LEVY v. ROPER et al., 256 S.W. 251

GEEENWOOD, J. In 1903, B. B. Sellars and wife conveyed to Ward Eoper 320 acres of land in Hill county, in consideration of $10 cash, and two vendors’ lien notes, one for $490, due October 1, 1903, and the other for $500, due October 15, 1904. J. H. Eoper, brother of Ward Eoper, was surety on the $500 note. In 1904, Ward Eoper and wife conveyed to defendant in error, E. L. Hedrick, in consideration of $860 in cash, a specific tract of 172 acres from the tract of 320 acres.

The $490 note, given by Ward Eoper to secure part of the purchase price of the 320 acres, was paid by him, and the $500 note was transferred to D. C. Walden. Ward Eoper died on September 16, 1911, leaving as the heirs to his estate a widow and five children, who are defendants in error herein. On October 9, 1912, the district court of Johnson county rendered a judgment in favor of D. O. Walden against J. H. Eoper, for the amount of the $500 note, with foreclosure of vendor’s lien on the 320 acres tract of land, against E. L. Hedrick, J. H.

Eoper, and the widow and children of Ward Eoper, deceased, of whom three were minors. The judgment recited that J. H. Eoper and E. E. Hedrick were personally served with citation in the suit of D. O. Walden, and that they failed to appear or answer. The judgment recited that the widow and children of Ward Eoper appeared by their attorney. There was no recital of any appointment of a guardian ad litem for the minors. On February 4, 1913, the 320 acres were purchased by plaintiff in error, Sam Levy, for $729.95, at sheriff’s sale, under order of sale issued on the aforesaid judgment.

On August 15, 1918, Sam Levy filed a suit in the district court of Hill county against the widow and children of Ward Eoper and against E. L. Hedrick, to remove cloud from his title to the 320 acres of land. On November .15, 1918, the widow and children of Ward Eoper brought suit in the district court of Johnson county, against Sam Levy, D. O. Walden, J. H. Eoper, and E. L.

Hedrick, to set aside the judgment’ against them, foreclosing the vendor’s lien on the 320 acres, and to set aside the sheriff’s sale, and to enjoin the prosecution by Sam Levy of the suit filed by him in the district court of Hill county, on the following grounds: First, that the widow and children of Ward Roper did not appear in person or by attorney in the suit brought by D. O.

Walden; that they were not served with citations in the suit, and had no knowledge of the suit, judgment, or sale until immediately before the filing ofi this action; and, second, that no notice was given to the widow and children of Ward Roper of the sheriff’s sale of the 320 acres of land, resulting in the land bringing an inadequate price, the land being worth ?1,500 at the date of sale. Defendant in error R. D.

Hedrick filed a cross-action, whereby he sought to set aside the judgment of foreclosure and the sheriff’^ sale, and to enjoin plaintiff in error, Lgvy, from prosecuting, against him, the action of trespass to try title to the 320 acres, on the ground that the judgment foreclosing the vendor’s lien was void because rendered in a suit in which the widow and children of Ward Roper made no appearance and .were not cited. No avernient was made that Hed-rick was not personally cited in the suit brought by Walden, nor that Hedrick was not given due notice of the sheriff’s sale.

The trial court refused a peremptory instruction to return a verdict in favor ofi plaintiff in error on the cross-bill of R. L. Hedrick, and submitted to the jury only two issues. In response to the first, the jury* found that the widow and children of Ward Roper had no notice of the time and place of sale of the 320 acres. In response to the second, the jury found the ages of the children, showing that three of them were minors when the decree of foreclosure was entered. Judgment was rendered in the trial court for R. L.

Hedrick and for the widow and children of Ward Roper, canceling the judgment foreclosing the vendor’s lien and canceling the sheriff’s sale, and enjoining plaintiff in error from prosecuting his suit in Hill county. On appeal, the judgment of the district court was affirmed by the San Antonio Court of Civil Appeals, 230 S. W. 514. A writ of error was granted Sam Levy.

There was evidence to warrant findings, which should be presumed in support of the trial court’s judgment, that plaintiff in error bought the 320 acres of land for an.inadequate price; that the widow and children of Ward Roper did not appear, and were not cited, in the foreclosure suit; that no guardian ad litem was appointed for the minors; that the widow and children of Ward Roper had no knowledge of Walden’s suit until immediately before instituting, proceedings to set aside the decree of foreclosure and the sheriff’s sale; and that they were not negligent in failing to learn of same.

There was evidence supporting the jury’s finding that the sheriff’s sale was made without notice to Ward Roper’s widow and children. It was conclusively shown that R. L. Hedrick was personally served with citation to answer Walden’s suit, and that he made default.

