Watts, J. Com. App.—
After the consent decree was entered in the case of George Lary et als. v. C. C. Binkley et als., the appellee Bomar brought suit in the district court of Grayson county against all the other parties to that decree, in which he sought to have the same vacated and the cause tried upon its merits. The grounds upon which he sought the relief were these: That his attorneys were not authorized to make the compromise and consent to the decree; that certain testimony taken by deposition by plaintiffs in that case was false, in this, that it was therein shown that Biley Dunman, the son, died after the death of his father, Sherrod Dun-man; that B. L. Parker, who took the depositions, was interested in the result of the suit, and that the plaintiffs and their attorneys knew at the time and before the entry of the decree that the evidence was false and that Parker was interested, and concealed these facts from his attorneys, who, not knowing of the falsity of the evidence or Parker’s interest in the subject matter of the controversy, Avere thereby deceived, and, by the plaintiffs therein urging a trial, his attorneys were induced to make the compromise and consent t<? the decree. That in fact Biley Dunman died before his father, Sherrod Dunman, which fact he could establish by evidence discovered since said decree was rendered. Also that Parker, who took and superintended the taking of said depositions, was interested with the plaintiffs in the result of that suit, which he nor his attorneys knew or could have known by any reasonable diligence until some time after the decree was rendered, and that there was a mistake in the decree as to the description of the land adjudged to Spencer, his vendee. On September 22, 1879, general and special exceptions were sustained to Bomar’s original and amended petitions, and judgment was rendered dismissing his case, dissolving an injunction theretofore granted in his behalf, and judgment for costs of the suit. To that judgment Bomar excepted and gave notice of appeal, but no appeal was perfected.
In his cross-bill in this case he sought to have the consent decree vacated and the cause tried on its merits, upon the same grounds that he asserted in his suit. To this cross-bill he appended as exhibits all the pleadings and judgment in the case brought by him, and also therein stated the history and result of that case.
Appellants excepted specially to the cross-bill of Bomar, on the ground that it appeared from the same that as to him the matters therein set up were res adjudicatei. This exception wa's overruled and exceptions saved to the ruling.
In accordance with the previous decisions in this state, the judg[161]*161ment against Bomar, dismissing his petition, etc., must be considered as a final judgment, from which an appeal could have been taken. Hanks v. Thompson, 5 Tex., 6; West v. Bagby, 12 Tex., 34; Bradshaw v. Davis, 12 Tex., 344; Hagood v. Grimes, 24 Tex., 16.
A judgment on demurrer may be as conclusive as a former adjuration as would a judgment on the facts, but to have that effect it must clearly appear that the demurrer went to the merits of the action or defense, otherwise it would be presumed that the objection was to the form, and not to the merits. Bes Adjudicata and Stare Decisis, by Wells, sec. 446.
Here there were general and special exceptions taken, and all 'sustained, to Bomar’s petition and amendments. And upon further amendment, curing in part the objections pointed out by the special exceptions, the general and special exceptions were again renewed and were all sustained. An examination of the pleadings in that case very clearly and distinctly shows that the court, in passing upon the demurrers, considered them as going to the merits of the case, and by the ruling held that there was no cause of action stated in the petition and amendments.
How, as to the correctness of that ruling, we have nothing to say, for that judgment is final and conclusive as between the parties . thereto until it is reversed, vacated or set aside. This clearly appears from Bomar’s cross-bill and attached exhibits, and the court below should have sustained the special exceptions taken to the ■same. As to the appellee Bomar this disposes of the case, but as to .appellee Spencer other questions are presented for determination. In the consideration of this branch of the case very many of the objections urged will be pretermitted as immaterial errors in no way ■affecting the result.
