Ballard v. Anderson

• Decision Date: 01 January 1857
• Citation: 18 Tex. 377
• Parties: J. J. BALLARD AND ANOTHER v. RICHARD J. AND ANN ANDERSON.
• Court: Texas Supreme Court

18 Tex. 377

J. J. BALLARD AND ANOTHER

v.RICHARD J. AND ANN ANDERSON.

Supreme Court of Texas.

1857.

See this case as to the necessity of making an incumbrancer a party, where the petition alleges that the incumbrance has since been paid; and, whether an objection for want of proper parties can be taken by general demurrer, or will be taken by the court, of its own motion.

In cases of this description (suit by purchaser at sheriff sale to recover the property from the defendant in execution and his wife), and where a party attempts to set out his title, the averments must be positive; nothing should be left to argument or inference. It should have been made manifest and conclusive by averment, that the land was subject to the execution against the husband.

The opinion in this case suggests a doubt whether the purchaser of real estate who gives a mortgage for the whole of the purchase money, has such interest in the land as can be taken in execution. 11 Tex. 597;22 Tex. 338;26 Tex. 634;27 Tex. 471.

Where the purchaser at sheriff sale sued the defendant in execution and his wife to recover the property purchased, and have it partitioned from the homestead, and the conclusion from the allegations of the petitions was, that all the property, being five hundred and seventy acres of land, one hundred and fifty head of cattle, and twelve head of horses, worth, say $6,000, was sold in one mass to the highest and best bidder, for the sum of fifty-one dollars, subject to a mortgage for fifteen hundred dollars, it was held on general demurrer, that the sale was void. It should, perhaps, be stated that there was a question of homestead as to two hundred acres of the land.

Appeal from Lavaca. Sent to Galveston by consent. Tried below before the Hon. Fielding Jones.

Petition filed August 20th, 1856, as follows: Your petitioners, Joseph J. Ballard and Robert M. Tevis, both resident citizens of the county and state aforesaid, would respectfully represent unto your honor, that on or about the 31st of May, 1855, Richard J. Anderson and Ann Anderson, his wife, made, executed and delivered unto C. Ballard, of the said county and state, their certain obligation in writing, commonly called a deed of trust, which said instrument of writing is now recorded in the county clerk's office of said county of Lavaca, the original of which, or a certified copy thereof, is in substance as follows:

Here followed a copy of the deed of trust, or mortgage, with power to sell, of five hundred and seventy-one acres of land in Lavaca county, on which the defendants then resided, one hundred and forty head of cattle branded J. H., twelve head of horses, and all the crop of corn and cotton then growing, etc., to secure a note which C. Ballard then held on them for the sum of fifteen hundred and seventy-nine dollars and ten cents, “for the purchase money of the land hereby conveyed, due to Silas Bennett and Stephen D. Board, and assigned to said Ballard, and for a claim against us for family necessaries furnished us by said Ballard, all of which is included in said note, which note is this day executed, bearing interest at ten per cent., and due January 1st, 1856.”

The deed of trust authorized either C. Ballard, or his attorney, L. P. Harris, to sell in case the note was not paid at maturity. The petition then continued as follows: Petitioners further allege that, either in the fall of 1855, or spring of 1856, the said Ballard received of said Anderson and wife the crop of cotton raised on said land for the year 1855, amounting to about ten bales, worth five hundred dollars, which the said Ballard received and should have placed as a credit on said note; that at the October term, 1855, of the district court of Lavaca county, Glass & Theobald recovered a judgment against the said Richard J. Anderson for the sum of one hundred and forty-nine dollars and ninety-five cents, interest and cost, and No. 295 on the docket of said court; that on the 7th of November, 1855, a fi. fa. was issued against said Anderson to the sheriff of said county, and, upon said Anderson failing to point out any property to levy upon, the said fi. fa. was levied by said sheriff on the following property as the property of defendant: five hundred and seventy-one acres of land in the county of Lavaca on the waters of the Lavaca river, also one hundred and forty head of cattle, branded J. H., also twelve head of horses, subject to a mortgage held by C. Ballard, and said execution was returned, showing that said property was advertised and offered for sale, but there being no bidders, was not sold; that on the 26th of April, 1856, the clerk of the district court of said county of Lavaca issued a venditioni exponas to the sheriff of said county, commanding him to advertise the above described property, levied upon in the said fi. fa. and returned “not sold,” according to law, and sell the same, subject to the mortgage aforesaid, in satisfaction of the aforesaid judgment and costs and fees for collecting the same. They further state that the said sheriff did as directed by said vend. exp., advertise said property, according to law, and did on the first Tuesday in July, it being the first day of July, under said order and advertisement, proceed to sell said property, subject to said mortgage, aforesaid, before the courthouse door in the town of Halletsville, to satisfy said judgment and costs, and to the highest bidder, and Robert M. Tevis, one of the petitioners, being the highest and best bidder for the sum of fifty-one dollars, and no one bidding more, became the purchaser of said property, subject to said mortgage; and the said Tevis, having paid to John McKinney, the sheriff as aforesaid, the said sum of fifty-one dollars, the said McKinney, sheriff, made, executed and delivered to said Tevis, his deed, as sheriff, to the aforesaid described property, which deed is now on file in the office of the county clerk of Lavaca county, and will, or a certified copy thereof, be shown to the court on the trial hereof. That on or about the--day of July, 1856, the said R. J. Anderson paid to the said Ballard the balance on said note, as set forth in said mortgage or deed of trust, and sometime after the purchase of said property by said Tevis, under said vend. exp., the said Ballard acknowledged the said mortgage or deed of trust satisfied in full by said Anderson.

That on or about the 7th day of July, 1856, the said Tevis made, executed and delivered to Joseph J. Ballard a deed to one-half of his interest in the said described property, purchased by him under said vend. exp., which deed will be shown to the court on the trial hereof, whereby said Ballard became equally interested in said property with said Tevis.

Your petitioners aver that they are now the legal owners and entitled to the possession of the aforesaid described property; that the said Anderson and wife are in the possession of said property, and wrongfully hold possession of the same and refuse to deliver the same to your petitioners, although often requested so to do, to the great damage of your petitioners, to wit: ten thousand dollars. Wherefore they ask that the said R. J. and Ann Anderson be cited to appear at the next term of your honorable court, as the law directs, to answer this petition, and on a final hearing hereof, they ask for judgment against the said R. J. and Ann Anderson for the possession and delivery of the said property, or its value, to wit: the said tract of five hundred and seventy-one acres, or the value, $5,710; one hundred and forty head of cattle, or their value, $980; twelve head of horses, or their value, $800, and ask the court, upon the refusal of said Anderson and wife to deliver up said property to your petitioners, for a decree to sell the same in satisfaction of said debt, and for judgment for all costs, etc.

The return on the venditioni exponas was as follows: Came to hand April 28th, 1856, John McKinney, sheriff, L. C. The aforesaid property, as set forth and described in said vend. exp., was, on the first Tuesday in July, 1856, after being legally advertised according to law, sold, subject to a mortgage held by C. Ballard, to the highest bidder, at the court-house door in Hallettsville, for cash, to satisfy said vend. exp., and, R. M. Tevis being the highest and best bidder at the sum of fifty-one dollars, and no one bidding more, said property was duly struck off to said Tevis. John McKinney, sheriff, Lavaca county.

The defendants filed a general demurrer and several pleas in avoidance. The defendants' demurrer having been sustained, plaintiffs amended their petition as follows:

The...