
    HOUSTON OIL CO. OF TEXAS v. DAVIS et al.
    (Court of Civil Appeals of Texas.
    Nov. 14, 1910.)
    1. Trespass to Try Title (§ 28) — -Bringing Warrantors into Suit — Statutes — Diligence.
    The right of a defendant in an action of trespass to try title to bring his warrantors in as parties defendant must be exercised with reasonable diligence, so as not to delay the trial of the case, in accordance with Rev. St. 1895, art. 1209, relating to parties to suits, but any delay necessary to enable a party to bring in its warrantor by proper pleading and citation is not unreasonable delay.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 34, 35; Dec. Dig. § 28.]
    2. Continuance (§ 6) — Grounds—Bringing in Additional Parties.
    A defendant in trespass to try title cannot take any steps to bring his warrantors into the suit as defendants until the suit is filed, and, where he has only 14 days before the first day of the term after the suit is filed in which to file a cross-bill against his warrantors and make service upon them, and they live in different counties and some at a distance, the time allowed to the defendant is not sufficient, and he is entitled to a continuance.
    [Ed. Note. — For. other cases, see Continuance, Dee. Dig. § 6.]
    3. Continuance (§ 6) — Discretion op Dower Court — Suit Delayed por Convenience op Dependant.
    Before the filing of an action of trespass to try title, there was correspondence between the claimants, and the defendant had requested a short time in which to see if the matter could not be settled, agreeing to appear without citation and answer to the return term. For this purpose, there was a delay of about two months in bringing the suit, defendant acting in good faith, and appearing and answering as agreed. Held, that the defendant by the request for delay and its allowance did not lose its right to a continuance, where there was insufficient time before the next term after suit was filed in which to bring in warrantors as defendants.
    [Ed. Note. — For other cases, see Continuance, Dec. Dig. § 6.]
    4. Trespass to Try Title (§ 28) — Cross-Action — When May Be Filed.
    A defendant in trespass to try title is not entitled as a matter of right to wait until he is required to file his answer to the action before filing his cross-action, in pleading his warran-tors as defendants, for the cross-action can be set up in an independent pleading, and may be filed ■ at any time after he is properly served with citation in the pending suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Dec. Dig. § 28.]
    5. Judgment (§ 495) — Collateral Attack-Citation — When Jurisdiction Not Presumed.
    By Rev. St. 1895, art. 1236, citations to unknown heirs must be published for eight consecutive weeks, and by Rev. St. 1895, art. 1264, the defendants have until appearance day of the succeeding term in which to answer. A petition against unknown heirs was filed on August 10, 1898; the following term of court beginning on September 26th. The sheriff returned a publication of the citation, according to its directions to him, for four weeks with the dates thereof to the September term, and judgment was rendered at the next term thereafter against the unknown heirs, but there was no recital in the judgment of due service of process. Held, that it could not be presumed in support of jurisdiction that proper service was had; it affirmatively appearing from the entire record that there was no legal service.
    [Ed. Note. — For other cases, see Judgment, Dee. Dig. § 495.]
    6. Adverse Possession (§ 52) — Hostile Possession-Purchase of Title — Effect.
    Where a party has purchased a tax title, and has had possession of the premises purchased for the period necessary to perfect, title, the fact that after getting a tax title he bought out the interests or claims of some of the former owner’s heirs does not prevent his title from being adverse to them, as he could buy his peace without admitting their title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 259-265; Dec. Dig. § 52.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    Trespass to try title by E. M. Davis and others against the Houston Oil Company of Texas and another. Judgment for plaintiffs, and the defendant the Houston Oil Company of Texas appeals.
    Reversed and remanded.
    PI. O. Head and Parker, Orgain & Butler, for appellant. Holland & Holland, for ap-pellees.
    
      
      For Other cases see same topic and section NUMBER in Deo. Dig. & Am..Dig. Key No Scries & Rep’r Indexes
    
   REESE, J.

This is an action of trespass to try title by E. M. Davis and his coplain-tiffs against the Houston Oil Company and H. C. Fuller to recover the Nancy Cooper 640-acre survey of land. The Houston Oil Company answered by general demurrer aud general denial, and specially^ pleaded title by limitation of three, five, and ten years in bar of the action. A trial without a jury resulted in a judgment for plaintiffs against both defendants for an undivided one-third interest in the land, from which judgment only the Houston Oil Company appeals.

The land was patented to Nancy Cooper, and the plaintiffs are the sole heirs at law of one of the three daughters of Nancy Cooper, who- inherited from her. Defendants, appellants here, claim title through mesne conveyances under a judgment in favor of H. C. Fuller against the unknown heirs of Nancy Cooper, rendered April 5,1899, in addition to their limitation title. The petition was filed August 16, 1909, 14 days before the first day of the term of court to which the suit was brought. No service was had upon appellant, who, however, appeared and filed answer on appearance day. With its answer appellant filed its cross-action against 11 persons, under whom, it is alleged, it held the land by deeds with general warranty, and by appropriate averments it called upon said parties to defend the action, and sought judgment over against them for the several amounts for which, it was alleged, they were, respectively, liable on their warranties. Of these parties several were alleged to reside in Newton county, where the suit was brought. One is alleged to reside in Hardin county, one in Galveston county, one in Jasper county, and one in Harris county. The court began on August 30th. This answer and cross-bill were filed on August 31st. The case was called for trial on September 9th, when appellant filed its sworn application, setting out the facts herein recited with regard to the filing of the suit, and of its cross-action against its warrantors of title, and praying that» the cause be continued to enable it to bring them into court by proper citation and service. To this application .appellees replied, and admitted the facts with regard to appellant’s title as stated, but alleged that the suit was not filed sooner at the special request of appellant, and upon its agreement by letter of July 1, 1909, that it would appear, waive service, and answer at the return term, “and in good faith the defendant has had since said date to bring in any warrantors it desired.” From certain correspondence attached to this answer to the application for continuance it appears that, upon being advised of the intention of appellees to bring the suit, on June 29, 1909, appellant through its attorney requested appellees to wait a short time to enable it to investigate, with a view of determining whether the matter could be adjusted without litigation, to which ap-pellees agreed, provided appellant would agree to waive citation and answer to the coming term, which by letter of July 1st appellant agreed to do. The application for continuance was refused, and appellant compelled to go to trial, to which it took a bill of exceptions, and by its first assignment of error complains of the court’s ruling. Article 5252, Rev. St. 1895, is as follows: “When a party is sued for lands the real owner or warrantor may make himself or may be made a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.” It has been definitely settled in this state that a defendant when sued for land, not only has the absolute right to bring in his warrantor and require him to defend the action, but to recover against him in the same suit on his warranty if the title fail. Johns v. Hardin, 81 Tex. 40, 16 S. W. 623. It has been held that a plaintiff may also bring his warrantor into the suit and require him to make good the title, or be bound by an adverse judgment. Norton v. Collins, 1 Tex. Civ. App. 272, 20 S. W. 1115; McCreary v. Douglass, 5 Tex. Civ. App. 492, 24 S. W. 368. The purpose of the law is to avoid the necessity of more than one trial of the issue of title, and thus prevent a multiplicity of actions. It was held in Kirby v. Estill, 75 Tex. 485, 12 S. W. 807, that this right must under article 1209, Rev. St. 1895, be exercised with reasonable diligence, and so as not unnecessarily to delay the trial of the ease.

If a defendant proceed with reasonable diligence to bring in his warrantor by proper pleading and service of citation, it cannot be said that any delay which might be necessary to enable him to do so would be unreasonable delay. He cannot take any steps at all in this direction until the suit is filed to which it is desired that the warrantor be made a party. In the present case appellant, no matter how diligent he may have been, could have done nothing until the suit was instituted, which was 14 days before the first day of the term, and it is quite clear that the remaining 4 days were not reasonably sufficient to allow it to file its cross-bill, and get service upon the several defendants residing in as many different counties at some distance from that in which the suit was pending. Appellees seem to concede this in their brief, but seek to avoid the force of it by the contention that, as the filing of the suit was postponed for nearly two months for appellant’s convenience, it is thereby deprived of the benefit of the rule stated, and that in these circumstances the delay sought was unreasonable. We do not think this contention can be sustained. It would be unreasonable and unjust to deprive appellant of this right merely because it requested that appellees delay for a short time the filing of the suit in order that it might make investigation, and determine whether the matter involved might be adjusted without suit, in consideration of which delay it agreed to, and did, appear and answer without service of citation. There is no suggestion that this delay was not sought in good faith for the purpose indicated. It is specially important in this case that appellant be allowed to bring all or its war-rantors into this suit, so that one trial should settle the issue of title as to all the parties, thus avoiding the necessity of several different suits against the several independent warrantors.

We are inclined to think that a defendant thus sued, if he desires to implead his war-rantors, should, as soon as he is served with process, proceed without unreasonable delay to file his cross-action and bring them into court, and that he is not entitled, as a matter of right, to wait until he is required to file his answer to the plaintiff’s action before doing so, though there is an intimation to the contrary in the opinion of the court in Land v. Klein, 29 S. W. 658. Such a rule would require a continuance in every 'case for at least one term where the defendant sought to implead his warrantor. The cross-action may very well be set up in an independent pleading, without reference to defendant’s answer to the petition, and we can see no reason why it may not be filed at any time after the defendant is properly served with citation in the pending suit. In this case, however, it can hardly be seen how it was reasonably possible for appellant to have had its warrantors brought into court by proper process, after the filing of the suit, in time for trial at that term.

We are of the opinion that the learned trial court erred in refusing the continuance, for which the judgment will have to be reversed and the cause remanded, in order that appellant may have reasonable opportunity to bring in its warrantors.

By its second assignment of error, appellant presents the contention that, as appel-lees’ sole claim of title was as heir of Nancy Cooper, they showed no title in themselves, and were not entitled to recover, in that by the judgment in the case of H. C. Fuller v. The Unknown Heirs of Nancy Cooper all the title which appellees had was divested out of them and vested in H. C. Fuller, whose title appellant has, and that said judgment was not subject to the collateral attack made upon it in this ease. The facts with regard to this judgment are as follows: The suit was begun by filing the petition on August 10, 1898. The term of the court to which it was brought began September 26th thereafter. There was found among the papers of the ease and introduced in evidence by ap-pellees a citation to the unknown heirs or. Nancy Cooper, dated August 9, 1898, with the sheriff’s return indorsed thereon, showing service by publication in the Newton County Record four successive weeks prior to the return day, to wit, on August 26th and September 2d, 9th, and 16th; also affidavit of the publisher that it had been published four times in said newspaper, giving the dates as August 19 and 26 and September 2 and 9, 1898. At the second term of the court thereafter, to wit, on April 5, 1899, the following judgment was rendered: “No. 548. H. C. Fuller v. Unknown Heirs of Nancy Cooper, 4-5-99. This day this cause came on to be heard and the plaintiff appeared by his attorney, and the defendant having failed to appear and answer, the court, by orders duly entered on the minutes, appointed ■Messrs.. T. H. Good and J. F. Syler, attorneys in attendance on the court, to represent the unknown heirs of Nancy Cooper. Both parties announced ready for' trial, and submitted the matters in controversy, as well of fact as of law, to the court, and, the pleadings and evidence and arguments of counsel having been heard and fully understood being of opinion that the law and facts are for plaintiff, it is considered by the court that the plaintiff, H. C. Fuller, recover of the defendants, the ..unknown heirs of Nancy Cooper, the title and possession of the premises described and bounded as follows: The Nancy Cooper headright of 640' acres, situated in Newton county, Texas, on Quicksand creek.” Here follows the field notes and the formal part of the judgment awarding fee to the attorneys, taxing costs, etc.

