we find the appeal for relief from the mistakes of a party to another suit or the errors of another trial court. But such relief could come here, as is always the case, only at the expense of the rights of many Of those who have been “vigilant and careful.” The fact that the record in this case now shows that Monroe could have prevailed in his suit No. 854 if he had been sufficiently diligent does not weaken but only serves to emphasize the principles reaffirmed in this opinion. “When a party passes by his opportunity, the law will not aid him. In Ewing v. McNairy, 20 Ohio St. [315] 322, the judge says: ‘By refusing to relieve ' parties against the consequence of their own neglect, it seeks to make ■ them viligant and careful. On any other principle, there would be no end to an action, and there would be an end to all vigilance and care in its preparation and trial.’ ” Freeman v. McAninch, supra.
Rehearing
The motions for rehearing are overruled.
Addenda.
(1) The first-amended original petition filed by John Monroe on February 28, 1911, in a statutory form of trespass to try title in said cause No. 854; said amended petition being as follows:
“John Monroe vs. T. F. Hickox, No. 854. “To the Honorable District Court of Said County:
“Now comes John Monroe who resides in Pecos County, Texas, hereinafter called plaintiff, and leave of the Court having first been had and obtained, files this his first amended original petition and complains of T. F. Iliek-ox, hereinafter styled defendant, and for cause of action, plaintiff represents to the Court that on or about the 21st day of April A. D. 1909, he was lawfully seized and possessed of the following described land and premises, situated in the County of Pecos, State of Texas, holding and claiming the same in fee simple, to-wit:
“1st. All of Section No. 104, Block 194, T. C. Ry. Co. original grantees, situated in Pecos County, Texas.
“2nd. All of Section No. 103, Block 194, T. C. Ry. Co. original grantee situated in Pecos County, Texas, described as follows:
“Beginning at a stake and mound at the N. E. Cor. of Sur. No. 102, Blk. 194, T. C. R. R. Co., Cert. 2302, for the N. W. Cor. of this survey.
“Thence east 1900 vrs. to a stake and mound for the N. E. Cor. of this survey.
“Thence South 1209 vrs. to a stk. and md. for the S. E. cor. of this survey.
“Thence West 1900 vrs. to a stk. and md. for the S. W. Cor. of this survey.
“Thence North 1209 vrs. to the place of beginning, and said Section No. 104, Block No. 194, T. C. Ry. Co. is described by metes and bounds as follows, to-wit:
“Beginning at a stake and mound at the N. E. Cor. of Survey No. 103, Block No. 194, for the N. W. Cor. of this survey.
“Thence East 1900 vrs. to stake and mound for N. E. Cor. of this survey.
“Thence South 1209 vrs. to stake and mound for S. E. Cor. of this survey; thence West 1900 vrs. to stake and mound for S. W. Cor. of this survey; thence North 1209 vrs. to the place of beginning.
“That on the day and year last aforesaid, defendant unlawfully entered upon the premises and ejected plaintiff therefrom and unlawfully withholds from him the possession thereof to his damage in the sum of $2,000.00. That the reasonable rental value of said land and premises is $100.00 per annum; that on the date that defendant entered upon plaintiff’s said land, plaintiff had on same a wire fence composed of wire nailed on the posts set in the ground, that defendant has, since said date, broke, tore down and destroyed plaintiff’s said fence and the posts and wire composing the same, to the plaintiff’s damage in the sum of $100.00.
“Therefore, plaintiff prays judgment of the court that inasmuch as the defendant has been duly cited to appear and answer this petition, that plaintiff have judgment for' the title and possession of said lands and premises above described, and that writ of restitution issue, and for his rents, damages and costs of this suit, and for such other relief, special and general, in law and in equity that he may. be justly entitled to, etc.”
(2) The judgment rendered and entered in the minutes of the district court of Pecos county in said cause No. 854, as follows:
“In' the District Court of Pecos County, Texas, Feb. Term 1911.
“John Monroe vs. T. F. Hickox, No. 854.
“On the 28th day of February A. D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and- thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney, and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March Á. D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged and decreed by the court that the plaintiff John Monroe take nothing by his suit against the defendant T. F. Hickox, and that the defendant T. F. Hickox, go hence without day and recover against the plaintiff John Monroe all costs of suit, for which execution will issue. To which judgment of the court .the plaintiff John Monroe in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff’s request and good cause being shown he is hereby given sixty days after the adjournment of this court within which to file his statement of facts herein.”
Dissenting Opinion
(dissenting).
