Peters v. Allen

COBBS, J. This was a suit in trespass to try title filed in the Seventy-Third district court of Bexar county, Tex., on November 19, 1926, by Edwin D. Allen, a resident of Bexar county, Tex., against Corinne Peters, a minor, a resident of Kerr county, Tex., for the recovery of two 'tracts of land situated in Nue-ces county, Tex., one tract containing 100 acres of land, and the other tract containing 1,642.56 acres, both of said tracts being out of a larger tract of 5,665.7 acres of land out of the Puenticitas grant, and both of said tracts of land being more particularly described in plaintiff’s original petition filed in said suit. It was alleged and shown upon the trial: *931 That both the plaintiff and defendant claim said property through and under Lois S. El-liff, deceased, who is the common source of title. That the said Lois S. Elliff was the sole devisee under the will of her deceased husband, J. S. Elliff, who died July S, 1900. That she was duly appointed as the independent executrix of the estate of J. S. Elliff, deceased, on September 18, 1900, and that the said Lois S. Elliff, as such independent executrix, filed an inventory and appraisement on September 19, 1900 showing real estate belonging to said estate situated in Nueces county, Tex., aggregating 83,563% acres, which included the land in question in this suit. That by deed dated March 19, 1901, the said Lois S. Elliff, both in her individual capacity and as independent executrix of the estate of J. S. Elliff, deceased, conveyed to her daughter, Georgia A. Elliff, 5,665.7 acres of land out of the Puenticitas grant, in Nueces county, Tex., which included the land sued for by the plaintiff. The habendum clause of said deed contained the following language: “To have and to hold all and singular the above-granted premises, together with appurtenances thereunto belonging unto the said Georgia A. Elliff, for and during the natural life of her, the said Georgia A. Elliff, the same to revert upon her death to the children of her, the said Georgia A. Elliff, should she have any children ; (but in the event that she, the said Georgia A. Elliff, should have no children living at the time of her death, then the title to the above-described property to revert to me, the said Lois S. Elliff, and my heirs, executors, administrators, or assigns).” That on April 4, 1908, the. said Georgia A. Elliff, who was then married to S. Ross Peters, brought suit joined by her said husband in the district court of Nueces county, Tex., in cause entitled Georgia A. Peters and S. Ross Peters v. Lois S. Elliff et al., and numbered No. 4342 on the docket of said court, making defendants in said suit the said Lois S. Elliff, in her individual capacity alone, and Leota Peters* daughter and the only child then living of said Georgia A. Elliff (Peters), and by which suit the said Georgia A. El-liff sought to have the aforesaid deed reformed and construed as vesting a fee-simple title in said Georgia A. Elliff, and, in the alternative, to have said deed corrected as to eliminate and omit the clause and provisions thereof creating a remainder over to the children of said Georgia A. Elliff. That in the citations served on the defendants in the aforesaid suit it was stated as follows: “The nature of the plaintiff’s demand is as follows, to wit: Suit to construe a deed dated the 24th day of December, 1900, from Lois S. Elliff and Lois S. Elliff, independent executrix of the estate of J. S. Elliff, deceased, to Georgia A. Elliff (now Georgia A. Peters), recorded in volume 7, on pages 345, 346, Records of Deeds of Nueces County, Tex., and to correct a mistake in said deed, all as shown in plaintiff’s original petition filed herein.” That the said Leota Peters was a minor at the time said suit was brought and judgment rendered therein and was represented in said suit by a guardian ad litem appointed by said court. That on the 21st day of July, 1909, a judgment was rendered in said cause, in and by which the habendum clause of said deed was changed to read as follows: “To have and to hold all and singular the above-granted premises, together with the appurtenances thereunto belonging, unto the said Georgia A. Elliff for and during the natural life of her, the said Georgia A. Elliff, then the title to the above-described property to revert to me, the said Lois S. Elliff, and my heirs, executors, administrators, or assigns." That on the 2d day of July, 1909, the said Lois S. Elliff, both in her individual capacity and as