80 S.W. 872 | Tex. App. | 1904
This was an action in the usual form of trespass to try title, instituted by appellants against a number of defendants, among whom was the appellee George W. Cox, the others having disclaimed at the trial. The appellee George W. Cox answered by general demurrer, general denial, not guilty, and specially that on the 26th day of February, 1889, one John M. Scudder filed a suit in Justice Court of Mitchell County, Texas, against one W.W. Smaill, in cause No. 1035 on the docket of said court, and made a false and fraudulent affidavit, for the purpose of procuring a citation by publication, that said Smaill was a nonresident of the State of Texas. It is alleged that said Scudder knew said Smaill intimately, and evidently knew the place of his residence at the time of making said affidavit, which was alleged to have been in Denton County, Texas. The answer alleged that said affidavit was made for the purpose of procuring a fraudulent judgment against said Smaill, without the knowledge or notice of said Smaill, with the purpose in view of getting the title to the section of land in controversy in this suit. That said Smaill never had any notice of the pendency of said suit, and that he never authorized anyone to appear and answer for him. The appellee further specially pleaded that he and his vendors paid a valuable consideration for said land, and that they are innocent purchasers without notice. There were other special answers which are not necessary to be noticed.
Upon the trial the jury returned a verdict for appellee upon a charge from the court to the effect that if they found from the evidence that *417 at the time of the institution of the suit above referred to, and the procurement of the writ of attachment which was levied upon the land in controversy, the defendant in said suit was a citizen of the State of Texas, and John M. Scudder knew of such residence, and said affidavit was false and fraudulently made, then in that event to find for the defendant. Dr. W.W. Smaill is the common source of title. Appellants claim through an attachment lien by virtue of an attachment, dated March 6, 1889, and levied upon the land in controversy as the property of said Samill on the 11th day of said month, issued in cause No. 1035 already referred to. The appellee claims title through a deed of conveyance executed by said Smaill June 29, 1889.
All of the assignments of error, in one form or another, challenge the appellee's right to attack the judgment of the Justice Court of Mitchell County for fraud, and in our opinion they must be sustained. A copy of the judgment in the justice court case, which is incorporated in the record, recites that the defendant had been duly and legally cited to appear, and also that he appeared by his attorney under appointment of the court. It is well settled that fraud of a party does not render the transaction absolutely void within itself, but simply affords ground to have it declared void by a proper proceeding seasonably instituted for this purpose. Judgments constitute no exception to this rule. Murchison v. White,
It is asserted by appellee in this case, however, that he occupies the position of a stranger to the judgment against Smaill, and that he is therefore authorized to attack it collaterally. But we are clearly of opinion that he occupies the relation of privy to the defendant in said judgment, and that both are to be governed by precisely the same rules. A purchaser of lands from a defendant in a suit in which the lands have been attached takes them subject to all the contingencies of the suit, and is bound by the judgment therein. Paxton v. Meyer,
That this is a collateral attack there can be no doubt. As said by Mr. Justice Denman in Crawford v. McDonald,
It is unimportant that the justice court judgment failed to foreclose the attachment lien. The proper course seems to have been pursued. The judgment recites the issuance and levy of the writ, and execution was subsequently issued on such judgment and the land sold. Sayles' Civ. Stats., art. 214.
Reversed and rendered.
Writ of error refused. *419