For a statement of this case I refer generally to the opinion of the Court of Civil Appeals, 47 S.W.(2d) 500, and to the opinion of Special Associate Justice FOUTS on the motion for rehearing. 107 S.W.(2d) 564. In this court the case was originally heard by the Commission of Appeals, and the judgment recommended in the opinion of the Commission [73 S.W. (2d) 490] was entered by the Supreme Court. I was unable to agree to the correctness of that opinion and judgment, and so notified my then associates, reserving the right to file a dissenting opinion on motion for rehearing, after a more exhaustive examination of the questions involved. Argument was invited on this motion, as stated in the opinion of Special Associate Justice FOUTS. Upon the argu
For the purpose of presenting the locus of this controversy, I here reproduce a map taken from one of the arguments filed on behalf of defendants in error, which in turn was based on certain maps in evidence. The map is here presented only for the purpose of showing the approximate relative locations of surveys 34 and 35, block 194, and section 103, the land here involved:
Mrs. M. A. Smith, the widow of John Monroe, and the other defendants in error claim title to this land under a grant from the State. The Permian Oil Company claims title from the heirs of Hickox, but the Hickox title in turn depends upon a certain judgment in cause No. 854, John Monroe v. Hickox, entered by the district court of Pecos county on March 4, 1911. John Monroe brought that suit, as owner of section 103, against Hickox, who owned sections 34 and 35, shown on the map, and a ‘Hake nothing” judgment was entered. That judgment is the primary subject of this opinion. The judgment reads as follows:
“In the District Court of Pecos County, Texas. February Term, 1911, John Monroe v. T. F. Hickox.
“On the 28th day of February, A. D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March, A. D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, John Monroe, take nothing by his suit, against the defendant, T. F.
Hickox, and that the defendant, T. F. Hickox, go hence without day and recover against the plaintiff, John Monroe, all costs of suit, for which execution will issue. To which judgment of the court the plaintiff, John Monroe, in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff’s re
“O. K. W. C. Douglas, Judge.”
This judgment was rendered on March 4, 1911, and on the same day the court filed his findings of fact and conclusions of law, which read:
“John Monroe vs. T. F. Hickox, No. 854, in District Court, Pecos County, Texas. February Term, 1911.
“I, W. C. Douglas, Judge of the District Court of Pecos County, Texas, have this day prepared and do hereby order filed in this cause, the following findings of fact and conclusions of law, to-wit:
“Findings of Fact.
"1. Block C-4, G. C. & S. F. Ry. Co., is composed of sixty-four surveys. The field notes show that they were all made by H. C. Barton, deputy surveyor of Pecos County, between the 5th and 20th days of October, 1881. According to the field notes of Survey No. 4 of this block, the northwest corner was marked as follows: ‘Pile of pebbles for the N. E. corner of Survey No. 3, this block from which Capstone Mountain bears south 1500 varas,’ the northeast corner is described as ‘Stone mound from which Capstone Mountain bears S. 19 E. and another Capstone Mountain bears N. 70 E.,’ corners answering to this description were found on the ground located relatively as shown in the sketch of surveyor, W. T. Hope.
“2. Block Z, Texas Central Railway Company, is composed of fifty-four surveys. They were made by F. Schadowsky, between the 4th and 8th days of November, 1882. The beginning calls of this block tie on to Block C-4. There is no testimony locating this block on the ground.
“3. Block 194, G. C. & S. F. Ry. Company, is composed of one hundred surveys, the record showing they were made by I. W. Durrell, deputy surveyor of Pecos County, between the 17th and 31st days of May, 1883. It appears that he made fifteen surveys on each of the first six days and ten surveys on the seventh .day. The beginning calls of this block tie on to Block Z, G. C. & S. F. Railway, but there is no testimony locating on the ground any of the original land marks called for in the field notes.
“3. Block No. 178, Texas Central Railway Company, is composed of thirty-six surveys, the record showing they were made by I. W. Durrell, deputy- surveyor of Pecos County. The first eighteen of these surveys appear to have been made on November 21, 1882, and the last eighteen made on November 22, 1882. The beginning call starts at river survey at No. 543, in the name of H. & G. N. Railway Company. None of the land marks called for by the field notes of this block were located on the ground by any of the testimony.
“4. The river surveys shown on the map of surveyor W. T. Hope were made in the year 1876 by Jacob Kuechler, deputy surveyor of Pecos County, Survey 4, of Block C-4, G. C. & S. F. Railway Company, located on the ground from objects found corresponding to the calls for its northeast and, northwest corners relatively as shown on Hope’s map. Survey 71, I. & G. N. Railway on the map of the surveyor, W. T. Hope, with its northwest corner marked by stone mound; there is no call in the field notes for a stone mound at this point. Survey No. 61, I. & G. N. Railway was located on the ground relatively as shown on Hope’s map by course and distance from the northwest corner of Survey 71, established as aforesaid, and its location verified by a call of its field notes for road on a mesa. Survey No. 3, Runnels County school land, was located on the ground by course and distance based on Surveys 71 and 61, which were located on the ground as aforesaid. All of these locations were made on the ground by surveyor W. T. Hope and were based on actual runnings as shown by the red lines delineated on this map. The balance of the surveys shown on the map of surveyor Hope were platted in by him according to their calls for course and distance based on his actual work on the ground shown by the red lines, and with relation to the aforesaid land marks.
“5. By beginning at the northeast corner of Survey 4, Block C-4, G. C. & S. F. Railway Company, as found on the ground, and running by course and distance and thereby locating Surveys 103 and 104, Texas Central Railway; these two surveys would lie adjoining and immediately south of Survey 3, Runnels County school land, and would not conflict with Surveys 34 and 35, Texas Central Railway. '
“6. By constructing Block 194, G. C. & S. F. Railway, based on the calls for the river surveys, as located on the ground,
“7. Surveys 103 and 104, being the land sued for by plaintiff, are junior surveys to Surveys 34 and 35.
