T.L. Wren brought this suit in the District Court of Hartley County against John A. Scales, et al., to try the title to a tract of 175 acres of land.
The land was granted by patent of the State to William T. Crook as assignee of Thomas Toby on the 30th day of April, 1875, and the defendant in error Wren has the title of the patentee by a regular chain of transfer down to himself, — all of which were duly recorded in the office of the County Clerk of Hartley County. The deed to Wren stated that he was resident of Travis County, Texas. The plaintiff in error defended under a title derived from a sale of the property under a judgment for taxes against the "unknown owner." The sixth section of the Act entitled: "An Act to amend an Act entitled `An Act to provide for the collection of taxes,'" etc., contains this provision: "The County Collector, County Clerk and County Assessor shall furnish all affidavits, certified copies of the records of their respective offices, and such other evidence as may be in their possession by virtue of such office, as may be applied for by the County Attorney." (Laws 1897, p. 134.) Now it is plain that if the county attorney had called upon these officers, as it was his duty to do, the county clerk would have furnished him information which would have apprised him that the owner of the land was not unknown. This he did not do; but without inquiry from the sources provided by the statute, he makes the following affidavit: "I do solemnly swear that the owner or owners of the above described tract of land are unknown to me and after inquiry can not be ascertained." It is not easy to overcome a judgment upon collateral attack, for the reason that every question that could have been determined in the case is presumed to have been correctly determined in the former judgment and has become resadjudicata. But the question in the instant case is, have you got the proper parties? The statute authorizes a suit against the "unknown owner" of the land and not against an owner who is known and whose name and residence could have been discovered upon proper inquiry. Hence a judgment against the unknown owner does not conclude the title of one who is known. or can be known. No one can doubt that the judgment is conclusive as between the State and the unknown owner; but here we have a case in which the owner was known or could have been known by the slightest diligence. The known owner is entitled to his day in court and to be heard on defense of his rights. He is entitled to service of citation if he be within the jurisdiction of the court. Not having been served with process and being within the jurisdiction *Page 306 of the court, and not being an unknown owner he was not a party to the proceedings and we fail to see how he can be concluded by the judgment.
Therefore the judgment of the Court of Civil Appeals is affirmed.
Affirmed.