Bailey's Adm'r v. White

• Decision Date: 01 January 1854
• Citation: 13 Tex. 114
• Parties: BAILEY'S ADM'R v. WHITE.
• Court: Texas Supreme Court

13 Tex. 114

BAILEY'S ADM'R

v.WHITE.

Supreme Court of Texas.

1854.

Appeal from Washington. Action of trespass to try title by the appellant against the appellee, commenced August 4th, 1852. The judgment under which the land was sold was against a partnership of which the plaintiff's intestate was a member, and the execution was issued and the levy and sale made after the death of said intestate. The sale was made in 1845, and the defendants had been in possession ever since. Before the commencement of the suit plaintiff offered to refer the question of improvements. Letters of administration were issued to plaintiff in 1850. A jury was waived. The other facts will be found in the opinion of the Court.

J. Sayles, for appellant. It is insisted by appellant that he was entitled to a judgment for the lot and damages for the rent.

The execution, levy, and sale were null and void,

1st. Because no execution was issued within one year after rendition of judgment (Shepard v. Bailleul, 3 Tex. R., 26) when this identical execution was before the Court.

2d. Because the execution was issued, levied, and the land sold after the death of Bailey. (Conkrite v. Hart, 10 Tex. R., 140.) The defendant could not hold under the statute of limitations because he purchased and went into possession after the death of Bailey.

The defendant sought to bring this case within the principle laid down in the case of Howard v. North, 5 Tex. R., 290. But there is a striking difference between that case and this.

Here Bailey was dead before execution issued; the judgment was not a subsisting claim against his estate, but survived against the partners. The creditor could not resort to his estate until the partnership property was exhausted.

It would be establishing a dangerous principle to assert that a valid sale could be made of the property of a deceased person under a void execution simply on the ground that a just debt was discharged. If such a principle were admitted the laws governing the settlement of successions would amount to nothing.

There is no pretense that the purchaser was ignorant of the death of Bailey. If, in any case, the rule of caveat emptor should apply, it should apply when the estates of dead men are concerned. Under the principles of the case of Howard v. North the judgment of the Court below is erroneous.

If, upon principles of equity, the defendant is entitled to his purchase money, interest, and pay for his improvements, he should do equity, and should pay the value of the use of the premises while in his possession.

The rent was disallowed under Art. 3234, Hart. Dig. It was not proven by competent testimony that the plaintiff had not paid the taxes, only that the land had not been rendered for taxes in Washington. There was only a period of two years (1848-9) when taxes were required to be paid in the county. During the other years it might have been paid either at the Comptroller's office or in the county where the party resided. Damages for rent were claimed in the petition, and before commencement of suit the plaintiff offered to refer the question of improvements.

However that may be, the defendant cannot, in good conscience, insist upon legal rights to defeat the recovery of rent, when he has no legal right to the land, when his defense is alone equitable. The rent was proven to be worth $150 per annum. He was in possession nine and a half years, which would entitle plaintiff to the amount of $1,425, only a few dollars less than the sum he was decreed to pay.

J. Willie, for appellee.

LIPSCOMB, J.

This suit was brought for a lot in the town of Washington and to recover damages. The plaintiff proved his title. The defendant set up in his defense a purchase at Sheriff's sale under an execution sued out on a valid judgment against plaintiff's intestate, and proved the payment of the money and the Sheriff's deed; that the money paid was applied to the satisfaction of the judgment against plaintiffs intestate; that he had made large improvements, valued at eight hundred and fifty dollars, and had paid all the taxes assessed on the said lot ever since his purchase thereof. It was admitted that the execution on which the lot was sold was not a valid one, there having been a failure of due diligence in suing out the first execution and then regularly keeping the judgment alive by alias executions. It was, however, shown that the defendants in the judgment had prayed a writ of error to the Supreme Court of the Republic, and given bond for the prosecution thereof, but had failed to take the case up for revision. The parties wavied a jury and submitted the case to the Judge.

It was adjudged that plaintiff recover the lot sued for; that the defendant recover the amount paid by him, with interest from the date of its payment, and the further sum of eight hundred and fifty dollars, the value of the improvements made by him, making the aggregate sum of fourteen hundred and thirty-eight dollars and eighty-seven cents; that no writ of possession should issue until the plaintiff had paid the money into Court for the benefit of the defendant, and that if plaintiff failed to pay the money within twelve months the title to be vested in the defendant. The plaintiff appealed, and has assigned for error,

That the Court erred in refusing to allow the pay for the rent of the lot sued for, as proven on the trial.

That the Court erred in requiring the plaintiff to pay the defendant the sum of $333.33, the purchase money, with interest thereon.

That the Court erred in requiring the plaintiff to pay the defendant the sum of eight hundred and fifty dollars for the improvements made on the lot sued for.

The Court erred in ordering that a writ of possession should not issue...