“8. I am unable to follow the footsteps of the original surveyor in establishing Block 194, G. C. & S. F. Ry., either in the original location of (or) the corrected surveys, and I am unable to ascertain the true intention of the original surveyor as to locating this block on the ground.
“9. I am unable from the testimony in evidence to ascertain the true location on the ground of Surveys Nos. 103, 104, 34 and 35, above referred to.
“10. I find that Block 194, G. C. & S. F. Railway, was originally located by an office survey.
“11. I find that the calls of Block 194 to tie on to Block Z and its calls to tie on to the river surveys are repugnant to each other and inconsistent, and I am unable to determine which of these calls should be regarded as a mistake of the surveyor.
“12. I find that the plaintiff is the legal owner and holder of the fee simple title to Survey No. 103, Texas Central Railway, and that he holds Survey No. 104, under a contract of purchase from the State of Texas, in accordance with the school land laws, and that he has made his proof of occupancy thereon as required by law, and that his said sale is in good standing.
“13. Defendant is the holder and entitled to the possession of Survey No. 34, under a contract of purchase from the State of Texas, in accordance with the school land laws, and his sale is in good standing.
“14. The said Hope map is hereby referred to and made a part hereof.
“Conclusions of Law.
“1. The burden of proof is upon the plaintiff to establish the location of the two tracts of land sued for upon the ground, and to show that there is no conflict between said surveys and Surveys Numbers 34 and 35, and said Surveys Numbers 34 and 35 being senior surveys.
“2. It is presumed that the work of an official surveyor was actually done on the ground, but the amount of work he certified to having done within a given time, the character of the work as called for by the field notes, and the lack of evidence found on the ground, discrepancies in distances between objects called for, and the like, may be sufficient to rebut said presumption.
“3. Where there are two theories upon which a survey which is not fixed to the ground by any of its calls can be constructed, and one theory shows a conflict between a senior and a junior survey, and the other theory shows no conflict between them and the evidence, aided by the presumptions of law, furnishes no method for following the footsteps of the original surveyor or for arriving at the intent and purpose of the original surveyor, the presumption of the law will be resolved in favor of the senior survey that there is a conflict, the owner of the junior survey being the plaintiff.
“4. Having found as a fact that the location of Surveys Numbers 34 and 35 and 103 and 104 cannot be located upon the ground from the testimony in evidence, and that there is a total conflict between them based on certain calls and no conflict based on other calls, which theories are irreconcilable, and the true theory unascertainable from the testimony, I conclude that the plaintiff should take naught by this suit and that the defendant should recover his costs herein.
“W. C. Douglas,
“Judge District Court,
“63rd Judicial District.”
Indorsed: “No. 854. John Monroe v. T. F. Hickox. Findings of facts and conclusions of law. Filed March 4, 1911. Frank Rooney, Dist. Clk., Pecos Co., Tex., by H. L. Winfield, Dy.” (All italics mine.)
Monroe’s suit was in the statutory form of trespass to try title, and Hickox’s answer was a plea of “not guilty.” It was in reality a boundary suit, the parties thinking at the time that there was a conflict between the south boundary lines of sections 103 and 104 and the north boundary lines of sections 34 and 35. Of course, the Yates survey, 34½ shown on the map, had not then been established by the state. In fact, the south boundary line of surveys 103 and 104 is shown as conterminous with the north boundary line of surveys 34 and 35 by the General Land Office maps of 1896 and 1907. Both these' maps are in the record as plaintiff’s (Permian Oil Company’s) exhibits. It was not then understood or known that in truth and fact
My immediate purpose is to determine the meaning and effect of the “take nothing” judgment. Under our system of jurisprudence a judgment is to be tested by its substance rather than by its form. Form is of slight importance, and no particular phraseology is required to make a judgment valid. A judgment should, of course, be appropriate to the proceedings in which it is rendered, show affirmatively that the merits of the case have been passed upon, and award the judicial consequences which the law attaches to the ascertained facts. 25 Tex.Jur. p. 446, § 77. Among the requisites of a valid judgment is the universally approved one that where property is the subject of the decree it should be described with certainty, dr furnish means of its identification. 25 Tex. Jur. p. 542, § 81. A judgment must also be sufficiently definite and certain to define and protect the rights of all litigants, and must not be in the alternative or be conditional or contingent. 25 Tex.Jur. pp. 456, 457, §§ 84, 85. The rules of construction as applied to judgments generally is well 'stated in Texas Jurisprudence as follows: “In accordance with familiar principles a judgment is construed as it is written. If plain and unambiguous, it is not to be interpreted in the light of subsequent or prior statements or acts of the court evincing judicial intention when the judgment was rendered. Nor can a judgment be sustained or explained by reference to the understanding of the parties, even though entered pursuant to stipulation. It must be read as an entirety, and if, taken as a whole and construed according to well-known rules, it is unambiguous, no room is left for interpretation.”
However, if a judgment is ambiguous, familiar rules of construction may be applied : “If the judgment is ambiguous, application is made of familiar rules of construction, such as that effect will be given to reasonable intendments, that a writing will be made to harmonize with the facts, that the circumstances will be considered, and that a common-sense construction will be put on language as a whole.” (Italics mine.)
