Holt v. Love

WILLSON, O. J. (after stating the facts as above). In his pleadings appellant set up the statute of limitations of five years as a bar to the right of appellee to maintain a suit to recover the land, and the statute of limitations of four years as a bar to her right to maintain a suit to set aside the judgment in the Oaradine suit in so far as it affected her title to the land or an interest in it. The sheriff’s deed to appellant as the purchaser at the sale of the land, made under the judgment referred to, was duly recorded September 21, 1897. Appellant took actual possession of the land on January 1, 1898, and thereafterwards until the date of the institution of this suit, to wit, January 21, 1907, remained in possession thereof, paying all taxes assessed against it during that time. Appellee did not marry during her minority. The jury found, and their finding is not attacked by any assignment in appellant’s brief, that appellee was born March 13, 1881. According to this finding appellee did not reach the age of 21 years until March 13, 1902. It appeared therefore that at the time she commenced her suit the statute had been in operation against her for a longer period than four years and for a shorter period than five years, and therefore that her right to maintain a suit to annul the judgment in the Oaradine suit was barred, and that her right to maintain a suit to recover the land was not barred by the statute. Appellant insists that as a prerequisite to a recovery by appellee of the land, or any part of it, it was necessary that the judgment referred to should first be set aside, and that, as it could not be so set aside because appellee’s right to that relief was barred by the statute, the court should not have rendered judgment in her favor for any of the land nor for any sum of money as rents she was entitled to. We think the contention must be sustained. [1] It did not affirmatively appear from the judgment or from any of the papers constituting the record of the Oaradine suit that the judgment was void. On the contrary, it appeared that the court had jurisdiction of the subject-matter of the suit, and, from a citation and the return 'thereon forming a part of the record of that cause, it appeared that the court had acquired jurisdiction of the person of appellee. It was therefore held, on the former appeal, and the ruling is adhered to, that the judgment at most was only voidable and should be treated as valid until set aside in a proceeding commenced and prosecuted for that purpose. It was also held on that appeal, and we are still of that opinion, that appellee’s suit, in one of its aspects, was that kind of a proceeding. As the judgment must be treated as valid until annulled, and as its effect so long as it is in force is, with the sale made under it, to show that appellant, and not appellee, is the owner of the interest she claims in the land, it follows that appellee must have established a right to have it vacated before she was entitled to recover the land. As the statute of limitations of four years had barred an action by. her for that purpose at the time she commenced her suit, it also follows that she was not entitled to recover the land, or to any relief, and therefore that the court erred in rendering judgment in her favor as he did. [2] In reply to appellant’s contention appellee insists that “a suit,” quoting from her brief, “to recover land is not affected by four years’ limitation, notwithstanding plaintiff may plead and prove facts which show a judgment as the basis of a sheriff’s deed in partition sale, it is not binding on plaintiff, but such suits are governed by the statutes regulating limitation for the recovery of land.” As supporting her contention; appellee cites the opinion of this court on the former appeal of this cause, reported in 131 S. W. 857; Hoffman v. Buchanan (Civ. App.) 123 S. W. 171; Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; and Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815. The question was not made on said former appeal, and therefore it was neither considered nor determined. Nor was the question, nor one like it, determined in either Hoffman v. Buchanan or Stafford v. Stafford. In Rutherford v. Carr the owner of a judgment was the purchaser at a sale of land levied on as the property of the judgment debtor by virtue of an execution issued on the judgment, and as such purchaser sued the vendee of the judgment debtor in trespass to try title. Said vendee in his answer to the suit pleaded his title, setting up the deed of the judgment debtor purporting to convey the land. In a supplemental petition the plaintiff alleged facts showing the deed so set up to be fraudulent and void as to him, be'cause made, within the defendant’s knowledge, for the purpose of hindering, delaying, and defrauding his (the judgment debtor’s) creditors, and especially plaintiff, *1021 who was one of his creditors. The court sustained an exception to the supplemental petition, on the ground that it appeared therefrom that the deed charged to be fraudulent “was made, delivered, and recorded more than four years before the institution of this suit, so that the right to set the deed aside for fraud was barred by the statute of limitation of four years.” The court held that the suit was not to cancel the deed, but to recover the land, and that the statute of limitation of four years did not apply to it. While that case as pleaded is different from the' one before us in other respects, it is radically so in that there it was not indispensable to the exercise by the plaintiff of his right to recover the land that he should first have the deed made by the judgment debtor annulled, while in this case it was indispensable to the exercise by appellee of her right to recover the land that she should first have the judgment annulled. The distinction pointed out is based, it seems,* on considerations of public policy, which do not require that a deed should be treated as valid until canceled by a suit brought for the purpose, but do require that a judgment not void for matter appearing on its face or in the papers constituting the record of the cause in which it was rendered shall be treated as valid until it is set aside in a proceeding directly attacking it. Crawford v. McDonald, 88 Tex. 626, 83 S. W. 325; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61 S. W. 541. It follows from what has been said that we are of the opinion the judgment should be reversed and that judgment should be rendered that appellee take nothing by her suit against appellant, and it will be so ordered.