In response to special issues the jury found that Spencer was not represented by any authorized attorney in the suit wherein the consent decree was rendered, and that he had not been served with process, and that the party who had accepted service for him did so without authority, and the attorneys who appeared for him were not authorized by him to make such appearance, orto represent him in the suit. There is sufficient evidence in the record to sustain that finding, and to the admissibility of which no objections were made. And as he had not been made a party to the suit by any of the modes known to the law, he would not be bound by the judgment. But he had the option either to have it vacated by direct proceeding or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same. *
[162]*162It clearly appears that, after the death of Sherrod Dunman, there was an agreement between Mrs. Amy Dunman and his sister,. Mrs. McFarland, by which the certificate, though not issued, was partitioned between them, and by which the latter was to have one-third of the certificate. This is also affirmed by the special finding of the jury.
It matters not whether that agreement was verbal or in writing, for, as appears from the evidence and findings of the jury, the parties acted in pursuance of the same. Mrs. McFarland, with the consent of her husband, sold her one-third interest in the certificate to Duncan, and, as shown by the evidence and affirmed by the verdict, Mrs. Amy Dunman knew of that sale and acquiesced in the sale; and it is not shown that she ever thereafter asserted any claim' whatever to that interest in the certificate. The evidence sustains the findings of the jury to the effect that Duncan sold that interest in the certificate to Pulliam, and Pulliam to Larkin, and that the latter located the same upon the land in controversy and procured the issuance of the patent therefor to the heirs of Sherrod Dunman.
It also appears from the evidence as affirmed by the jury, that Everts purchased the land from Larkin in 1852 and went into the actual possession at once under recorded deed, and in 1854 sold and conveyed the same to the Bomars. The conveyance was duly recorded and they went into the immediate actual possession, and that possession was continued until 1864.
It is objected that the deed from Everts to the Bomars was an escrow from 1854 to 1856, and therefore there was no connective and continuous holding under deed or deeds duly recorded. The conveyance was made and recorded and placed with an attorney to be delivered when the Bomars paid the balance of the purchase money, which became due in 1856. This purchase money was paid when it became due in 1856, and the deed was delivered. During the interim the Bomars were in the actual possession of the land, cultivating, using and enjoying the same, paying the taxes, and claiming the same openly, notoriously and adversely to appellants and all the world.
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Watts, J. Com. App.—
After the consent decree was entered in the case of George Lary et als. v. C. C. Binkley et als., the appellee Bomar brought suit in the district court of Grayson county against all the other parties to that decree, in which he sought to have the same vacated and the cause tried upon its merits. The grounds upon which he sought the relief were these: That his attorneys were not authorized to make the compromise and consent to the decree; that certain testimony taken by deposition by plaintiffs in that case was false, in this, that it was therein shown that Biley Dunman, the son, died after the death of his father, Sherrod Dun-man; that B. L. Parker, who took the depositions, was interested in the result of the suit, and that the plaintiffs and their attorneys knew at the time and before the entry of the decree that the evidence was false and that Parker was interested, and concealed these facts from his attorneys, who, not knowing of the falsity of the evidence or Parker’s interest in the subject matter of the controversy, Avere thereby deceived, and, by the plaintiffs therein urging a trial, his attorneys were induced to make the compromise and consent t<? the decree. That in fact Biley Dunman died before his father, Sherrod Dunman, which fact he could establish by evidence discovered since said decree was rendered. Also that Parker, who took and superintended the taking of said depositions, was interested with the plaintiffs in the result of that suit, which he nor his attorneys knew or could have known by any reasonable diligence until some time after the decree was rendered, and that there was a mistake in the decree as to the description of the land adjudged to Spencer, his vendee. On September 22, 1879, general and special exceptions were sustained to Bomar’s original and amended petitions, and judgment was rendered dismissing his case, dissolving an injunction theretofore granted in his behalf, and judgment for costs of the suit. To that judgment Bomar excepted and gave notice of appeal, but no appeal was perfected.
In his cross-bill in this case he sought to have the consent decree vacated and the cause tried on its merits, upon the same grounds that he asserted in his suit. To this cross-bill he appended as exhibits all the pleadings and judgment in the case brought by him, and also therein stated the history and result of that case.