In construing an ambiguous judgment, “it is always proper to look to the entire record, the pleadings, the issues made in the case, the testimony offered in support of the pleadings, the charge, the fact or facts found by the Court, and other proceedings leading up to the judgment.” 25 Tex.Jur. pp. 461, 462, § 89, and the many cases cited in the notes. Not only is it true that a judgment must conform to and be supported by the pleadings and the evidence, but in a case tried to the court “it must conform to and be supported by the findings of fact and conclusions of law.”' 25 Tex.Jur. p. 484, § 103. Not only is it true that a judgment must conform to the verdict (25 Tqx.Jur. p. 484, § 104), but it must conform to the conclusions of fact found by the trial judge when separately stated. R.S. art. 2209, and article 2211 (as amended by Acts 1931, c. 77, § 1 [Vernon’s Ann.Civ.St. arts. 2209, 2211]) 25 Tex.Jur. p. 488, § 106, and cases cited in the notes. As to this rule the statute cited expressly declares: “Where a special ver-
The rules stated above have a direct bearing on' the proper, interpretation of the judgment here involved, 'and are as applicable here as if the case were one of direct appeal from the decree before us for interpretation.
We are compelled to determine the meaning and effect of the judgment in cause 854, previously described, in order to ascertain whether or not it is res adju-dicata on the question of title to the land involved in the instant case. In interpreting that judgment we should -assume that the trial judge who entered it did his duty, and followed the rules of law applicable to the case; that he intended to render a valid judgment, one which would not be set aside on appeal, one appropriate to the proceeding, and which awarded the judicial consequences which the law attached to the ascertained facts; that he intended to make his decree certain, and not conditional or contingent; and that he intended to follow the statute (article 2209, which was but the embodiment of the rule as generally applied by courts) and conform his decree to the “conclusions of fact” found by him and “separately stated,” found, and filed on the very day the judgment was rendered. 25 Tex.Jur. p. 460, § 87; Austin v. Conaway (Tex.Civ.App.) 283 S.W. 189; Freeman on Judgments (5th Ed.) vol. 1, p. 132, § 76; 34 C.J. p. 501, § 794; p. 504, § 797. As a leading authority states: “When the language is susceptible of two interpretations, from one of which it follows that the law has been correctly applied to the facts and from the other that there has been an incorrect application, that construction will be adopted which upholds the judgment.” 25 Tex.Jur. pp. 459,' 460, § 87; Cough v. Jones (Tex.Com.App.) 212 S.W. 943; 34 C.J. p. 501, § 794.
I shall now for the moment assume that the judgment before us (in cause No. 854, previously quoted) is ambiguous, and determine whether or not the judgment roll, embracing in this instance the findings of fact and conclusions of law of the trial judge, previously quoted, were admissible in evidence in this suit. The Permian Oil Company depends for its title upon that decree, and says that by force of that judgment their predecessor in title, Hickox, became the owner of the land here involved, and that it is res adjudicata of the issue of title of' the defendants in error, wha claim under John Monroe, who brought and lost the suit in which the judgment was entered. Of course, if the judgment is not ambiguous, nothing is admissible to explain it. It explains itself. 25 Tex.Jur. p. 459, § 86, supra. Nor can the judgment roll or anything else be used to contradict an unambiguous decree. 25 Tex.Jur. p. 853, § 328. There are exceptions to the rules just stated, but they are not here involved. 25 Tex.Jur. p. 862, § 331. But once it is determined that a judgment is ambiguous, the whole record may be examined to ascertain its meaning, and it will not be given a more extensive effect than is warranted by the record. 25 Tex.Jur. p. 461, § 89; Freeman on Judgments (5th Ed.) vol. 1, p. 134, § 76; 34 C.J. p. 501, § 794; p. 504, § 797; p. 505, § 801; Black on Judgments (2d Ed.) vol. 1, p. 179, § 123; Durden v. Roland (Tex.Civ.App.) 269 S. W. 274; Dunlap v. Southerlin, 63 Tex. 38; Campbell v. Schrock (Tex.Com.App.) 50 S.W.(2d) 788; Houston Oil Co. v. Village Mills Co. (Tex.Com.App.) 241 S.W. 122, 129; Poitevent v. Scarborough, 103 Tex. Ill, 124 S.W. 87; Lipsitz v. First Nat. Bank (Tex.Com.App.) 293 S.W. 563; Barnes v. Hobson (Tex.Civ.App.) 250 S.W. 238; Oklahoma v. Texas, 256 U.S. 70, 88, 41 S.Ct. 420, 65 L.Ed. 831; Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 690, 15 S.Ct. 733, 39 L.Ed. 859; Barton v. Chrestman (Tex.Civ.App.) 275 S.W. 401; Campbell v. McLaughlin (Tex.Com.App.) 280 S.W. 189.
In Texas Jurisprudence (§ 89, supra) the rule is stated as follows: “In construing an ambiguous judgment it is always proper for the court to look to the entire record (including the citation), the pleadings, the issues made in the case, the testimony offered in support of pleadings, the charge, the fact or facts found by the court, and other proceedings leading up to the judgment.” (Italics mine.)
