Humphrey v. Beaumont Irrigating Co. (41 Tex. Civ. App. 308, 1906)

REESE, Associate Justice.

Appellant brought this suit against appellees to recover a tract of 900 acres of land, a part of the David Choate league in Jefferson County. Upon trial by the court without a jury there was judgment for defendants, Beaumont Irrigating Company, et ah, from which plaintiff Humphrey appeals.

The material facts are as follows: The league of land, of which the land sued for is a part and which lies on the south side of Pine Island Bayou in Jefferson County, was granted to David Choate in 1835. David Choate conve3red the league to John York in 1836. By power of attorney executed June 9, 1847, York gave James Cox full power and authority to sell and convey the league, under which power of attorney Cox sold and conveyed to Samuel L. Fowler, June 15, 1847. By deed dated October 10, 1857, Fowler conve}red the 900 acres in controversy to John Linton. All of these instruments were duly recorded in Jefferson County.

On May 26, 1859, Wm. R. Friend, the duly appointed and qualified administrator of the estate of John York, deceased, filed in the District Court of Jefferson County a petition in trespass to try title against Samuel Fowler, John Linton, S. G. W. Swift, Edward Arthur and Young Golman, to recover the David Choate league. The land sued for is described in the petition as containing one league of land being the same granted by the authorities of Coahuila and Texas to David Choate, lying in Jefferson County and situate on the north side of “Pine Island” and east of the old road leading from Pine Island Bayou to Bevil’s Settlement, about 15 miles west of the Neches River. In addition to such full general description the field. notes of the league, giving the boundaries, are set out in full in the petition. No service being had on Fowler, Linton and Arthur, at the May term, 1860, an order was made by the court reciting that necessary affidavit had been made, and ordering that service be had on them by publication. A citation was thereupon issued for Fowler, Linton and Arthur of which publication was duly made as required by law and return thereof made November 26, 1860.

The statement of plaintiff’s cause of action contained in said citation is as follows: “Whereas, Wm. R. Friend, administrator of the estate of John York, deceased, on the 26th day of May, A. D. 1859, filed his petition in said court alleging that on the first day of June, A. D. 1857, he, petitioner, as administrator of the estate of John York, deceased, was seized and possessed as said administrator of said York, to one league of land, lying and situate in said county of Jefferson on the north side of Pine Island Bayou and while your petitioner, Wm. R. Friend, as administrator was so possessed and seized of said league of land on the 1st day of June, A. D. 1857, one Samuel L. Fowler, John Linton, and Edward Arthurs, and others, with force and arms entered upon and took possession of said land and ousted and evicted the said Wm. R. Friend, Admr., therefrom, and have ever since retained and forcibly held possession thereof, using and enjoying the fruits thereof to the value of two thousand dollars by the year and to the damage of the estate of the said John York, deceased, and of your petitioner, as the administrator thereof, 'as aforesaid, ten thousand dollars.” No other citation for these parties appears in the record. The cause was docketed as “No. 328.”

The David Choate league was in Jefferson County, on the south side of Pine Island Bayou, which was, at the time of the institution of the suit, the northern boundary of Jefferson County from the Neches River to the east line of Liberty County. The record does not show that any pleadings were filed by any of the defendants except Swift, who was a resident of the State, and for whom answer and amended answers were filed by J. K. Robertson, his attorney. There was no appearance for any of the other defendants, unless such appearance be presumed from certain recitations in orders and judgments made, and hereafter referred to.

At the spring term, 1865, the death of Fowler was suggested and scire facias ordered to his legal representatives, but the record does not show that it was ever issued or served.

On the first day of the fall term, 1866, the cause was dismissed for want of prosecution, and on the third day of the term it was reinstated on the ground that the scire facias to Fowler’s legal representatives had never been served, and alias was ordered to issue. The judgment of reinstatement recited that the “motion was argued by counsel for plaintiff and defendant.”

At the spring term, 1868, an order was entered “Continued by consent.” At this term Robertson had leave to withdraw the answer filed by him for Swift, for whom R. H. Leonard afterwards appeared as attorney.

At the spring term, 1869, the cause was continued, no counsel appearing for either party.

On May 6, 1869, John Linton sold and conveyed to Thomas Byrne the 900 acres in controversy, the deed being recorded in Jefferson County August 9, 1869.

