Bendy v. W. T. Carter & Bros.

• Decision Date: 18 March 1925
• Docket Number: (No. 466-4002)
• Citation: 269 S.W. 1037
• Parties: BENDY v. W. T. CARTER & BROS. et al.
• Court: Texas Supreme Court

269 S.W. 1037

BENDY v. W. T. CARTER & BROS. et al.

(No. 466-4002)

Commission of Appeals of Texas, Section B.

March 18, 1925.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by H. W. Bendy against W. T. Carter & Bros. and others. From the judgment of the Court of Civil Appeals (251 S. W. 265) reversing a judgment in his favor and remanding case, plaintiff brings error. Judgment affirmed.

J. A. Mooney, of Woodville, and Louis, Campbell & Nicholson, of Houston, for plaintiff in error.

Coleman & Lowe and J. E. Wheat, all of Woodville, Martin Dies, of Orange, S. H. German, of Austin, and Baker, Botts, Parker & Garwood, of Houston, for defendants in error.

STAYTON, J.

The defendants in this action of trespass to try title offered in evidence a sheriff's deed under which they claim. Over their opponents' objection, the district court allowed it to be introduced, but later, on motion, at the conclusion of the testimony, rejected it. The decision of the case depended upon this deed. Whether it was properly ruled out is the question in the application for writ of error. The Court of Civil Appeals held that the trial court erred. 251 S. W. 265.

There was in evidence an admissible copy of the judgment, and one of the executions upon it which bore a return that showed a levy upon the land in controversy, as well as other land, and legal advertisement but insufficient time to complete the sale within the term of the writ. The proffered deed was undated. It was evidently executed by the sheriff, who made the levy on a day subsequent to his going out of office but prior to 1874. This circumstance is one of the points in the case. At the time of trial the deed had been of record for 47 years. In it were recitals of the judgment, the execution and its return, the issuance of venditioni exponas, legal advertisement, and sale to defendants' predecessor in title. The clerk's execution docket contained a record of the execution, and a subsequent one for the same amount five years later than the deed, but did not show either of the returns, nor anything regarding the writ of venditioni exponas. Whether the deed furnished evidence that was relevant to the existence of the latter is another point in the case.

The defendants concede that proof of a writ of venditioni exponas, or of an execution effective at the date of sale, was necessary as a basis of their offer, but rely in that respect upon the recitals in the deed itself and circumstances in evidence which, where additional to those just stated, are now to be mentioned. What will be noted is represented either by specific evidence or by fair inferences from it and is taken largely from the conclusions of the Court of Civil Appeals and statements of evidence by defendants. Except where otherwise mentioned, it is not disputed by plaintiff.

After the deed was recorded and while the parties to the transaction were still alive in the rural community where it occurred, defendant in execution did not assert claim to the land; and subsequent to his death neither did his heirs nor his legal representatives, including plaintiff. The period of nonclaim was 47 years. At the end of that time this suit was filed. None of these persons rendered the land for taxes or paid taxes on it. Although some 15 creditors of defendant in execution had judgments against him and took out executions upon them, no levy was made on any of the land mentioned in the deed in controversy except the one described in it. And while he was still alive a partition of some of the property occurred in the district court wherein his vendee through this deed was apparently viewed by that court as owner of one of the undivided shares to the extent that he was awarded one of the divided parcels. And it may be added, in deference to a contrary contention of plaintiff, that the return on the execution and the description in the sheriff's deed, when interpreted in the light of the partition suit, bear out this view that the levy and sale were made as to an undivided acreage. After the death of the defendant in execution, three sworn inventories in his estate which was pending in the same county, one of them in a year, one by plaintiff in two years, and another by him in five years, purported to cover all of the property of the estate; but, though one of them listed nearby land, none of them included the premises covered by the sheriff's deed; and the same was true of the partition of this estate occurring in the sixth year. The heirs were so situated that they would reasonably have known of any claim of the estate against this land. The sheriff's deed was acknowledged before the district clerk of the same county, who had been a joint defendant in execution with plaintiff's intestate. The vendees of the purchaser at the sale have, for 39 years, under this recorded deed, been openly and notoriously acting as proprietors of it, conveying it and their numerous vendees conveying it, and the owners under this line of title rendering it for taxes and, for all except one space of 2 and another of 5 internal years, constantly paying taxes upon it. The family doctor of some of the heirs was one of these vendees. As to the failure of an entry of the writ of venditioni exponas on the execution docket, it appears that the record was negligently kept by the clerk. The papers in the case had been scattered; the petition was found among waste in a fireplace. Proper search among the files in which it should have been found failed to produce the writ. There was no ruling to the contrary in the district court; the sufficiency of the predicate was recognized there, and plaintiff's present contention as to the extent of the search for the writ is only made after the trial. All the parties to the original transaction are dead.

Under these facts, the sheriff's deed was admissible in evidence. It was an ancient instrument. It had long been of record and was in possession of those claiming under it, thus coming from proper custody. Holmes v. Coryell, 58 Tex. 686. The better evidence, that it suggested could not be found, was in all reason unprocurable.

It was apparently free from suspicion. No just suspicion arises from the fact that it was undated and was presumably executed after the sheriff went out of office. The only doubt aroused by this...