54 Tex. 193 | Tex. | 1881
The affidavit for citation by publication in the justice court, in the case of Stark v. Huff, was based upon the ground that the residence of the defendant was unknown.
Under the law then in force, citation by publication was authorized in justice courts only upon affidavit that the defendant was absent from the state, or that he was a transient person. Pasch. Dig., art. 1190. Compare District Court Act, art. 25.
It is a well established general rule, that if it affirmatively appears from the record, either that the court, did not have jurisdiction of the subject-matter or of the person by some mode of procedure authorized by law, where this is required, as by our statute governing proceedings in justice courts, then the judgment will be held void, even upon a collateral attack. Freeman on Judgments, ch. 8.
In this case the record of the justice court affirmatively shows that the judgment by default against Huff was rendered upon citation by publication, issued upon a ground not authorized by the statute, and was consequently void, and not voidable only.
Such citation being but a substitute for personal service and ex parte in its character, should be strictly con- . strued. Wilson v. Palmer, 18 Tex., 596; Edrington v.
The authorities aE hold-that a purchaser at a judicial sale wiE be chargeable with notice whether the court had jurisdiction to pronounce the judgment or decree under which it was made. Chambers v. Jones, 72 Ill., 281.
The judgment being void, the sheriff’s sale under it did not of itself divest Huff of his title to the land, and he was not bound to refund the purchase money paid the sheriff. Edrington v. Allsbrooks, 21 Tex., 189. Otherwise he might indirectly be forced to pay an indebtedness which he did not owe.
Neither was it sufficient to sustain the statute of Emitations of three years. Wilson v. Palmer, 18 Tex., 592.
Without deciding that a case might not arise in which there would be such adverse possession and enjoyment of land by the use of the timber thereon as would support the statute of Emitation, we are of opinion that the occasional use of the land for timber purposes, without actual residence upon or cultivation of any part of it, as shown by the testimony in this case, was not such open, notorious and visible occupation as would constitute that adverse possession, use or enjoyment, by which the presumption of notice and acquiescence upon the part of the true owner would arise to bar his right, as was evidently intended by our statute of limitations of five years. ■ Pasch. Dig., art. 4623; Mitchel v. Burdett, 22 Tex., 633.
This view is sustained by the courts of several other states construing their statutes. Loftin v. Cobb, 1 Jones (N. C.) Law, 406; Bartlett v. Simmons, 4 id., 295; Watts v. Griswold, 20 Ga., 732; Hole v. Rittenhouse, 37 Penn. St., 116; Angell on Lim., §§ 392-4.
The defendants, Stegall et al., having claimed title through the sheriff’s deed under the judgment and execution against plaintiff Huff, he was not required to de
Judgment affirmed.
Affirmed.
[Opinion delivered January 7, 1881.]
