This action was brought by appellee to recover lands which once belonged to John D. Alston, and the rights of the parties depend on the validity of a judgment through which the lands were partitioned among his heirs. The original decree directing partition was entered on April 29, 1878, by the District Court for Dallas County, and the report of commissioners was approved and final partition made on May 7, 1879.
Appellants took a part of the land in controversy, as heirs, in that partition, and the residue of that in controversy was set apart to another heir of John D. Alston, and the interests of these persons was acquired by appellee under sales made under executions against these distributees for costs of partition adjudged against them. These sales are admitted to have been regularly made, and it is further conceded, *Page 235 that appellee paid valuable consideration without knowledge of any vice in the judgment under which the executions issued; but it is claimed that the judgment was void because appellants, who were minors when the judgment was rendered, were not cited, although they were represented by a guardian ad litem appointed by the court.
The suit in which the judgment in question was entered was brought by the other heirs of John D. Alston, against appellants, on September 20, 1875, and citations to the defendants were issued on the day the suit was brought, commanding them to appear at the next October term of the court, but the returns made on these citations, on the 27th and 29th of the same month, showed that they were not served, because defendants were not to be found in Dallas County, and no other citations were found among the papers of the case, and the record does not affirmatively show that any others were issued.
This is an agreed case, and the other facts affecting the question of jurisdiction are thus given:
"6. The following entry is made on the judge's docket, viz.: 'October term, 1875, Philip Lindsley appointed guardian ad litem for the defendants, Thomas and Richard Alston.' There is nothing else to indicate when the guardian ad litem was appointed. June 15, 1876, the guardian ad litem filed for the said Thomas and Richard Alston an answer containing a general and special demurrer and a general denial. Said guardian represented said minors throughout said proceedings, and in the judgment affirming the report of the commissioners appointed, as hereinafter shown, to divide the land, a fee of $25 was allowed said guardian ad litem for his services as such.
"7. April 29, 1878, John M. Stemmons was permitted to intervene in said cause. In his plea of intervention filed on said date he alleged, that on April 9, 1858, Richard Alston, Sr., father of defendants Thomas and Richard Alston, sold by metes and bounds 50 acres of said 426 acres survey to Jesse Atterburry, and that Atterburry afterward sold the same to Estes, and Estes afterward sold the same to intervenor; intervenor asked that 50 acres of the land to which Richard and Thomas Alston were entitled by reason of their heirship from their father, Richard Alston, Sr., be set aside to him.
"8. April 29, 1878, judgment was rendered in said cause. There were no recitals in said judgment that defendant had been served with citation, or that the court had jurisdiction over their persons, other than the following recital in the judgment, viz.: 'This day came the parties by their attorneys, and waive a jury, and submit the matters in controversy, as well of fact as of law, to the court; and the evidence and argument of counsel being heard,' etc. This judgment determined the interest of each of the parties in said tract of land. The interest of Richard and Thomas Alston together was adjudged to be one-sixth, out of which it was decreed that the intervenor John M. Stemmons was *Page 236 entitled to 50 acres. Commissioners were appointed to partition said survey in accordance with said judgment, and were directed to set aside to intervenor 50 acres out of the one-sixth adjudged to the said Richard and Thomas Alston.
"9. The original petition filed in said partition proceedings represented that there were four of the Angell heirs, entitled together to one-twelfth of said survey; the four heirs were named. The decree made no mention of Thomas Angell, one of the Angell heirs, but it ascertained and named the parties to whom the land in controversy jointly belonged, and assigned to each one his interest, naming the three Angell heirs entitled to one-twelth, and upon this basis partition was made. After the original petition was filed it appears of record that leave was given plaintiffs to file an amended petition; but no amended petition was found among the papers of the cause."
Appellants, over objection of appellee, testified, that they were never served with citation in this partition suit, but that they knew of the proceedings and partition under them a few days after the commissioners partitioned the land; and one of them at time of trial was 27 years old and the other 29.
"It is admitted by the parties, that unless it affirmatively appears from the record as above set out in said partition proceedings that the court did not have jurisdiction over the persons of defendants, or unless they could show a want of jurisdiction over their persons by oral evidence, that then said judgment is valid and binding on defendants. The parties therefore submit for the decision of the Supreme Court the following issues:
"1. Does the record in said partition proceedings as above set out show affirmatively the want of jurisdiction over the persons of defendants?