In Freeman on Judgments (§ 77), cited above, the text reads: “If the entry of a judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record, If, with the light thrown upon it by them, its obscurity is dispelled, and its intended signification made apparent, it will be upheld and carried into effect. In case of doubt re
Black on Judgments (§ 123, cited above) states: “The rule for the construction of ambiguous judgments is clearly stated by the supreme court of Kansas in the following language: ‘Wherever the entry of a judgment is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and the other proceedings; and if, with the light thus thrown upon such entry, its obscurity is dispelled and its intended signification made apparent, the judgment will be upheld and carried into effect in the same manner as though its meaning and intent were made clear and manifest by its own terms.’ ”
The texts cited from 34 Corpus Juris declare:
“The legal operation and effect of a judgment must be ascertained by a construction and interpretation of it. This presents a- question of law for the court. Judgments must be construed as a whole, and so as to give effect to every word and part. The entire judgment roll may be looked to for the purpose of interpretation. Necessary legal implications are included although not expressed in terms, but the adjudication does not extend beyond what the language used fairly warrants. The legal effect, rather than the mere language used, governs. In cases of ambiguity or doubt, the entire record may be examined and considered. Judgments are to have a reasonable intendment. Where a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective and conclusive, and which makes the judgment harmonise with the facts and law of the case and be such as ought to have been renderedSection 794. (Italics mine.)
“Where the language of a judgment is ambiguous or its meaning doubtful, reference may be had to the pleadings in the case, and the judgment interpreted in the light which they throw upon it. But if the meaning of the judgment is clear and plain on its face, it cannot be changed, extended, or restricted by anything contained in the pleadings.” Section 796.
“A judgment should be interpreted with reference to the verdict of the jury, and if possible so as to harmonize them. Like rules apply where the facts are found by the court or referee.” Section 797. (Italics mine.)
Writing on “The Judgment as an Estop-pel,” Freeman in his work on Judgments, in part, says: “To determine what was adjudicated in a prior action the record in that case may, of course, be considered. The judgment itself must be properly proved. But inasmuch as the mere judgment may not alone establish the jurisdiction of the court, or show what matters were determined, it is ordinarily necessary to prove the whole judgment-roll or record when a judgment is urged as an estoppel or bar. And even though it may not always be necessary, it is always proper to do so. But as to just what may be regarded as a part of the record for this purpose and what extrinsic matters may be proved or considered, there is no absolute or universal rule. However, it is quite generally agreed that the pleadings,. instructions to the jury and the verdict, or the findings and conclusions, may be looked to to determine what was adjudicated.” (Italics mine.) Freeman on Judgments (5th Ed.) vol. 2, .§ 771.
The Texas authorities are consistent with the texts cited and quoted.
It is also quite elementary that when reference must be had to the record in interpreting an ambiguous judgment, the whole record may be examined. As said in Black on Judgments (2d Ed.) vol. 1, p. 181, § 124: “* * * an(j when a copy of the record of the judgment is required, for the purpose of bringing the case by appeal or writ of error into this court, or bringing suit upon it in another state, or as evidence under an issue of nul tiel record, or to establish a former adjudication of the same subject-matter between the same parties, and indeed in all cases where it is essential to have a complete record of a judgment, the pleadings and process are an indispensable
Indeed, not only is it true that the whole record may be examined in interpreting an ambiguous judgment, but evidence outside the record, even parol, is admissible to show for what the judgment was recovered, ‘‘what was the real cause of action.” 34 C.J. p. 506, § 803; LaBrie v. McKim, 56 Tex.Civ.App. 322, 120 S.W. 1083; Cook v. Burnley, 45 Tex. 97; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; Freeman v. McAninch, 87 Tex. 132, 135, 27 S.W. 97, 47 Am.St.Rep. 79; Reast v. Donald, 84 Tex. 648, 19 S.W. 795; Oldham v. Mclver, 49 Tex. 556, 572.
Is the judgment before us (in cause No. 854) ambiguous? That it is so is not open to discussion. You cannot from the face of the judgment determine the nature of the cause of action, what was sued for, nor what was recovered, if anything; nor does it contain the description of any property or land. As it stands it is not only ambiguous, but absolutely meaningless. When you read it you know that Monroe sued Hickox and lost, but whether the suit was for land, personal injuries, foreclosure of a lien, etc., you cannot determine from the face of the decree. You might infer from the names that it was not a suit for divorce, and that is as definite a conclusion as the face of the judgment warrants. So it was, and is, necessary to examine the record to determine the nature of the cause of action, the description of the property involved, if any, and to ascertain the facts found by the trial court, in order that we may so interpret the decree in such a manner .that it will award the judicial consequences of the ascertained facts. Authorities, supra.
The majority opinion in this case says the judgment is not ambiguous, although it states; ‘‘It is true the description of the land and the nature of the cause of action do not appear in the face of the judgment.” (Italics mine.) The opinion then proceeds to hold, if I understand it correctly, that this is supplied “by the direct reference to the plaintiff’s pleadings appearing in the face of the judgment.” Then, declares the opinion: “By this reference in the judgment there is as effectively supplied the description of the land and the cause of action disposed of as though the judgment had recited both in its face,” citing Freeman on Judgments (5th Ed.) vol. 1, § 97; Martin v. Teal (Tex.Civ.App.) 29 S.W. 691, 692; and Ruby v. Von Valkenberg, 72 Tex. 459, 10 S.W. 514, 515. The language of the judgment to which the opinion makes reference, following recitation of appearance, is found in the following extract: "The pleadings were thereupon read, the evidence introduced, and argument of counsel made, and the court after hearing same,” pronounced judgment, etc. This is a mere recital that the pleadings were read, and no more incorporated the description of the cause of action and of the land contained in the petition in the judgment than it did “the evidence introduced and argument of counsel made.” Of course, the pleadings, like the balance of the record, could be considered in interpreting an ambiguous judgment, but to say that this bare recital that the p'endings were read so incorporates the pleadings in the decree as to relieve it, as it stood, of its ambiguous' character, is a doctrine so novel and strange as to be, I believe, without precedent. Certainly the authorities cited in no manner support it. The text cited from Freeman on Judgments reads: “In view of the principle that that is certain which is capable of being made certain, it is generally held that a reference to the pleadings or other parts of the record is sufficient if they contain an adequate description. If the property is sufficiently described in the declaration it is sufficient for the judgment to refer to it as the premises ‘mentioned in the declaration.’ But if the description referred to is itself uncertain, it cannot aid the judgment, as where a writ is directed to issue to restore to plaintiff possession of the lands, or so much thereof as are not farther south than the boundary line described in the verdict, and the verdict merely designates such line as being seven and nine feet south of a certain hedge. A judgment for ‘the tract of land described in the petition,’ which in fact describes two tracts, is insufficient. But describing property as ‘the property in controversy’ may be sufficient.” Section 97.
Freeman, as shown, has reference to decrees which refer to the pleadings specifically for descriptive purposes, as “the tract of land described in the petition,” etc.
In Ruby v. Von Valkenberg a judgment rendered in 1847 was introduced in evidence, which decreed “that the property conveyed by plaintiff and his wife by deed, of which plaintiff has incorporated a copy into his petition, and ivhich is made part of this decree.” This court simply held that under the law as it existed when the judgment was entered this was permissible.
The question here involved, viz., whether a bare recital that the pleadings were read in a district court case relieved a vague and meaningless judgment of its ambiguity to such an extent as forbids reference to the complete judgment roll in its interpretation, was not involved nor determined by either of the authorities cited. The plain fact is that the plaintiffs in error are depending upon an ambiguous judgment, and the whole judgment roll record is admissible to determine its meaning, not just a part of the record, the pleadings for example, but the whole of it, “so that the court may determine the legal effect of the vahóle of it, which may he quite different from that of a part.” Black on Judgments, § 124, supra. However, if it be said that the bare recital in the judgment that the pleadings were read had the legal effect of incorporating within the judgment itself the entire petition in cause No. 8S4 (which, as a matter of law, common sense, and common practice it does not), still the judgment would not be relieved of its ambiguous character, and resort must still be had to ascertain the character of suit in which the judgment was entered, and the effect to be given to the decree, as awarding the judicial consequences to the determined facts. The petition in form was one of statutory trespass to try title, and' the answer consisted of a plea of “not guilty.” Looking at the petition and answer alone, what sort of suit was it? The answer is that nobody can tell. It might, of course, be one to actually determine who possessed the title to the land described, but it might be for any one of a number of other purposes, viz.:
(1) It might be a boundary suit, to determine a boundary line between two adjacent surveys, for it has long been the law that such suits could be brought in form of trespass to try title; or
(2) It might be an action brought by a grantor to recover the land because of a breach of condition of a deed, as, for example, for failure to pay purchase money notes; or
(3) An action by a landlord who seeks to compel his tenant to vacate the premises upon expiration of a lease; or
(4) An action by an owner whose land has been appropriated for public use without compensation; or
(5) An action to attack the validity of process or sale under execution.
41 Tex.Jur. p. 458, § 5; Weaver v. Vandervanter, 84 Tex. 691, 19 S.W. 889; Kauffman v. Brown, 83 Tex. 41, 18 S.W. 425 ; Andrews v. Parker, 48 Tex. 94; Garner v. Chicago, R. I. & G. R. Co. (Tex.Civ.App.) 10 S.W.(2d) 132; Spencer v. Rosenthall, 58 Tex. 4; Purinton v. Davis, 66 Tex. 455, 1 S.W. 343; Smith v. Cottingham, 20 Tex.Civ.App. 303, 49 S.W. 145; Curran v. Texas L. & Mtg. Co., 24 Tex.Civ.App. 499, 60 S.W. 466; Bull v. Bearden (Tex.Civ.App.) 159 S.W. 1177.
It is obvious that since the judgment interpreted alone by the petition in this case does not disclose which one of the many actions which could be brought iri the form of trespass to try title was in fact brought and tried, it is ambiguous as not disclosing the nature of the action, an important factor in determining the effectiveness of a plea of res adjudicata. Shall we say that when a vendor brings a trespass to try title suit against his vendee because the latter has defaulted in the payment of purchase money, and the court decrees that he “take nothing” in the judgment, without disclosing in the decree that he does this because in his fact findings he has found that the vendee has not defaulted in payment, that thereby the vendee has recovered the land and has his vendor’s title, and that the balance of the record, including the findings of fact, may not be looked to to ascertain what was actually litigated? I think not, although that would be the certain result under the majority opinion. in this case. Shall we say that when a landlord brings a trespass to try title suit against his tenant, and is defeated in fact because the tenancy is not up, that the tenant under a “take
Greenleaf adds in his notes: “It is obvious that, to prove what was the point in issue in a previous action at common law, it is necessary to produce the entire record. Foot v. Glover, 4 Blackf. [Ind.] 313. And see Morris v. Keyes, 1 Hill [N.Y.] 540; Glascock v. Hays, 4 Dana [(Ky.) 58] 59.”
As I understand the majority opinion in this case, it disregards the difference between a trespass to try title suit which involves and determines title, and a trespass to try title suit which involves and determines boundary. After referring to the fact that formerly we permitted two suits for title and only one over boundary, though each might be brought in form of trespass to try. title, and that from 1892, for forty years or more, this court under the statute had jurisdiction over trespass to try title suits when they were in reality title suits, but had none over boundary suits, although brought in the form of trespass to try title, the opinion declares: “We are unwilling to accept cases of either class as authority for the proposition that different causes of action are involved in trespass to try title suits brought in statutory form one of which turns on the fact of boundary and the other of which turns on some other evidentiary fact affecting title.”
That quotation plainly shows that the majority opinion disregards the essential difference between a trespass to try title suit involving and determining title, and a trespass to try title suit involving and determining boundary. The rule thus announced, I believe, is without precedent and without authority, and the opinion, in so far as I am able to understand it, cites none.
For many years after the adoption of the common law and the trespass to try title statute in 1840, our statutes permitted two suits for the recovery of title to lands by the plaintiff, the second within a limited time after the first, although he lost the first one. Then, as now, these suits were to be in the form of trespass to try title. This court, of course, following the statute, recognized that an adverse judgment in the first suit was not res adjudícala or a bar to the plaintiff’s right to timely file and try the second suit. But this court held that if the first suit, though in form of trespass to try title, was in reality a boundary suit, an adverse judgment was res adjudicata and barred the second suit. Jones v. Andrews, 72 Tex. 5, 12, 9 S.W. 170; Spence v. McGowan, 53 Tex. 30; Bird v. Montgomery, 34 Tex. 713: Corporation of San Patricio v. Mattis, 58 Tex. 242.
In the case of Jones v. Andrews, just cited, the court makes clear its recognition of the distinction between a suit involving and to determine title, and one involving and to determine boundary, approving the rule that where a suit, though nominally to try title, was in fact to settle a disputed boundary, it was not a title suit.
It is well within the recollection of the bar generally that from 1892 until a few years back the Courts of Civil Appeals had final jurisdiction over boundary suits, and this court, though clothed with power to hear titlé suits, had no such authority over boundary suits, even though brought in form of trespass to try title. Wright v. Bell, 94 Tex. 577, 63 S.W. 623; Schiele v. Kimball, 113 Tex. 1, 194 S.W. 944; Cox v. Finks, 91 Tex. 318, 43 S.W. 1; Steward
It is perfectly plain from this conclusion that -the words “take nothing” as used in the judgment were not intended to award title to any land — not even a disputed strip to Hickox. The judge said, “I conclude that the plaintiff should take naught” by this suit because the allegedly conflicting surveys could not be located on the ground; in other words, the plaintiff should “take naught” simply because he had failed to make a case.
The words “take nothing” used in the judgment are not words defined by statute; nor are they defined in Words and Phras-' es and other similar works. They are to be interpreted in the same manner that other words are interpreted — and here, as found in an ambiguous decree, must have their meaning determined in connection with the basis of that decree, viz., the findings of fact and conclusions of law of the trial court That by their use, and by the ■ judgment rendered, the court did not intend to award title to section 103 to Hickox is shown by his finding No. 12, quoted above, in which he said: “I find that the plaintiff (Monroe) is the legal owner and holder of the fee simple title to. Survey 103,” etc. It is also plain, I think, that by the judgment the court did not intend to fix or establish any boundary line. The judgment is ambiguous, and that interpretation is the only one consistent with his findings of fact and conclusions of law to the effect that he could not locate on the ground the surveys involved or their conterminous boundaries.
The obj ect and purpose of a suit to determine title and those of a boundary suit are plainly different, and require different types of judgment. The object of a trespass to try title suit to establish and determine title is, of course, to ascertain who has the superior title to the land; and a judgment which describes the land involved as it is described in the petition, either directly or by reference, is sufficient as to description, even though simply a copy of the field notes of the patent — provided, of course, by it the land may be located. Freeman on Judgments (5th Ed.) vol. 1, § 96. The object and purpose of a boundary suit is to ascertain the boundary, and the judgment determines the location of the line on the ground and describes and identifies it. 41 Tex.Jur. p. 680, 681, § 173. And it is elementary that a decree which does not do so is void; and since a description which merely follows that of the patent settles nothing, but leaves the parties where they were when the suit began, the judgment is void. Converse v. Langshaw, 81 Tex. 275, 16 S.W. 1031, and other authorities cited by Justice Higgins in Permian Oil Co. v. Smith (Tex.Civ.App.) 47 S.W. (2d) 500, 507, et seq.