Appellants excepted specially to the cross-bill of Bomar, on the ground that it appeared from the same that as to him the matters therein set up were res adjudicatei. This exception wa's overruled and exceptions saved to the ruling.
In accordance with the previous decisions in this state, the judg[161]*161ment against Bomar, dismissing his petition, etc., must be considered as a final judgment, from which an appeal could have been taken. Hanks v. Thompson, 5 Tex., 6; West v. Bagby, 12 Tex., 34; Bradshaw v. Davis, 12 Tex., 344; Hagood v. Grimes, 24 Tex., 16.
A judgment on demurrer may be as conclusive as a former adjuration as would a judgment on the facts, but to have that effect it must clearly appear that the demurrer went to the merits of the action or defense, otherwise it would be presumed that the objection was to the form, and not to the merits. Bes Adjudicata and Stare Decisis, by Wells, sec. 446.
Here there were general and special exceptions taken, and all 'sustained, to Bomar’s petition and amendments. And upon further amendment, curing in part the objections pointed out by the special exceptions, the general and special exceptions were again renewed and were all sustained. An examination of the pleadings in that case very clearly and distinctly shows that the court, in passing upon the demurrers, considered them as going to the merits of the case, and by the ruling held that there was no cause of action stated in the petition and amendments.
How, as to the correctness of that ruling, we have nothing to say, for that judgment is final and conclusive as between the parties . thereto until it is reversed, vacated or set aside. This clearly appears from Bomar’s cross-bill and attached exhibits, and the court below should have sustained the special exceptions taken to the ■same. As to the appellee Bomar this disposes of the case, but as to .appellee Spencer other questions are presented for determination. In the consideration of this branch of the case very many of the objections urged will be pretermitted as immaterial errors in no way ■affecting the result.
In response to special issues the jury found that Spencer was not represented by any authorized attorney in the suit wherein the consent decree was rendered, and that he had not been served with process, and that the party who had accepted service for him did so without authority, and the attorneys who appeared for him were not authorized by him to make such appearance, orto represent him in the suit. There is sufficient evidence in the record to sustain that finding, and to the admissibility of which no objections were made. And as he had not been made a party to the suit by any of the modes known to the law, he would not be bound by the judgment. But he had the option either to have it vacated by direct proceeding or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same. *
[162]*162It clearly appears that, after the death of Sherrod Dunman, there was an agreement between Mrs. Amy Dunman and his sister,. Mrs. McFarland, by which the certificate, though not issued, was partitioned between them, and by which the latter was to have one-third of the certificate. This is also affirmed by the special finding of the jury.
It matters not whether that agreement was verbal or in writing, for, as appears from the evidence and findings of the jury, the parties acted in pursuance of the same. Mrs. McFarland, with the consent of her husband, sold her one-third interest in the certificate to Duncan, and, as shown by the evidence and affirmed by the verdict, Mrs. Amy Dunman knew of that sale and acquiesced in the sale; and it is not shown that she ever thereafter asserted any claim' whatever to that interest in the certificate. The evidence sustains the findings of the jury to the effect that Duncan sold that interest in the certificate to Pulliam, and Pulliam to Larkin, and that the latter located the same upon the land in controversy and procured the issuance of the patent therefor to the heirs of Sherrod Dunman.
It also appears from the evidence as affirmed by the jury, that Everts purchased the land from Larkin in 1852 and went into the actual possession at once under recorded deed, and in 1854 sold and conveyed the same to the Bomars. The conveyance was duly recorded and they went into the immediate actual possession, and that possession was continued until 1864.
It is objected that the deed from Everts to the Bomars was an escrow from 1854 to 1856, and therefore there was no connective and continuous holding under deed or deeds duly recorded. The conveyance was made and recorded and placed with an attorney to be delivered when the Bomars paid the balance of the purchase money, which became due in 1856. This purchase money was paid when it became due in 1856, and the deed was delivered. During the interim the Bomars were in the actual possession of the land, cultivating, using and enjoying the same, paying the taxes, and claiming the same openly, notoriously and adversely to appellants and all the world.
Undoubtedly, when the money was paid and the deed was fully delivered, that delivery related back to the date when the Bomars purchased and went into possession.
It is also urged that the court erred in admitting as evidence a certified copy of the Sherrod Dunman certificate with the transfer by W. H. Pulliam to Larkin of one-third interest in the same indorsed or written on the original certificate. This certified copy was from [163]*163the general land office, and it appeared from the certificate of the commissioner that the original certificate with the transfer written thereon was on file in that office. The objection was to the transfer, upon the ground that the patent had not issued to the assignee, and therefore the transfer was not an archive in the land office. Under the statutes in force prior to the act entitled “An act to better protect the papers, records and files in the general land office,” approved June 2, 1873, the doctrine contended for by appellants was well established. But it is provided by the fourth section of that act that “Ho transfer or deed that may be a link in any chain of title to any certificate on file in the general land office shall be withdrawn by any one; but the commissioner shall, on demand, deliver to the interested party certified copies, which shall have the same force and effect as the originals.” It has been held by recent decisions that the effect of that provision was to make all transfers to certificates on file in the general land office, and coming within its terms, archives. i
Here the transfer was nearly forty years old at the time of the trial. If the original had been produced from the proper source it would have been admissible as an ancient document. It appears, from the certificate of the commissioner that the original was in the proper custody; hence by the express terms of the statute the certified copy had the same force and effect as would have been accorded to the original had it been produced. This certificate, was-located on the land in 1841, and but a short time after the transfer-had been written on it, and it will be presumed that it had remained on file in the general land office since that date, as the evidence of the right of Larkin and those claiming under him.
Objections were urged to the admissibility of a transcript from, the district court of Red River county, in a suit by Pulliam against Duncan for specific performance of a bond, to make the latter a title-to one-third of the Sherrod Dunman certificate. It is claimed that the petition shows that it was filed in the county court, then called a court of quarter sessions', and that the judgment was rendered in the district court; and that there is no order of transfer shown to have been made. It appears, however, that the petition was filed in the district court March 29, 1839, and that the decree was rendered by that court October 6, 1840.
By the act of January 26,1839, the civil jurisdiction of the county courts was greatly reduced, and all process theretofore issued out of that court, in cases involving one hundred dollars and upwards, was required to be returned to the district court. Hart. Dig., art. 267. [164]*164Doubtless under that legislation the petition was filed in the district court, and no order of transfer seems to have been contemplated.
After the parties had announced ready upon the merits, and had gone into the trial, the court, over the objection of. the appellants, • permitted the appellees to amend their pleadings. The statute provides that pleadings may be amended before the parties announce themselves ready for trial, “ and not thereafter.” R S., art. 3192.
In Whitehead v. Foley, 28 Tex., 10, it was held that a general rule is prescribed by that statute, to the effect that, after announcement, the parties are not entitled, as a matter of right, to amend their pleadings, but that it is in the power of the court to allow such amendments after that time as might become necessary to attain the ends of justice.
Appellants claim'that the court erred in admitting as evidence certain recitals in the petition filed in the cause of Pulliam v. Duncan, and also recitals in the bond for title which was the basis of that suit. It seems that these recitals were admitted upon the theory that they tended to show that McFarland consented in writing to the sale of the one-third interest in the certificate to Duncan. It does not appear to us that such recitals were admissible for that purpose. But from an examination of the record it appears that the error was .immaterial, and that no injury resulted to appellants therefrom.
The sale of a land certificate or the right thereto has never been required to be evidenced by a written transfer. A verbal sale is sufficient. Randon v. Barton, 4 Tex,, 292; Cox v. Bray, 28 Tex., 247; Johnson v. Newman, 43 Tex., 640; Stone v. Brown, 54 Tex., 334.