In support of the affirmance of the judgment for defendant in error Hedrick, it is urged: First, that the judgment foreclosing the vendor’s lien on the 320 acres of land was void, because of the court’s want of jurisdiction over the persons of the widow and children of Ward Roper; and, second, that the requirement of only one final judgment rendered the foreclosure and sale void as against defendant in error Hedrick, as well as against Roper’s widow and children.

The Supreme Court has uniformly held that a judgment rendered against a defendant, without citation against him or appearance by or for him, is a nullity. After deciding that service by the sheriff of one county of a citation, directed to the sheriff of another county, was no service, the court, through Chief Justice Wheeler, said: “The court therefore had not jurisdiction of the person of the defendant, and the judgment was consequently void.” Witt v. Kaufman, 25 Tex. Supp. 386. The court again declared, in Judge Stayton’s opinion in Glass v. Smith, 66 Tex. 550, 2 S.

W. 196: “Jurisdiction over the person of a defendant is acquired by his voluntary appearance, or by the service upon him of such process as the law provides.

In the case before us, Glass had not voluntarily come before the court as a litigant, and thus conferred jurisdiction on the court over his person; nor had he been brought before the court by any process known to the law * * * and the judgment rendered against him, from which he now seeks relief, was and is a nullity.” Judgments rendered against parties, who had not appeared and who had not 'been lawfully cited, were determined to be void in the following cases: Edrington v. Allsbrooks, 21 Tex. 189; Parker v. Spencer, 61 Tex. 161; Dunlap v. Southerlin, 63 Tex. 42; Fowler v. Simpson, 79 Tex. 617, 15 S.

W. 682, 23 Am. St. Rep. 370; Hardy v. Beaty, 84 Tex. 569, 19 S. W. 778, 31 Am. St. Rep. 80; Roller v. Reid, 87 Tex. 76, 26 S. W. 1060; Hopkins v. Cain, 105 Tex. 597, 143 S. W. 1145. The Supreme Court of the United States likewise treats as void judgments against defendants, neither cited nor waiving citation nor appearing. Windsor v. McVeigh, 93 U. S. 283, 23 L. Ed. 914; Pennoyer v. Neff, 95 U. S. 733, 24 L. Ed. 565; Hovey v. Elliott, 167 U. S. 445, 17 Sup. Ct. 841, 42 L. Ed. 215; Cooper v. Newell, 173 U. S. 571, 19 Sup. Ct. 506, 43 L. Ed. 808; McDonald v. Mabee, 243 U. S. 90, 37 Sup. Ct. 343, 61 L. Ed. 608, L.

R. A. 1917F, 458. The necessity for maintaining rights acquired on the faith of apparently 'valid judgments of domestic courts of general jurisdiction has led to the rule, now firmly established in Texas, that whenever such judgments are collaterally assailed their jurisdictional recitals are not open to attach but import absolute verity. Nowhere perhaps is the rule better stated than in the opinion of Judge Denman in Crawford v. McDonald, 88 Tex. 632, 33 S.

W. 328, in these words: “Where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any service whatever upon him.

Logically the judgment is in fact void, but on grounds of public policy the courts, in order to protect property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore for all practical purposes, in such collateral attack the judgment is held valid.” The statement by Judge Denman harmonizes with previous and subsequent decisions of this court. Murchison v. White, 54 Tex. 82; Heck v. Martin, 75 Tex. 473, 13 S. W. 51, 16 Am. St. Rep. 915; Templeton v. Ferguson, 89 Tex. 57, 33 S.

W. 329; Stockyards National Bank v. Presnall, 109 Tex. 34, 35, 194 S. W. 384. The principles applied in those cases are followed in most of the American states. 15 R. C. L. § 373. Hence the judgments in favor of Walden,foreclosing the vendor’s lien, could not have been successfully attacked even by the widow and children of Ward Roper, for the want of jurisdiction over their persons, save in a direct action. They could not have maintained a direct action to vacate the portion-of the decree which in no wise affected their own rights or interests.

They had no right to, or interest in, the 172 acres of land conveyed by Ward Roper to defendant in error Hedrick. It follows that so much of the decree of foreclosure as alone affected Hedrick and his title to the 172 acres could not have been rightly set aside at the instance of Mrs. Roper and her children. Can defendant in error Hedrick maintain his direct attack on the judgment and sale because of the mere failure of the court decreeing the foreclosure to acquire jurisdiction over the persons of the widow and children of Ward Roper?

Such failure in no wise relieved him from defending Walden’s suit, in so far as it sought a foreclosure on-his 172 acres of land. It is true that one defense, complete or partial, which was open to him, was to require that the proceeds of. the sale of the portion of the 320 acres not conveyed to him be first applied to discharge the vendor’s lien. But failure to cite Ward-Roper’s widow and children to answer Walden’s petition did not prevent him from asserting such defense. Since it is manifest that a judgment foreclosing the vendor’s lien on the 320 acres, in a suit against J. H.

Roper and Hedrjck alone, would not be subject to collateral,attack, nor be open to vacation by Hedrick in a subsequent equitable proceeding, merely because of the nonjoinder of the representatives of the estate of his vendor^ we cannot ascribe that effect to the omission to cite the representatives of his vendor’s estate. Greater effect ought not to be given,under the pleadings and evidence here presented, to a failure to cite than to a failure to both sue and cite.

Determining a cause wherein defendants, claimed separate tracts of land, the court held, in the careful opinion of Associate Justice Gaines, in Boone v. Hulsey, 71 Tex. 185, 9 S. W. 531, that where a plaintiff had recovered a judgment by default as to defendants who were not duly cited, and had sustained an adverse judgment in favor of other defendants, who filed answers, the judgment for those answering should not be affected by the vacation of the judgment as to those not cited.

The rule must be applied regardless of who prevails in the suit as between the plaintiff and the defendants, subject to the jurisdiction of the court. See, also, M., K. & T. Ry. Co. v. Enos, 92 Tex. 580, 50 S. W. 928. The statute of limitations of 4 years, which was properly invoked by plaintiff in error, interposes an insuperable obstacle to Hedrick’s maintenance of any direct action to vacate the decree of foreclosure or the sheriff’s sale. He had personal knowledge of-Walden’s suit before the decree of foreclosure was rendered, and he avers no want of knowledge of the sheriff’s sale on the day it-was made.

He makes no ¿ttempt to excuse his delay in filing his cross-action, further than to deny that he had been dispossessed of the 172 acres of land. He cannot enforce the rights asserted by his cross-action without affirmative equitable relief. His cross-action was barred when it was filed more than 4 years after the sale to plaintiff in error, and the trial court should have granted plaintiff in error’s request to have the jury instructed to return a verdict against Hedrick. McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 321; McLean v. Stith, 50 Tex. Civ. App. 323, 112 S. W. 361; Groesbeck v.

Crow, 91 Tex. 74, 40 S. W. 1028. The action of Mrs. Roper and children was brought within 4 years after they either knew or could have known, by the use of ordinary diligence, of the judgment foreclosing the vendor’s lien or of the sheriff’s sale.. The action was therefore not barred by limitation, even though said parties had all been adults when the judgment was rendered. Kimmell v. Edwards (Tex. Civ. App.) 194 S. W. 169 ; Foust v. Warren (Tex. Civ. App.) 72 S. W. 406, 407; Rose v. Darby, 33 Tex. Civ. App. 341, 76 S. W. 799.

The want of citation to, or appearance by, the widow and children of Ward Roper in the foreclosure suit, and the want of notice to them of the sheriff’s sale, together with the inadequate price obtained at such sale, warranted the vacation of the sale to plaintiff in error, and the injunction against him, as to the 320 acres of land without the boundaries of the 172-acre tract. The 172 acres exceed in value the amount of plaintiff in error’s bid at the sheriff’s sale, at which he admits he was seeking to acquire land at a bargain price.

Under the circumstances we do not think plaintiff in error is entitled, in equity to any refund from the widow and children of Ward Roper. Brown v. Lane, 19 Tex. 208.

It is ordered that the judgments of the district court and of the Court of Civil Appeals be affirmed, in so far as they annul the sheriff’s sale of that portion of the 320 acres without the boundaries of the tract of 172 acres, and in so far as plaintiff in error ig enjoined from prosecuting any action against-the widow and children of Ward Roper for the recovery of said portion of the 320 acres, and in so far as the title of the widow and children of Ward Roper is quieted to that portion of the 320 acres.

In all other respects, the judgments of the district court and of the Court of Civil Appeals -are reversed, and judgment is rendered against defendant in error R. L. Hedrick on his cross-action. Plaintiff in error will recover of defendant in error Hedrick all costs in the trial court on his cross-action, and the costs of the Court' of Civil Appeals and of the Supreme Court.

Defendants in error, the widow and children of Ward Roper, will recover of plaintiffs in error all their costs in the trial court, the Court of Civil Appeals, and the Supreme Court. <gu»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes