Hollingsworth v. Wm. Cameron & Co.

LEVY, J. (after stating the facts as above). The first and third assignments are here considered together as presenting the controlling question in the appeal. The contention made by the assignments is that the evidence established title in appellant to the land sued for and wholly failed to establish any title residing in appellee, and that the court erred in failing to so conclude as a matter of law. The deed executed by Jones, the common source, on January 22, 1866, was properly construed by the court as designed and intended to convey to B. P. Hollingsworth & Bro. the title to the land therein described. And it is admitted that B. P. Hollingsworth & Bro. was at the time a firm composed of B. P. Hollingsworth and S. P. Hollingsworth; and, there being no proof that the partnership was not an equal partnership, the court correctly held that S. P. Hollingsworth was entitled to a one-half interest in the land. And the appellant, Mrs. Hollingsworth, by the will of S. P. Hollingsworth, her husband, would acquire his interest in the land. But such title as Mrs. Hollingsworth may once have had in the land in suit through the will was, it appears, divested out of her in 1900 by the judgment in favor of the state foreclosing a tax lien and the sale thereunder by the sheriff to appellee. It appears there was never any evidence on the records of Trinity county of appellant’s claim to the land. It could not therefore properly be said that the court erred as a matter of law in not decreeing title in appellant, in view of the said judgment in favor of the state and the sale thereunder. But appellant insists that the judgment foreclosing the tax lien is void because of defective citation or notice. This contention is purely a collateral attack on such judgment, and the validity of the judgment cannot in this suit of trespass to try title be inquired into or brought in question in a collateral attack, as here. Jameson v. O’Neall, 145 S. W. 680; Kenson v. Gage, 34 Tex. Civ. App. 547, 79 S. W. 605. The authorities appellant cites are where the judgment is silent as to service upon the unknown owner. The judgment here recites “that the law in all things has been complied with and that the defendants have been regularly served with notice of plaintiff’s suit.” As the judgment recites due process, it must be held, as against a purely collateral attack, as importing absolute verity as to the fact recited. Hence it does not appear that the court erred, and the assignments are overruled. This requires that the judgment be affirmed, as the remaining assignments present merely immaterial matters. However, we pass on the remaining assignments. The second assignment complains' of the want of any evidence to show that Mrs. Annie Hollingsworth, joined by her second husband, Searcy, conveyed a one-half interest in the land to appellee, as appears in the court’s finding. The contention of appellant should be sustained; but neither the trial court nor this court has based any judgment upon any such finding of fact. The fourth assignment complains of the refusal of the court to make the precise finding therein requested. The finding requested was in effect a mere conclusion, and there is no injury resulting to appellant. The fifth and sixth assignments complain of the refusal of the court to embody in his findings as findings the matters of the written agreement of counsel wherein it was agreed that the citation and service in the cause of the state against unknown owners could be offered in evidence, and that it was the very citation that the judgment was rendered upon. The agreement of the parties was not vitiated by the mere failure of the court to embody it in his findings and could be here considered nevertheless as an admitted fact; and consequently no harm was done appellant. Besides, the agreed fact could not in this ease, as before stated, on a collateral attack affect the validity of the judgment in the case of the state against the unknown owners, or its effect. The judgment is affirmed.