Ayres v. Duprey

• Decision Date: 01 January 1864
• Citation: 27 Tex. 593
• Parties: DAVID AYRES v. L. W. DUPREY.
• Court: Texas Supreme Court

27 Tex. 593

DAVID AYRES

v.L. W. DUPREY.

Supreme Court of Texas.

1864.

An official return made by a sheriff is the primary and best evidence of his action; and, as a general rule, in the absence of fraud or mistake, it cannot be varied or contradicted by the parol testimony of the sheriff.

NOTE.--A sheriff may be called to prove that a recital in his return was made by mistake or inadvertence, but not to vary the return, in the absence of fraud or mistake. (King v. Russell, 40 Tex., 124.)

When it was apparent that the belief of a witness, introduced to impeach the testimony of another witness, was based upon his individual opinion and feelings, and not upon his knowledge of the reputation for veracity of the assailed witness in the community of his residence, the testimony of the impeaching witness was properly excluded.

NOTE.--Roach v. The State, 41 Tex., 261.

The testimony of a witness cannot be contradicted by proving that he had made declarations and statements inconsistent with his testimony, unless a predicate had been laid by first inquiring of him with regard to the alleged declarations, and thus affording him an opportunity of meeting or explaining them.

The ruling in Boon v. Wethered (23 Tex., 675), that, in the impeachment of a witness, the inquiry should not extend to his general moral character, but must be confined to his general character for truth, cited and approved.

The decision of the court below upon an application for a continuance will not be disturbed by this court, unless injury or injustice has plainly resulted from it to the party complaining of it.

A covenantor in a warranty which did not run with the land is a competent witness, without a release, in favor of a purchaser from his vendee against an adverse claimant. If the warranty was such as did run with the land, or was equitably available by the purchaser, a proper release would qualify the covenantor as a witness in his behalf.

The appraisement law (Hart. Digest, arts. 1276, 1340) requires, in plain terms, that the appraisement should be made on the day of sale; and it is not optional with judicial or ministerial officers to disregard its directions in this respect.

Where, under an execution to which the appraisement law was applicable, the sheriff, previous to the day of sale, appraised the land levied on, but no appraisement was made on the sale day, his sale was an irregular or erroneous execution of the process which constituted his authority to sell. The sale was not void; but it was such an irregular sale as might have been avoided.

NOTE.--Owen v. City of Navasota, 44 Tex., 517.

See this case as to the parties by and against whom, and in what manner, such an irregular sale could be avoided.

It seems that a sheriff's deed cannot, on account of irregularity in his sale, be invalidated collaterally in another suit, even though the plaintiff in the execution, under which the sale was made, be a party to such suit.

NOTE.--Riddle v. Bush, post, 675; Cravans v. Wilson, 35 Tex., 52;Boggess v. Howard, 40 Tex., 153;Owen v. City of Navasota, 44 Tex., 517;Cavanaugh v. Peterson, 47 Tex., 197.

If the defendant, in an action of trespass to try title, have an equitable right as against the plaintiff, to avoid a sheriff's deed for irregularities in the sale, he cannot obtain such relief under his plea of “not guilty;” but must invoke it by proper pleadings, setting forth the facts specially, and impleading all proper parties. The plea of “not guilty” to a suit of trespass to try title admits such defenses only as are applicable to that form of action.

See this case for a consideration of the general principles applicable to irregularities in sales by officers under final process, and for a review of authorities pertinent thereto.

Although, as a general rule, a judgment and execution attach only to such interest as the defendant in execution has in the property, yet, by force of the registration laws of this state, it seems that a bona fide purchaser at sheriff's sale, without notice of an unrecorded conveyance made by the defendant in execution before the rendition of the judgment, takes the property as against the unrecorded deed.

NOTE.--Orme v. Roberts, 33 Tex., 768;Price v. Cole, 35 Tex., 461. The lien of a judgment creditor is superior to an unrecorded deed made by the defendant. (Grace v. Wade, 45 Tex., 522;Border v. McRae, 46 Tex., 396;Cavanaugh v. Peterson, 47 Tex., 197;Linn v. Le Compte, 47 Tex., 440;Taylor v. Harrison, 47 Tex., 454.)

But the registration acts are designed for the protection of bona fide purchasers only, and the courts will not permit them to be perverted into the means of perpetrating frauds. A subsequent purchaser, having notice of a prior unrecorded deed, can claim no benefit from the omission to record it.

