Dalton v. Davis , 1927 Tex. App. LEXIS 338 ( 1927 )

On Motion for Rehearing.

Appellant vigorously challenges the correctness of the decision herein to the effect that the judgment in favor of Davis and against appellant would be a bar to appellant’s cross-action in trespass to try title, and asserts that that holding involves an erroneous presumption on the part of this court that the appellant had no other claim to the premises except that shown by the canceled sheriff’s deed.

Appellant suggests that he might, on the trial of his cross-action, be able to produce a deed from Davis and wife subsequent to the sheriff’s deed. After a careful review of the motion, it is believed that the statement in the opinion that appellant could not, without setting aside the judgment in favor of Davis and against him, successfully prosecute a suit against Davis and wife in trespass to try title, is correct. A suit to remove cloud from title can only be maintained by one having title to the premises. 32 Cyc. 1329; Armstrong v. Wilson (Tex. Civ. App.) 109 S. W. 955.

It is recited in the judgment in the instant ease that appellee Davis held a perfect title to the premises except for the cloud cast thereon by the execution sale and sheriff’s deed thereunder, and this finding or assumption was a necessary predicate for judgment in favor of appellee Davis as against appellant, Dalton.

The rule is well settled that:

“Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in determination of an action before a competent court in which final judgment or decree is rendered upon the litigation, is conclusively settled by that judgment or decree as between the same parties, and cannot again be litigated, whether claim, demand, purpose, or subject-matter of the two suits is same or not.” Stephenson v. Miller-Link Lumber Co. (Tex. Com. App.) 277 S. W. 1039, and authorities there cited.

Therefore it is concluded that all claims which appellant may have had to the land up to and including the time of the trial of this cause, are foreclosed by the judgment rendered against him, and that his only recourse is a suit in the court rendering such judgment to vacate it or set it aside, and that the erroneous action of the court in rendering judgment against him on his cross-action becomes immaterial and affords no ground for reversal.

The motion for rehearing is overruled.