independent executrix of the estate of J. S. Elliff, deceased, executed a new conveyance in and by which she sought to grant unto the said Georgia A. Elliff (Peters) the entire title and estate to and in said land. That by general warranty deed dated May 25, 1922, the said Georgia Elliff Peters, then a widow, conveyed a portion of the property in question to one J. C. Ingram, who on December 23,1924, conveyed the same to Edwin D. Allen, the plaintiff in this suit. That by general warranty deed dated October 1, 1912, the said Georgia A. Elliff Peters and husband, S. Ross Peters, conveyed another portion of the property in question to one J. E. Hughson, and by mesne conveyances said property also came into the possession of the said Edwin D. Allen, plaintiff in this suit. Oorinne Peters was personally served with citation in this ca?e in Kerr county, the county of her residence. By an order of the court duly made and entered H. S. Piland, an attorney of the San Antonio bar, was appointed guardian ad litem for the purpose of defending this suit for said minor defendant. The cause proceeded to trial on December 14, 1926, and during the progress of the trial defendant, Oorinne Peters, filed a sworn plea of privilege to be sued in Nueces county, Tex., where all of the real estate in question was situated. Plaintiff filed a controverting answer, setting up as a defense to defendant’s plea of privilege, that the defendant, before filing said plea of privilege, had filed answers to the merits of the suit and had proceeded with the trial of the case cm its merits and had thereby submitted to and invoked the jurisdiction of the court and had waived her privilege to be sued in Nueces county. The court overruled the defendant’s plea of privilege, to which action of the court the defendant duly excepted and filed her bill of exceptions thereto. The court then, on the 16th day of December, 1926, proceeded to render judgment in this cause in favor of the plaintiff, Edwin D. Allen, for the title and possession of said property and divesting all right,' title, and interest in said property out of the *932 said Corinne Peters and vesting the same in said Edwin D. Allen. Defendant in error accepts as true the statement of the' case as made by plaintiff in error, with the qualification that defendants were not' personally present in the Nueces court at the trial of said cause, but had been duly served by citation, and any implication that the judgment was rendered on the original petition is denied. As the petition contains an accepted statement of the facts of the case undisputed, it has been here copied substantially as the basis of our opinion. On the question of venue, in view of the fact that the minor appeared through and by her guardian ad litem, who answered to the suit before filing a plea of privilege, we do not think a proper showing has been made, requiring us to adopt a different rule of practice in favor of minors, acting by and through their guardian ad litem, than that by any other litigant. The error, if any, in this case on that point seems altogether harmless. We do not think there is anything in the cases cited (Lopez et al. v. Calzado [Tex. Civ. App.] 281 S. W. 324; Madero et al. v. Calzado [Tex. Civ. App.] 281 S. W. 328; Knight v. Waggoner [Tex. Civ. App.] 214 S. W. 690; article 1995, § 14, Revised Civil Statutes of Texas; 31 C. J. 1143 [§ 304] ; 14 R. C. L. 287-292) that requires us to sustain the plea. While article 1995, § 14, R. S., in fixing venue says such suits “must be brought in the county” where the land is situated, it is not an exclusive jurisdictional question, but a privilege to a litigant that may be waived. Of course, the duty of a guardian ad litem appointed by the court is not perfunctory, nor to be lightly regarded in the ward’s interest. _ Certainly, her interest has been wonderfully well protected here as will be seen from the able brief which the guardian ad litem has here urged and presented. We do not feel that we should make a rule of procedure in favor of minors acting through their guardian ad litem, other than that enjoyed by other litigants. It must be remembered that the doctrine that minors are wards of the court, whose interests the courts shall protect, is as ancient as the common law, “where the memory of man runneth not to the contrary.” In other words, if the trial court sees that the ward’s interest is not properly protected, it is the court’s duty to promptly interpose in the ward’s behalf to remedy the error, and, if