To constitute a person a bona fide purchaser within the meaning of the statute, he must, upon the faith of the purchase of the property, have advanced for it a valuable consideration. If he was a creditor antecedent to his purchase, and paid for the purchase by a credit on his demand, then, inasmuch as he has parted with no consideration on the faith of the purchase, he is not a bona fide purchaser within the meaning of the statute.

NOTE.--Orme v. Roberts, 33 Tex., 768;Farley v. McAlister, 39 Tex., 602.

See this case as to what class of creditors the statute embraces within its protection against unrecorded deeds; and how their rights, also, are affected by notice. General creditors, it seems, are not within the pale of the statute, but only such creditors as have acquired some character of lien on the property, for the protection of which the aid of the statute is invoked.

APPEAL from Lavaca. Tried below before the Hon. Fielding Jones.

Trespass to try title, brought by the appellant, Ayres, against Duprey, the appellee, to recover a half league and labor of land in Lavaca county. The petition was filed June 26, 1858, and, besides the usual allegations of a suit of trespass to try title, contained an averment that the defendant set up a pretended claim to the land, thereby casting a cloud upon the plaintiff's title, to his damage, etc. Besides the ordinary judgment, the prayer also asked a decree removing the clouds, etc.

The defendant demurred, and answered with a general denial and a plea of “not guilty.” By an amended answer, he alleged title in himself, which he deraigned, first, by patent to J. Benton Johnson, of date June 30, 1845; deed to Peter W. Gray, dated July 24, 1845, which contained a general warranty of title “to said Gray, his heirs, etc.;” and third, quit-claim deed from Gray to defendant, for a valuable consideration, dated March 8, 1850. Defendant prayed to be quieted in his possession as against the plaintiff, and for general relief.

The plaintiff also amended, alleging that he purchased the land at sheriff's sale on the 7th of September, 1847, as evidenced by deed on file; that he had the said deed duly recorded; that at the time of his said purchase he had no knowledge of the defendant's claim or title; that if the defendant had any claim or title, the same was concealed from the plaintiff, and the plaintiff had no knowledge of it until the 12th of November, 1855, when the defendant had his pretended deed recorded in Lavaca county; and plaintiff alleges that if the defendant purchased said land, he had forfeited all claims to it by his laches in not having the deed recorded as the law requires.

The case came to trial at the spring term, 1860. After reading in evidence the patent to J. Benton Johnson, the plaintiff introduced his deed from N. J. Ryan, sheriff of Lavaca county, dated May 27, 1848, and filed for record September 28, 1848. The facts relative to the sale, out of which the deed originated, were as follows: On the 5th of November, 1839, Timothy Pillsbury brought suit against J. Benton Johnson and H. N. Cleveland on their joint note for $797, and soon thereafter recovered judgment thereon. On the 5th of August, 1840, execution issued and was levied on land of the defendant, Johnson. On the 3d of November, 1840, the land was sold and J. Benton Johnson became the purchaser, who executed his “twelve months' bond” for the purchase money, with the appellant, Ayres, and N. Brookshire as his sureties. This bond became forfeited for non-payment, and in 1846 an alias pluries execution issued from it, and was levied upon land of Johnson. This land failing to bring the full amount of the execution, another writ, with appraisement, issued on the 10th of July, 1847, and was levied upon the half league and labor in controversy, as the property of J. Benton Johnson. At the sale of this latter tract, on the 7th of September, 1847, the appellant, David Ayres, became the purchaser for the sum of $386.92.

The appraisement of the land, set out in the statement of facts, is as follows: “We, the undersigned appraisers, value the above named tract of land at three hundred and 98 dollars 52, or eighteen cents per acre. In witness whereof, we hereunto subscribed our names and affixed seals, this 19th day of July, 1847. (Here appear the names and seals of the appraisers, followed by the sheriff's certificate, viz.:) ‘Sworn to and subscribed before me day and date above written.

N. J. RYAN,

Sheriff Lavaca County.' 'DD'

The plaintiff offered the deposition of N. J. Ryan, “to prove that the land was legally sold, and that the appraisement was made regular, and to take effect on the day of sale.” The defendant objected, for the reason that the appraisement was in writing, and had been filed in the case; and the court, sustaining the objection, excluded the deposition; to which the plaintiff excepted.

The plaintiff also read in evidence the record of the district court of Austin county, in the case of Pillsbury against Johnson and others, the executions, returns, etc.

The defendant introduced the patent to J. Benton Johnson, and then read the deed from Johnson to P. W. Gray, of July...