Caplen v. Compton

PLEASANTS, Associate Justice. This appeal presents for our decision the validity or invalidity of a judgment of escheat, pronounced by the District Court of Harris County, on the 11th of January, 1890, in proceedings instituted by the county attorney of Harris County for the purpose of escheating land as property of the estate of one Philo C. Merwin. The appellee Compton filed his suit against appellants on the 20th of August, 1892, setting out the proceedings in escheat, and charging that they were null and void, and averring that the said Merwin was still living, and that he had since the rendition of said judgment purchased the land from him; and that the appellant Caplen had procured the said county attorney to institute and prosecute to final judgment said proceedings in escheat for the fraudulent purpose of acquiring title to the land, and that at the sale made by the sheriff under said judgment he purchased said land through one Nicholson, and afterwards received a deed from Nicholson for the land; and he prayed that said Caplen ánd said Nicholson be cited to answer his petition, and that the said judgment of escheat be declared null and void, and that he have his writ of possession, and that he be quieted in his title. The appellee W. P. Hamblen intervened in the suit, and asserted title to one-half interest in said land, by purchase from the plaintiff, and adopted the pleadings of the plaintiff. The appellant Caplen denied the allegations of fraud, and he also excepted to the petition on the ground that it sought by collateral attack to avoid the judgment of escheat. Upon trial of the cause, judgment was rendered for appellees for the land, and the defendants appealed. It is insisted by the appellants, that the judgment of escheat is not void, and that therefore the appellees can not attack it collaterally. If the judgment be not void, the proposition that it can not be attacked collaterally is correct, and the judgment rendered by the court a quo for appellees must be reversed. It is often difficult to draw the line of demarkation between what is void and what is voidable only. If a judgment is voidable simply, it is conclusive against all whose rights it may affect until it is either reversed by the appeal, or vacated and held for naught by a decree of court of competent jurisdiction, rendered on proceedings instituted directly for that purpose. But when a judgment is void it is a nullity, and may be so treated by any court in any suit or other judicial proceeding. In numerous decisions of the highest *414 and most distinguished courts it is held, that the judgment of a court of general jurisdiction can not be held to be void unless the record shows that the court was without power to render the judgment. This may be said to be the rule; but the courts of this State recognize at least one exception to this rule. A judgment ordering administration upon the estate of a living man is a nullity, although the proceedings in the court are regular, and there is nothing upon the record showing or suggesting that the owner of the property upon which administration is granted is living. The Legislature has provided a method for escheating property, and that method must not be departed from in any essential particular; such departure will render null and void the judgment. Among other things prescribed by the statute is, that a citation shall be issued for all persons interested in the estate to appear and answer the petition praying for the escheat. In this case the record discloses that the citation issued was for “ the unknown heirs of Philo C. Merwin.” This it is urged by counsel for appellants in their learned brief, was a substantial compliance with the statute. But was it? We are of the opinion that it was not. There could have been no escheat of the property had Merwin been dead, if he left surviving either heirs or devisees. His “ unknown heirs ” were not, therefore, the only persons who might be interested in the estate; and all such persons, by the method provided by the Legislature, must first be cited to appear and answer before the court could acquire jurisdiction of the estate. Hanna v. The State, 84 Texas, 665. This court is unanimously agreed that the omission in the citation is a fatal defect, and that by reason thereof the judgment of escheat pronounced by the District Court of Harris County on the 11th of January, 1890, vesting the title to the land in question in the State, and ordering it to be sold by the sheriff of said county, is null and void; and that there was no error in permitting the plaintiff and intervenor to offer evidence showing that Philo C. Merwin was living when the judgment was rendered, and that they had purchased from him since that date. Speaking for myself, there can be no escheat so long as the owner of the land be alive, whether he be known to be living or not; and no length of absence from the ■ country will empower any court, by its decree, to divest the title of a citizen of this State to land and vest it in the State. Escheat has a well defined meaning. When one seized in fee of land dies without heir or devisee, the title reverts to and vests in the State. The decree declaring the escheat does not vest it. Upon the death of the owner without heir or devisee, the law vests the title in the State; the fee is never in abeyance. The effect of the decree of the court is to judicially determine and declare that the property has escheated, and to direct the disposition of it in accordance with the provisions of the statute. The whole proceedings in escheat, from alpha to omega, assume, just as the Probate Court does in granting letters of administration or letters *415 testamentary, that the last person seized of the fee,is dead; and in each case, if the person whose property is the subject of judicial inquiry be not in fact dead, the judgment of the court, which rests upon the assumption of his death, is a nullity. A citizen may, by his negligence, permit another, by operation of the statute of limitations or by tax sale, to acquire title to his land. But I know of no authority in the Legislature or the courts of this State to deprive one of his title to property because of his absence from his home or from' his country. The Constitution, article 13, section 1, does not authorize the Legislature to create an es-cheat; it simply directs it to provide a method for ascertaining whether or not there has been in any case an escheat. No man can be deprived of his property except by due course of law. Bill of Rights, sec. 19. Delivered December 7, 1893. Application for writ of error was refused February 12, 1894. That Philo C. Merwinwas alive when the decree of January 11, 1890, declared his land to have escheated, is beyond cavil, and that both plaintiff and defendant claim title from him, we think is established by the evidence. The judgment of the lower court, decreeing the title to the land in controversy to be in the plaintiff and the intervenor, is in all things affirmed. Affirmed.