"2. If the record does not show the want of jurisdiction over the persons of defendants, can it be shown by the oral evidence of the defendants themselves in this proceeding?
"3. If, however, the court did not have jurisdiction over the persons of the defendants, but nevertheless appointed a guardian ad litem for them, who represented them throughout the proceedings, what would be the effect of the judgment rendered under such circumstances against the minor defendants?
"4. If the judgment rendered in said partition proceedings is valid and bindings on these defendants, would it be res adjudicata as to any other title except that which the record above set out shows to have been involved in that proceeding; and if it was not, does the evidence show that John D. Alston gave the survey to the father of these defendants, or does the evidence show a title by limitation in them under the ten years statute of limitation? *Page 237
"5. It is agreed that the court may render such judgment as the law and facts may warrant."
In the view taken of one question involved in this case it is not necessary to consider the first and second issues submitted; for if it be conceded that it was shown in any lawful manner that appellants were never served with process in the partition suit, still all the members of this court concur in holding, under the former decisions of this court, that the judgment through which appellee acquired right was at most only voidable.
It appears that appellants were represented by a guardian ad litem appointed by the court, and the question whether a judgment rendered under such circumstance against a minor not actually brought into court by service of process was void or only voidable was considered, after having been long held under advisement, by this court in the case of McAnear v. Epperson,54 Tex. 220, in which it was held, that a judgment rendered without actual service of process on the minors who were represented by a guardian ad litem was not void. That decision has doubtless been often acted upon, it has become a rule of property, and in view of the great conflict of authority upon the question involved, were this not so, we would not feel authorized now to establish a different rule. The case referred to is in harmony with the former decisions of this court. Thomas v. Jones, 10 Tex. 52; Kegans v. Alcorn,9 Tex. 34; Wheeler v. Ahrenbeak, 54 Tex. 536.
Cases have been before this court on appeal or writ of error in which judgments were reversed for want of service on minors, notwithstanding they were represented by guardians ad litem, and expressions may be found in some of these cases from which the inference might be drawn that the writer of the opinion may have inclined to the view that judgments rendered under such circumstances were void. Kremer v. Haynie, 67 Tex. 451; Sprague v. Haines, 68 Tex. 218. The difference between void and voidable judgments, and between direct and collateral attacks on judgments, are too well understood to now require statement.
The judgment under consideration in this proceeding must be held binding on appellants.
It is contended, however, that the judgment partitioning the estate of the grandfather of appellants would not operate as a bar to any right they may have taken by inheritance from their father, and it seems to be claimed that their father acquired title to the tract of land, of which that in controversy is a part, through a verbal gift from their grandfather as well as by adverse possession. We are of opinion, however, that there was no evidence sufficient to show that the father of appellants had acquired title by verbal gift from their grandfather, nor to show that their father or themselves had acquired title by limitation, and it therefore becomes unnecessary to inquire whether the rule asserted *Page 238 in Thompson v. Cragg, 24 Tex. 582, would have application were the facts sufficient to show title to the land in the father of appellants.
The sale under execution through which appellee claims was made in September, 1879, and passed all interest appellants had in the tract of land set apart to them, and as this action was instituted on October 7, 1886, appellants could not have acquired title to any of that land, or to the land set apart to the other heir of John D. Alston, by limitation, even if they had been shown to have been in continuous possession of those parts of the tract at all times since appellee acquired right; but it is not shown that they have ever had possession of those parts at any time.
It is urged that the judgment rendered in the partition suit was void because it did not dispose of the rights of all parties to it. This is based on the fact that the original petition alleged that the four Angell heirs were entitled together to one-twelfth of the tract to be partitioned, whereas the final decree gave one-twelfth of the tract to three of the Angell heirs, and made no mention of the fourth. This fact would strengthen the inference which arises from other parts of the record that the record of the proceedings in the partition suit produced on the trial of this cause was not a complete record, and it might be presumed that when leave to do so was given an amended petition was filed which showed why one of the Angell heirs ought or could not longer be a party to the suit, and why the one-twelfth of the tract should be given to three instead of four; but if the decree did in fact fail to dispose of the right of one, a party to the proceeding and having an interest in the land, this would not render the decree void, nor could appellants take advantage of any such defect in the proceedings not operating to their injury in order to invalidate the title of appellee acquired through sales made under process issued against themselves and another under that decree.
We find no error in the judgment, and it will be affirmed.
Affirmed.
Delivered February 5, 1892.
A motion for rehearing was refused. *Page 239