necessary, remove the guardian ad litem and appoint another and grant a new trial. The position is so delicate that no attorney should accept it unless he shall give to it, in the interest of the minor, the very best of his skill and ability, acting as though it were under his oath. In this case we can see no harm that has followed the action of the guardian ad litem or in the failure of the court to consider the plea of privilege after the guardian ad litem had so well and ably answered to' the merits of the ease. This assignment is overruled. The will of J. S. Elliff, deceased, vested the fee-simple title to the land in Lois Elliff, who, as executrix under the will, was not a necessary party for the reformation of the deed to said property to Georgia A. Elliff, the remote grantor, nor necessary party to the Nueces county suit, either to construe or reform said deed. The deed from Lois S. Elliff individually, or as executrix, reserved no estate nor interest in the land conveyed in the estate of J. S. Elliff, deceased, the reverter being to Lois S. Elliff, individually, her heirs, executors, and administrators or assigns. It was a suit in Nueces county to vest the fee-simple title in Georgia A. Elliff, or to reform the same so as to eliminate the remainder devised to the children of Georgia A. Elliff. As the question of nonjoinder of parties to a suit must be specially pleaded in due order of pleading in limine, and it not appearing that the nonjoinder of Lois S. Elliff, in her capacity as independent executrix, was pleaded in the Nueces county suit or presented, it cannot be considered here for the first time. The citation served on the defendants in the Nueces suit having stated the nature of the demand as a suit to construe and correct a mistake in a deed, correctly stating the names of the grantor and grantee in the deed and all other necessary words sufficient for identification, it is immaterial that it was incorrectly described in the citation as bearing date December 24,1900, instead of March 19, 1900. The deed was fully described, giving page number of its record in the deed records of Nueces county. Pipkin v. Kaufman, 62 Tex. 545; Williams v. Manix (Tex. Civ. App.) 105 S. W. 520; Hinzie v. Kempner, 82 Tex. 620, 18 S. W. 661; Sperry v. Sperry (Tex. Civ. App.) 103 S. W. 421; Loungeway v. Hale, 73 Tex. 497, 11 S. W. 537. Independent of the error claimed in the citation, Leota Peters was represented by a guardian duly appointed by the court, hence the judgment rendered in said suit against Leota Peters was not void. Alston v. Emmerson, 83 Tex. 231, 18 S. W. 566, 29 Am. St. Rep. 639; Russell v. Railway, 68 Tex. 646, 5 S. W. 686; Sprague v. Haines, 68 Tex. 215, 4 S. W. 371; Kremer v. Haynie, 67 Tex. 451, 3 S. W. 676; Wheeler v. Ahrenbeak, 54 Tex. 536. As to whether Georgia A. Elliff had such interest in the land in Nueces county sufficient to support the judgment is dependent upon evidence and not upon any pleading, and this court does not have before it the evidence introduced in the Nueces county suit, and therefore cannot go behind the judgment to determine whether or not the pleadings or evidence were sufficient to support the judgment. The Nueces court judgment from any *933 thing shown here cannot be attached collator-1 ally. The record in this case shows when the Nueces judgment was rendered Mrs. Peters had secured from her mother, Mrs. Elliff, an absolute deed to the property conveying whatever reversionary interest Mrs. Elliff had therein. The effect of that judgment eliminated the provision in the first deed creating a remainder in favor of the children of Mrs. Peters, who survived her, so as to place whole title in Mrs. Peters. This deed was executed July 2, 1909, and the judgment was rendered thereafter on July 21, 1909. Undoubtedly, without the absolute deed, Mrs. Peters had an interest in removing the remainder interest of her children, thus to leave the property to revert to her mother, her heirs, and assigns on the death of the life tenant, in the probable event that Mrs. Elliff, the mother, should predecease Mrs. Peters; she, as the heir, would inherit part of the re-versionary interest in the property. At any rate, this court will not loot behind the judgment of the Nueces court to pass upon the sufficiency of the pleading and the evidence upon which the judgment was rendered. Oorinne Peters was, as shown, born after the rendition of the judgment, but her sister, Leota Peters, her coremainderman under the reformed deed, was a party to the suit. She had the same interest in defending against said suit that Oorinne Peters would have had had she been in esse and a party thereto, and so, she, by the doctrine of virtual representation, was bound by that judgment. For a discussion of the rule of virtual representation, see 4 Corpus Juris, p. 1000, § 1421; Weberpals v. Jenny, 300 Ill. 145, 133 N. E. 62; Baylor v. Dejarnette, 13 Grat. (Va.) 152; Miller v. Foster, 76 Tex. 479, 13 S. W. 529, approved in Miller v. Texas & Pacific Ry. Co., 132 U. S. 662, 10 S. Ct. 206, 33 L. Ed. 487; Kendall v. Crawford, 77 S. W. 364, 25 Ky. Law Rep. 1224. On March 10, 1901, Lois S. Elliff, individually and as the executrix of the estate of J. S. Elliff, deceased, executed a deed reciting that: “For and in consideration of the sum of $10 to me in hand paid by Georgia A. Elliff, of the county of Nueces, aforesaid, the receipt of which is hereby acknowledged to my entire satisfaction, and for the further consideration of the natural love and affection that I bear towards her, the -said Georgia A. Elliff, my daughter, have granted, bargained, transferred, assigned, and conveyed, and by these presents do grant, bargain, transfer, assign, and convey unto the said Georgia A. Elliff, the following -described tract, piece, or parcel of land lying and being situated in the county of Nueces and state of Texas,” —-describing .and conveying 5,665.7 acres of land out of the Puenticitas grant, made by the government of Spain to Andres Hernandez de la Fuente, and including the land involved in this suit. The habendum clause of said deed reads as follows: “To have and to hold all and singulhr the above-granted premises, together with the appurtenances thereunto belonging, unto the said Georgia A. Elliff for and during the natural life of her, the said Georgia A. Elliff, the same to revert upon her death to the children of her, the said Georgia A. Elliff, should she have any children; (but in the event that she, the said Georgia A. Elliff, should have no children living at the time of her death then the title to the above-described property to revert to me, the said Lois S. Elliff, and my heirs, executors, administrators, or assigns).” On April 4, 1908, the said Georgia A. Elliff (Peters), joined by her husband, S. Boss Peters, brought suit in the district court of Nue-ces county against Lois S. Elliff and Leota Peters, a minor, the said Lois S. Elliff 'being the mother, and the said Leota Peters being the daughter, of said Georgia A. Elliff (Peters), reciting in effect that said deed on its face vested the fee-simple title in the said Georgia A. Elliff, or, in the alternative, that it was the understanding and intention of the grantor in said deed to convey said land to the said Georgia A. Elliff during her natural lifetime and'at her death to revert to the said grantor, and praying for relief either so construing said deed or reforming the same according to the intention of the grantor, as aforesaid. Both the defendants Lois S. Elliff and Le-ota Peters, a minor, were personally served with citation in said suit. A guardian ad litem was appointed to represent the said minor defendant, filed an answer for her, and represented her at the trial of said suit. On July 21, 1909, the court rendered judgment in said suit, reforming the habendum clause in said deed so as to read as follows: “To have and to hold all and singular the above-granted premises, together with the appurtenances thereunto belonging, unto the said Georgia A. Elliff for and during the natural life of her, the said Georgia A. Elliff, then the title to the above-described property to revert to me, the said Lois S. Elliff, and my heirs, executors, administrators, or assigns.” Georgia A. Elliff Peters testified in this present suit, by deposition, that she was the daughter of 'J. S. Elliff and Lois S. Elliff, both deceased; that she was the plaintiff in the said Nueces county suit; that Leota Peters, one of the defendants in said suit, is her daughter; that she never had any child or children other than Leota Peters, living at the time the Nueces county suit was brought, or at the time the judgment was rendered therein; that Oorinne Peters, the plaintiff in error herein, is her daughter; that she was born February 10, 1912; that no other child or children have been born to her except Oorinne Peters since the judgment *934 was rendered in said Nueces county suit on July 21, 1909. It is almost a universal rule of necessity and equity where one or more members of a class to whom there