Bearing in mind these differences in the objects and purposes of suits to determine title and those to ascertain and fix boundaries, and the resultant differences in the
In this connection, and without elaboration, I desire to state that I approve what Mr. Justice Higgins has said as to the invalidity of the judgment here involved, because of its failure, in the light of the record, to determine the boundary dispute. See Permian Oil Co. v. Smith (Tex.Civ.App.) 47 S.W.(2d) 500, 507, et seq.
Thus far I have regarded the judgment here involved as one rendered in a boundary suit. If it be said, however, that it was in truth and in fact a suit for title (which it was not), still the result produced by proper observance of the rules of interpretation is the same, viz., that the “take nothing” judgment did not have the effect of awarding Monroe’s title to Hickox. We are dealing with an ambiguous judgment— a meaningless one, until it is read in connection with the judgment roll. When we go to the judgment roll and examine the findings of fact and conclusions of law, it is at once apparent that the court did not intend to award the title to survey 103 to Hickox, because he says, as I have shown, that Monroe owned that survey. An ambiguous judgment is to be interpreted in harmony with the findings and conclusions of the trial court, if this can be done. Authorities supra; R.S. art. 2209, and article 2211 (as amended Vernon’s Ann.Civ.St. arts. 2209, 2211) ; 25 Tex.Jur. p. 488, § 106. Even if it be said that the “take nothing” judgment here was rendered in a title suit, there is still another reason why it was not effective to transfer title from Monroe to Hickox. Assuming that the ordinary effect of a “take nothing” judgment is to transfer title to the defendant, it is plain, I think, that the rule has no application where the court deciding the case is unable to locate the land, and at the very time of the rendition of the judgment finds that it can hot be located.
An action to try title is a proceeding in rem or of the nature of such a proceeding. 41 Tex.Jur. p. 678, § 170. The title is transferred because of the court’s jurisdiction of the land, and the decree operates, not in personam, by compelling the adverse party to execute a transfer, but in rem, upon the land and title to the land. If the title is transferred, the transfer is effected by the judgment itself operating upon the property within the jurisdiction of the court. “The foundation of jurisdiction is physical power” (McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, L. R.A.1917F, 458), that is, the power to seize a thing that actually exists — and the court knows exists — and deliver into the possession of the party to whom has been adjudged rightful possession. A court is without jurisdiction to transfer by mere force of its judgment title to land which the court cannot locate, and expressly finds that he cannot locate; indeed, in this case the court could not be certain of the existence of the land which the suit purported to involve. In truth, the court in his conclusion of law No. 4, heretofore quoted, said that he concluded that “the plaintiff (Monroe) should take naught,” because the surveys involved could not be located. In the light of that conclusion, his “take nothing” judgment must be interpreted, and to say that by it he transferred title to Hickox, the defendant, is not only against sound reason, but would assume that the court deliberately entered a void judgment —one he knew at the time was void — for the reason that it is elementary that a de-_ cree must so describe the property award-1 ed that it may be found and located on the ground. 41 Tex.Jur. p. 683, § 175. If the court was unable to locate the land involved, as he concluded, and yet entered a judgment awarding it to Hickox, then we would be compelled to say he deliberately entered a void decree. The judgment is not to be interpreted in this manner if there is an interpretation which makes the judgment valid. Authorities supra; 25 Tex. Jur. p. 460, § 87; Gough v. Jones (Tex.
“On December 7, 1878, John D. Freeman brought an action against J. F. Mc-Aninch and Daniel McCray to recover a tract of land, containing 622½ acres,— part of one-third of a league of land originally granted to Joseph Washington. The petition was in the usual form of petitions in actions of trespass to try title, and described the land sued for by metes and bounds.
“Defendants demurred to the petition; pleaded not guilty, limitation of three and ten years; set up title in themselves to part of the land, giving description of that which each claimed, under a survey made by virtue of certificate issued to George Allen.
“They also pleaded in estoppel acts of D. C. Freeman, and claimed value of improvements made in good faith.
“The cause was tried before a jury, and, upon a verdict for plaintiff, judgment was rendered in his favor for all the land sued for, which in the judgment was described as in the petition.
“From that judgment, defendants prosecuted a writ of error to the supreme court, where the judgment was affirmed.
“Defendants in that action seek in this to avoid the effect of that judgment, as an adjudication of the title to all the land described in the petition and judgment; and Daniel McCray now asserts title to 134⅝ acres of the land embraced in that judgment, to' which he asserts title through a conveyance made by D. C. Freeman pending that action.”
Daniel McCray sought to avoid the judgment against him to 134⅝ acres of the land because of some oral agréemerit had with the lawyers, which was no part of the judgment roll, and by reason of which he did not introduce in evidence his title. All that Judge Stayton held was that he could not contradict the judgment by evidence of such an agreement, and that he was con-eluded by the decree in the previous suit. Briefly, that is all that was decided, and in no way sustains the contention of the Permian Oil Company in the case before us.
I approve what is said in the opinion of the majority with reference to recordation of judgments, notice, innocent purchasers, etc. From what I have said above my disagreement with the majority on the vital question here involved is apparent. I am of the view that the judgment of the Court of Civil Appeals should have been affirmed; and since this was not done, and for the reasons herein shown, I respectfully dissent from the majority opinion.
