Freeman v. Alderson
This was an action of trespass to try the title to certain land in Texas. It is the form in use to recover possession of real property in that state.
The plaintiffs claimed the land under a deed to their grantor, executed by the sheriff of McLennan county, in that state, upon a sale under an execution issued on a judgment in a state court for costs, rendered against one Henry Alderson, then owner of the property, but now deceased. The defendants asserted title to the land as heirs of Alderson, contending that the judgment under which the alleged sale was made, was void, because it was rendered against him without personal service of citation, or his appearance in the action.
The material facts of the case, as disclosed by the record, are, briefly, these: On the sixteenth of July, 1855, a tract of land comprising one-third of a league was patented by Texas to Alderson, who had been a soldier in its army. One undivided half of this tract was claimed by D. C. Freeman and G. R. Freeman, and they brought an action against him for their interest. The pleadings in that action are not set forth in the transcript, but from the record of the judgment therein, which was produced, we are informed that the defendant was a non-resident of the state, and that the citation to him was made by publication. There was no personal service upon him, nor did he appear in the action. The judgment, which was rendered on the first of October, 1858, was of a threefold character. It first adjudged that the plaintiffs recover one undivided half of the described tract. It then appointed commissioners to partition and divide the tract, and set apart, by metes and bounds, one-half thereof, according to quantity and quality, to the plaintiffs; and to make their report at the following term of the court. And, finally, it ordered that the plaintiffs have judgment against the defendant for all costs in the case, but stayed execution until the report of the commissioners should e returned and adopted, and a final decree entered.
At the following term the commissioners made a report showing that they had divided the tract into two equal parcels. The report was confirmed, and on the thirty-first of March, 1859, the court adjudged that the title to one of these parcels was divested from Alderson, and vested in the plaintiffs, the two Freemans, and that they recover all costs in that behalf against him, which were $61.45, and that execution issue therefor. Execution therefor was issued to the sheriff of McLennan county on the thirtieth of May directing him to make the amount out of 'the goods, chattels, lands, and tenements' of the defendant. It was levied on the other half of the divided tract, which remained the defendant's property. On the fifth of July, 1859, this half was sold by the sheriff to one James E. Head for $66.79, being the costs mentioned, and his fees for the levy and for his deed, which was executed to the purchaser. In September following, Head conveyed the premises to D. C. Freeman for the alleged consideration of $178. Two of the defendants disclaimed having any interest. The other defendants, including Freeman, so far as their title is disclosed by the transcript, claimed under the sheriff's deed.
On the trial, the defendants, to show title out of the plaintiffs, offered in evidence the judgment for the costs, the execution issued thereon, and the sheriff's deed; to the introduction of which the plaintiffs objected, on the ground that the judgment for costs was a judgment in personan, and not in rem, and was rendered against the defendant, who was a non-resident of the state, without his appearance in the action, or personal service of citation upon him, but upon a citation by publication only, and therefore constituted no basis of title in the purchaser under the execution. The court sustained the objection, and excluded the documents from the jury; and the defendants excepted to the ruling. No other evidence of title being produced by the defendants, a verdict was found for the plaintiffs, and judgment in their favor was entered thereon; to review which the case is brought to this court on a writ of error.
M. F. Morris, for plaintiffs in error.
E. H. Graham and L. W. Goodrich, for defendants in error.
Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows: