Donald v. Davis

Decision Date30 January 1948
Docket NumberNo. 14910.,14910.
Citation208 S.W.2d 571
PartiesDONALD et al. v. DAVIS.
CourtTexas Court of Appeals

Appeal from District Court, Wise County; J. E. Carter, Judge.

Suit by J. M. Donald and another against J. W. Davis for title and possession of land. From an adverse judgment, plaintiffs appeal.

Affirmed.

Donald & Donald, of Bowie, for appellants.

T. B. Coffield, of Bowie, and Tom McMurray, of Decatur, for appellee.

McDONALD, Chief Justice.

Paul and J. M. Donald brought this suit against J. W. Davis for title and possession of a nine acre tract of land situated in Wise County. Trial to the court without a jury resulted in a judgment denying plaintiffs a recovery. The court did not file separate findings of fact and conclusions of law, but the judgment contains the following recital:

"* * * and the Court having heard the pleadings, the evidence, and argument of counsel, is of the opinion that Defendant holds record title, through regular chain of conveyances from the Sovereignty, superior to Plaintiffs' title, and also that Defendant and those under whom he claims have been in peaceable and adverse possession, under color of title for more than three years next after Plaintiffs' cause of action accrued, paying all taxes thereon before delinquency, * * *."

Plaintiffs appeal, relying on eight points of error.

The fee title to the land was vested in M. A. Vantine on February 16, 1914, on which date Vantine conveyed the land to J. E. Davis. The chronological order of events after that time is somewhat as follows: On December 18, 1931, J. E. Davis conveyed the land to J. R. Wilson. On January 20, 1932, The First National Bank of Bowie, Texas, recovered a judgment against J. E. Davis and others for the sum of $1217.61. On June 29, 1934, an alias execution was issued on said judgment, addressed to the Sheriff or any Constable of Wise County, which execution was levied on the nine acres in question on July 6, 1934. On August 1, 1934, the deed from J. E. Davis to J. R. Wilson was filed for record. On August 7, 1934, the Sheriff of Wise County sold the land at execution sale to said First National Bank of Bowie, and on the same day executed a sheriff's deed thereto. Said sheriff's deed was filed for record on October 24, 1934. Said Bank executed a conveyance of said land to J. W. Davis, defendant in the present suit and appellee in this court, on January 10, 1935, which deed was filed for record on January 14, 1935. J. R. Wilson executed a conveyance of said land to Paul and J. M. Donald on October 19, 1939, which was filed for record on October 21, 1939. The deeds from Vantine to Davis, Davis to Wilson, and Wilson to the Donalds, are in the usual form of general warranty deeds. The deed from the Bank to J. W. Davis does not contain an express covenant of warranty, but is an unqualified conveyance of the fee title, and contains a special provision which will be noted later. Other pertinent facts will be mentioned in our discussion of the several points of error.

The complaint made under the first point of error is in substance that the court erred in rendering judgment for defendant because the description of the land contained in the sheriff's return on the execution is insufficient to locate and identify the land levied upon. The complaint made under the second point is that the evidence fails to show that a valid levy of execution was made in that there was not shown any entry on an execution docket, the return was shown not to have been made until the next day after the sheriff's sale, the sheriff's return was actually written by the attorney for the judgment creditor, and the return did not describe the land which was described in the sheriff's deed.

Both points of error are overruled. The Bank's attorney testified that he wrote out the sheriff's return the day after the sheriff's sale. The return describes the land as being:

"Nine (9) acre tract of land in Falls County School Land, and being out of the N. E. Corner of a tract now owned by J. W. Davis and particularly described in advertisement attached hereto."

Attached to the return by staples was a purported copy of notice of execution sale, which contained the number and style of the suit, the date of the judgment and the names of the judgment creditor, and the judgment debtors, the date the levy was made, the date the sale was to be made, and other information including a metes and bounds description of the land in controversy. The sheriff's deed recites that the land therein conveyed, which is the land now in controversy, was levied upon on July 6, 1934.

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4 cases
  • KIRBY LUMBER CORPORATION v. Williams
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 24, 1956
    ...Appealing from that judgment, plaintiff is here insisting that, under Laffare v. Knight, Tex.Civ.App., 101 S.W. 1034, Donald v. Davis, Tex.Civ.App., 208 S.W.2d 571, and Regan v. Andrews, Tex. Civ.App., 241 S.W.2d 249, the court erred in so holding, and the judgment must, therefore, be rever......
  • Moran v. Adler
    • United States
    • Texas Supreme Court
    • July 26, 1978
    ...Marble Co., 72 Tex. 53, 11 S.W. 1027 (1888); Lewis v. Johnson, 68 Tex. 448, 450, 4 S.W. 644, 645 (1887); Donald v. Davis, 208 S.W.2d 571, 573-74 (Tex.Civ.App. Waco 1948, writ ref'd); Benn v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App. Beaumont 1932, writ ref'd); Hunl......
  • Gainesville Oil & Gas Co., Inc. v. Farm Credit Bank of Texas
    • United States
    • Texas Court of Appeals
    • February 9, 1993
    ...Marble Co., 72 Tex. 53, 11 S.W. 1027 (1888); Lewis v. Johnson, 68 Tex. 448, 450, 4 S.W. 644, 645 (1887); Donald v. Davis, 208 S.W.2d 571, 573-74 (Tex.Civ.App.--Waco 1948, writ ref'd); Benn v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App.--Beaumont 1932, writ ref'd); Hu......
  • Reagan v. Andrews
    • United States
    • Texas Court of Appeals
    • June 1, 1951
    ...title, even though the subsequent purchaser is not an innocent purchaser. Laffare v. Knight, Tex.Civ.App., 101 S.W. 1034; Donald v. Davis, Tex.Civ.App., 208 S.W.2d 571, writ Complaint is made of the insufficiency of appellees' evidence to show the amounts expended for improvements on the la......

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