Blakey v. Perry

• Decision Date: 03 December 1896
• