Grassmeyer v. Beeson , 18 Tex. 753 ( 1857 )

Wheeler, J.

The questions now presented, which were not determined upon the former appeal, (13 Tex. R. 524,) and which are deemed to require notice, arise upon the allegations of fraud, and the effect of the decree for specific performance and partition.

Having heretofore determined that the Court had jurisdiction to render the decree, it is perfectly clear that it is conclusive of the questions adjudicated therein, and that they are not now open to examination or discussion, unless the decree was obtained by fraud. (Shannon v. Taylor, 16 Tex. R. 413.) However obtained, it will not be questioned that it was competent for the party whose interest was affected by it, to acquiesce in and abide by the decree, if he saw proper. If he is content, as it seems he has been for the space of fifteen years,— and the evidence leaves little room to doubt that he must have been aware of it,—it would seem that a stranger, one who was not a party or privy, and who does not claim under the party, or pretend to have any right or interest to be affected by the judgment, cannot impeach it. But if he can, there was no evidence of fraud, which required the Court to leave any such question to the jury. If the plaintiff’s attorney did draw up the answer of the curator, for him, that, in an action of this nature, which was only intended to perfect an equitable into a legal title and have partition, which the curator had no reason to suppose the absentee would have opposed if present, was no evidence of fraud. The curator was under no obligation or necessity to employ counsel - and litigate the case, or to make opposition, further than Qto require the plaintiff to establish his right by proof. The answer he adopted had that effect; and that was sufficient; especially as the absentee was also represented by an attorney of the Court. There is no pretence that the latter colluded with the plaintiff to defraud the absentee, or that he was wanting in fidelity to the party he represented. There is as little ground to impute a fraudulent design to the curator. When it is considered that Kennelly has since been in the country and there is reason to believe he must have known of this judgment, and he has not complained of it, it cannot be deemed that the evidence affords ground for even a suspicion -that it was obtained in fraud of his rights. If, after so great a lapse of time, and under circumstances like these, the judgments of the Courts and the titles and rights depending upon them, were liable to be set aside and annulled upon such evidence as this, there would be no security for titles or property. Instead of being protected by the certain and fixed principles of the law, they would be liable at all times to be defeated by the prejudice, whim or caprice of a jury, on some such fanciful and imperceptible ground as a suspicion of latent fraud, which was not susceptible of proof. There must be some proof to warrant the setting aside of judgments, and the annulling of titles on the ground of fraud. It must not be on mere surmise or suspicion, nor upon evidence which does not necessarily, or naturally and reasonably tend to that conclusion. (1 Story Eq. Sec. 190; 1 Hovenden on Frauds, 24.)

In respect to the effect of the decree, and the partition of the land in pursuance thereof, it unquestionably was valid and effectual to vest in the plaintiff the title to the part conveyed to him under and in obedience to the decree. The Court acted in the matter of decreeing a specific performance and partition, in virtue of its powers and jurisdiction as a Court of Equity ; and not by virtue of an authority conferred merely by the Statute. As a Court of Equity, it possessed full power and authority to decree partition and provide for carrying its decree into effect, by appointing Commissioners and directing a conveyance. (1 Story’s Eq. Ch. 14, Sec. 656, et seq.) The Statute (Hart. Dig. Art. 2617, et seq.) was doubtless borrowed from the legislation of States, where, by reason of the inadequacy of the remedy afforded by the Common Law writ of partition, (for until the Statute of 31st Henry VIII, Ch. 1, and 32 Henry VIII, Ch. 32, no writ of partition lay at law fora joint tenant or tenant in common) legislation was necessary to enable parties to obtain partition in a Court of law. But the giving of the remedy by Statute in a Court of law has never been deemed to take away, or in any degree to abridge the original and inherent powers and jurisdiction of the Court of Chancery in respect to the partitioning of estates. The Statute prescribes a procedure which parties may adopt if they see proper; but it is not obligatory. Our Courts, possessing the powers of Courts of Chancery, may proceed to administer relief upon the principles of equity, as fully and completely as a Court of Chancery in England could do, without the aid of the Statute. The foundation of the jurisdiction of equity is not in the Statute, but in the judicial incompetencv of the Courts of Common Law, to furnish a plain, complete and adequate remedy ; and in complicated cases, the Statute would afford a very inadequate and incomplete remedy. It is usual to provide in the decree, for the Commissioners to report; and upon confirmation of their report, to direct conveyances to be made. But it is competent for the Court to direct the manner of making the partition, and to decree the making of the conveyances, without the necessity of a report and decree of confirmation. The Court may, in the first instance, direct conveyances to bo made in pursuance of the allotments of the Commissioners, if that be deemed proper. There can be no doubt that the powers of the Court are adequate for this purpose ; and if the decree should be erroneous, none but a party or privy, or some one whose interest is in some way affected by it, could complain or take advantage of the error. The decree cannot be collaterally impeached by a stranger. The decree and partition vested in the plaintiff the exclusive right and title in the land set apart and conveyed to him under and in pusuance of the decree ; upbn which he was entitled to maintain his action.

But if the partition had been invalid, still the decree, without partition, vested in the plaintiff an undivided interest in the land, and constituted him a tenant in common with the original grantee ; and that was a sufficient title to enable him to maintain his action against this defendant. We have heretofore decided that one tenant in common may maintain trespass to try title against a stranger. (Croft v. Rains, 10 Tex. R. 520.)

It is scarcely necessary to say that the removal of the grantee from this to another of the States of the Mexican Confederacy in 1833, was not an abandonment of the country, within the inhibition of the 30th Article of the Colonization Law of the 24th of March, 1825.

The plaintiff’s was a good and valid title to the land for which he sued ; and there was nothing in the matters of defence, urged against it, to defeat his right to a recovery.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.