is a devise are made parties to a suit affecting their common estate or interest in realty, a judgment therein will ordinarily bind other members of that class. Especially so as to after-born members of the same class, who, in the very nature of things, cannot be sued. The exception to this rule was claimed to be made in North Carolina cases where the devise over is to such children as may survive another person living on the happening of a certain event, such children before the death of such person or the happening of such event are not members of a class because it cannot be known whether any given child will be living at that time, and the member of the class cannot be ascertained until the death of the person or the happening of the event that determines the question. This contention is urged by plaintiff in error. But this rule seems now to be changed by statute for North Carolina; at any rate, it will not be followed here. Out of the power of equity, like many rules of absolute right for the aid of mankind in the overthrow of needless technical rules that tend to defeat the wholesome administration of the affairs of men rather than to aid them, has arisen the doctrine of convenience and necessity, called “virtual representation” with the qualification to that rule, that judgments and decrees are binding only upon the parties to the controversy. Kent v. Church of St. Michael, 136 N. Y. 10, 32 N. E. 704, 18 L. R. A. 331, 32 Am. St. Rep. 693; Mathews v. Lightner, 85 Minn. 333, 88 N. W. 992, 89 Am. St. Rep. 558. In Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247, the court illustrates the evil of the doctrine here contended for: “But the question is, whether the court has the power, by its decrees, to alienate the contingent titles of unborn remaindermen, who, from the nature of things, cannot be made parties, or be represented in the proceedings before the court; or to alienate the contingent titles of persons, who, though in esse, are resident in other states, or in foreign lands, whose residences, and even whose names are unknown. To say that the court could not, under circumstances like these, convey away the fee, would be to assert a doctrine that would render conditional limitations and contingent remainders an intolerable evil to a growing and prosperous community. Thus to shackle festates without the power of relief, unless every person having a contingent and possible interest could be brought before the court, would be to sacrifice the rights and interests of the present generation to those of posterity, and of citizens to aliens. If the whole property of the country were thus situated, it is obvious that all improvement and advance would be completely checked.” Equity abhors technical rules and restrictions that' tend rather to prohibit the free and more simple rules of conveyancing, that aid the transfer of property, than that which tends to shackle and restrict commerce. There is the same necessity as far as possible to encourage trade and adjudicate property rights of the unborn, who are not in esse, but who may come into being and still be cut off as remaindermen by early demise, as those whose birth invests them with the remainder. We think the language in the remainder clause in the deed and the condition, construed together, means that the remainder estate is to pass to all the children who may be born to Georgia A. Elliff. But if there be no children living at the time of her death, the title reverts to the grantor, her heirs, and assigns. Therefore the remainder is not a contingent remainder, because all the children of Georgia A.' Elliff became at her death vested with a defeasible fee, subject to be defeated by the same contingency. Forsythe v. Lansing’s Ex’rs, 109 Ky. 518, 59 S. W. 854; Walker v. Alverson, 87 S. C. 55, 68 S. E. 966, 30 L. R. A. (N. S.) 115. It is said by Chief Justice Phillips, in Caples v. Ward, 107 Tex. 341, 179 S. W. 856: “An estate limited upon a contingency, to which the effect of a condition subsequent only is given, vests at once, subject to * * * the happening of the contingency.” And quoting from 4 Kent, 204: “A limitation, after a power of appointment, as to the use of A. for life, remainder to such use as A. shall appoint, and in default of appointment, remainder to B., is a vested remainder [to B.], though liable to be divested by the execution of the power.” For the reasons given, we overrule all the assignments presented and urged by plaintiff in error, and affirm the judgment of the trial court.