Wm. R. Friend resigned as administrator of the estate of York in 1861 and in February, 1862, H. Clay Pleasants was appointed administrator de bonis non, but no scire facias was issued to him nor did he appear and make himself a party to the suit No. 328 until May 13, 1870, as hereinafter stated.

On November 2, 1869, the cause was again dismissed for want of prosecution. At the succeeding term, May 13, 1870, H. Clay Pleasants, as administrator de bonis non of the estate of York, filed a motion to reinstate, which was on the next day, May 14, 1870, reinstated on the docket. R. H. Leonard, attorney for Swift, filed his written consent that the cause be reinstated. The judgment of reinstatement is here given in full inasmuch as appellees insist upon the binding force of certain recitations therein as showing appearance by John Linton.

“Be it remembered that on this day came on to be heard the motion to reinstate this cause, and thereupon the parties announced themselves ready for the hearing thereof, and the court, having heard the said motion and the evidence thereon and argument of counsel, and it appearing to the court that this cause was dismissed from the docket at the last term of this court and that the said entry of dismissal thereof was made when the said court was without jurisdiction to make the same, because the resignation of the said Wm. B. Friend, administrator of the said John York, had before that time been suggested, and it also appearing that no scire facias had ever been issued or served, before the said entry of dismissal, on the legal respresentatives of said York, deceased, to bring in the legal representatives of the said York to be made plaintiff herein, and the parties hereunto consenting.

' “It is therefore considered, adjudged and decreed that the said motion be and is hereby sustained; that the said entry of dismissal be and is hereby set aside, vacated and annulled and held for naught, and the said cause be and the same is hereby reinstated in this court and placed on the docket thereof, and that the same proceed as if no.entry of dismissal had been made. And thereupon H. Clay Pleasants makes known to the court that the said Wm. B. Friend, in the year 1861 resigned his trust as administrator of the estate of the said John York and that the said H. Clay Pleasants is now the administrator of the estate of the said John York, deceased, and asks the court that he be admitted here as the administrator of the said decedent, John York, to make himself as such a party plaintiff, which is hereby accordingly granted and that said H. Clay Pleasants as administrator of the estate of the said York, deceased, be admitted here as the legal representative and administrator as aforesaid, to prosecute in that capacity as plaintiff in this cause, and thereupon the parties, plaintiff and defendant, asked leave to amend, which leave is now granted, and thereupon this cause was continued by consent of parties.”

On November 25, 1870, judgment final was entered in favor of Pleasants, administrator de bonis non of York, and against Samuel L. Fowler, Young Golman, John Linton, Edward Arthurs and S. G. W. Swift, for the league of land sued for, except 260 acres claimed by Swift for which he had judgment.

Both John Linton and Thomas Byrne were nonresidents of the State of Texas.

Although the motion to reinstate in May, 1870, was not made until the succeeding term after the suit had been dismissed, the record does not show any notice to any of the defendants of such motion, it appearing that in fact the order of reinstatement was made on the succeeding day after the motion was filed.

Appellant has, by mesne conveyances, whatever title was conveyed to Thomas Byrne by the deed to him of John Linton of May 6, 1869.

Appellees have by mesne conveyance under the heirs of York, whatever title his estate had under the facts herein stated. Linton having good title under York and having conveyed the same to Byrne, the title of appellant and his right to recover must be conceded unless the effect of the judgment in cause No. 328 was to divest the title conveyed to Byrne by Linton. Byrne having purchased before the judgment his title would not be affected thereby unless he purchased pendente lite.

The suit which resulted in the judgment against Byrne’s vendor was instituted in 1860, several years before Linton sold to Byrne, but it is settled law in this State that Us pendens, in order to render the judgment in the cause binding upon a purchaser from a party to the suit, does not begin until the service of citation or process, or such voluntary appearance as would give the court jurisdiction. (Smith v. Cassidy, 73 Texas, 165.) This view is accepted by appellees, who insist that the citation by publication upon Linton in 1860 was sufficient for that purpose.

The law with regard to such service at that time was substantially the same as it is now as embodied in article 1235, Revised Statutes. (Pas. Dig., art. 25.)' The citation in such case to nonresidents, and persons whose residence is unknown, was required to contain a c