There is in the judgment no recital of due service of process, nor of any other facts which would give the court jurisdiction. None of the recitals in the judgment can be given this effect. So the rules applicable to judgments containing such recitals when it is sought to attack them collaterally have no application. It belongs to that class of cases where it will be presumed, in support of the jurisdiction, that proper service was had, unless it affirmatively appears from the entire record that there was no legal service. Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80; Treadway v. Eastburn, 57 Tex. 211; Fowler v. Simpson, 79 Tex. 616, 15 S. W. 682, 23 Am. St. Rep. 370. The statute provides that citation to unknown heirs should be published for eight successive weeks before return day (Rev. St. 1895, art. 1236), and that the defendant was not required to answer until default day of the next succeeding term (Rev. St. 1895, art. 1264). The appointment of attorneys to represent the defendants shows that the service was by publication. If we presume that other and proper service by subsequent publication Was had, such could not have been completed after the filing of the suit, except to the April term, 1899, at which the judgment was rendered, and we would have to presume that the court disregarded the positive provisions of the statute which required the case to lie over to the next term after service was complete. Appellant contends that we should rather presume that this publication, shown to have been made for four weeks before the September term was continued for such time as to be complete to the April term, 1899, and that the court rendered judgment prematurely, which judgment would not be void. Davis v. Robinson, 70 Tex. 394, 7 S. W. 749; Tobar v. Losano, 6 Tex. Civ. App. 698, 25 S. W. 973. This we cannot do, for it would be in the face of the citation itself which commands the sheriff to cause the citation to be published “for four successive weeks previous to the return day,” which was, as stated in the writ, September 26, 1898. It is significant, as showing that the judgment was rendered on this four weeks’ publication and not any other, the existence of which we are asked to presume, that the affidavit of the publisher referred to was not made until April 1, 1899, and filed April 4th, the judgment being rendered April 5, 1899. The record affirmatively shows, with indisputable clearness, that the judgment was rendered upon this service by four weeks’ publication, which did not give the court jurisdiction of the parties. To presume otherwise would be carrying the doctrine to the verge of absurdity. It was simply mistakenly supposed that the four weeks’ publication was sufficient This is so clear from the record as to leave no room for the indulgence of presumptions. It is admitted by appellant that, if there was no other service, the judgment is void, and we must so hold.

One other question remains. Appellant, by its fifth assignment of error, presents the contention that, under the undisputed evidence, appellant established its title under the five and ten years’ statute of limitation as to part of the land, and under the five years’ statute as to the balance. Actual possession as claimed by appellant for the full period necessary to perfect its title, with payment of taxes, deeds duly registered, etc., seems to be shown by the undisputed evidence, set out in appellant’s brief, none of which is disputed by appellees in their brief, but it is contended that such possession is shown not to have been adverse. The fact that Ií. C. Puller, after getting his tax title, bought out the interest or claims of certain of the Nancy Cooper heirs, would not of itself prevent his possession from being adverse to them. He could “buy his peace” without admitting their title, but the testimony goes farther than this in showing, in the language of the witness, that Puller “always recognized their claim during the time that he was undertaking to buy them all out.” Warren v. Frederichs, 83 Tex. 384, 18 S. W. 750; Railway v. Wilson, 83 Tex. 157, 18 S. W. 325. We cannot say that the evidence on this issue is of that character that would justify this court in holding that the conclusion of the trial court on the facts, which is entitled to the same weight as the verdict of a jury, is contrary to the undisputed evidence. The assignment of error presenting the point is overruled.

Por the error in refusing the application for continuance the judgment is reversed and the cause remanded.

Reversed and remanded.  