In 1838 Mrs. McFarland could sell and dispose of her interest in, or right to, the certificate with the assent of her husband, and it was not necessary that such assent should be in uniting. And after so great a lapse of time, and no adverse right having been asserted by him or his heirs, his assent and acquiescence will be presumed, and especially so where, as in this case, he was aware of the sale. Harvey v. Hill, 7 Tex., 591; Poor v. Boyce, 12 Tex., 448.
It appears from the finding of the jury, in response to special issue No. 23, that Nancy McFarland and her husband, William McFarland, sold a third interest in the certificate to Duncan in, 1837 or 1838, and that Amy Dunman assented to and ratified the sale. This finding is sustained by the evidence of Janes and others, and there was no conflict of evidence upon that issue. So that the other issue propounded, as. to McFarland’s assent to the sale to Duncan, was [165]*165immaterial, and any error respecting that issue could not have affected the result.
The jury also found that Sherrod Dunman had no child or children living at the time of his death, but that Riley Dunman died before bis father. While there is a conflict of evidence upon that point, the finding of the jury, being sustained by the evidence, is conclusive. Therefore, the appellants could not successfully assert any claim or right to the land as heirs of Riley Dunman. And as Mrs. Amy Dunman had agreed to the partition between her and Mrs. McFarland, and had assented to and acquiesced in the sale of the one-third interest in the certificate by the latter to Duncan, she thereafter had no such right to or interest in that part of the certificate as would descend to her children at the time she died. Those who had acquired that interest had the right to locate the certificate to that extent. Farris v. Gilbert, 50 Tex., 356.
From the issuance of the certificate March 27, 1838, until the institution of the suit of George Lary v. C. C. Binkley, the appellees and those under whom they claim have openly asserted iheir right to that interest in the certificate, and the land located by virtue of it. And during that long period of thirty-seven years no effort was made by the appellants to repel that hostile assertion of right. If they ever had any interest in that part of the certificate, which they did not, still they have slept too long upon their rights, and would not at this late day be heard to assert them. League v. Rogan, Tex. Law Review, vol. 1, p. 226.
Every fact necessary to the complete bar of five years’ limitation appears from the finding of the jury. When Martha Lary married her disability of minor age was removed, and that of coverture could not be tacked so as to save the running of the statute.
It also appears that there was a mistake in the consent decree. In that decree it is recited that Spencer is to have his land, but, in the description following, the error is made of dividing the land east and west instead of north and south, and it is not contended by any one except Taylor, but what he had the right to have that mistake corrected. As to Taylor, who claims to have been an innocent purchaser for value and without notice, the jury found that lie was not a purchaser in good faith and for a valuable consideration. This finding is not, as claimed, without support. There is evidence of notice; and besides, Spencer’s deed from Bomar containing a correct description of the land was on record in the county long before Taylor’s purchase.
Every fact necessary to the establishment of Spencer’s right to [166]*166the land claimed by him is affirmed by the jury in response to special issues submitted, and the errors complained about are entirely immaterial and could in no event change the result.
Our conclusion is, therefore, that the judgment as to appellee Bomar ought to be reversed, and that the supreme court ought to render such judgment as to him as ought to have been rendered by the court below. That is, the appellant’s exceptions be sustained to the cross-bill of said Bomar, and that he recover nothing by reason thereof, and that he pay the cost occasioned by the same; and as to appellee Spencer, that the judgment as rendered in the court below be in all things affirmed.
Above report of commissioners of appeals examined, their opinion adopted and the judgment affirmed as to Spencer; but in view of the fact that the appellee Bomar, upon exceptions being sustained to his cross-bill, is entitled to amend the same if he so chooses, the cause will be reversed as to him, and remanded, in order that he may obtain leave to amend should he choose to apply for such leave; otherwise that said cross-bill be dismissed and the said Bomar recover nothing by reason thereof, Willie, Chief Justice.
Reversed and remanded.
[Opinion acted on February 18, 1881.]