Truehart v. McMichael, 46 Tex. 222

46 Tex. 222 | Tex. | 1876

Moore, Associate Justice.

This is an action of trespass to try title, brought hy appellant H. M. Truehart against appellee W. S. McMichael, for six hundred and eighty-seven acres of land in Hopkins county, patented to John S. Thorn, assignee of Dolores Padillo.

On the trial of the case in the District Court, the defendant admitted that the chain of title, upon which plaintiff relied ' to maintain the action, was perfect, except the copy of the judgment of the District Court of Galveston county, in the case of Henry M. Truehart v. Martin A. Otis and others, relied upon by plaintiff, to show that the title to the land for which he sues is vested in him in entirety. The objections rn’ged by defendant to the copy of the judgment and decree of partition are:

1. That all the proceedings had in said cause are not certified to by the clerk with said judgment. This was unnecessary. It is by and through the judgment and decree that the interest of the defendant in the land is vested in the plaintiff. An exemplification of the judgment roll would be required if the correctness of the judgment was under review, on error or appeal, in an appellate tribunal. For in such case the proceedings which go to make up the record or judgment roll must be looked to in determining whether there is error in the judgment. But when the judgment is adduced as evidence in a collateral proceeding, the rule is altogether different; then the judgment cannot be attacked for errors or irregularities, if the court has jurisdiction of the parties and subject-matter with which it deals. Hence it is the judgment, and not the proceedings had in the case, which must be adduced by the party relying upon the judgment as a muniment of or link in his chain of title. If there is anything in the proceedings in the cause of which the opposite party may avail himself, he should show it; but he cannot require that his adversary shall introduce it in evidence for him. The statute requires the decree of partition, or the judgment by which title to land is recovered, to be recorded before it can he received in evidence in support of a right claimed by virtue thereof, but does not require the record of all the proceedings in the cause. (Paschal’s Dig., art. 4710.)

2. It was also objected that the judgment does not show that the proper parties were before the court, or that they had been properly cited so as to give the court jurisdiction over them. This is a mistake. The judgment entry says: “The defendants, though duly cited, came not; but made default.” This shows that the court considered the question of service, and determined that the defendants were duly served, and were in default by their failure to appear and answer the plaintiff’s petition. If such recitals in domestic judgments are not to be held of absolute verity, when the judgment is relied upon in a collateral proceeding, they are certainly to be taken as prima facie time, and are undoubtedly sufficient to support the judgment rendered upon them. (Freem. on Judg., sec. 130, et seq.) But if these objections to this judgment were well taken, it would be of no importance in this ease. By the admission of the defendant, the plaintiff had shown a perfect title to an undivided interest in the_ land for which he sues. He was, therefore, as has been decided by the court, entitled to recover the entire tract from parties in possession without .title. (Alexander v. Gilliam, 39 Tex., 227.)

The only claim set up by defendant to the land is under the 17th section of the statute of limitations. It is unnecessary for us to determine whether defendant’s possession, or the possession of those from whom he claims to have acquired it, was of a character to enable Mm to claim the protection of this section of the statute for six hundred and forty acres of land, including his improvements, or even for that part of the tract of which there was actual possession, (Word v. Drouthett, 44 Tex., 365;) for evidently he utterly failed to prove possession of any part of the land for ten years by himself and others with whom he has shown any privity whatever. Admitting that Carroll, who was the first occupant, took possession ten years before the commencement of the suit, exclusive of the time not to be computed to complete the bar of the statute, (Wood v. Welder, 42 Tex., 396,) though this is by no means certain, there is no sort of privity whatever shown to exist between him and the defendant, or between the defendant and any of the occupants prior to Bans, wMch was unquestionably necessary to entitle him to claim any benefit from their possession.

The judgment is reversed and the cause remanded.

Reversed and remanded.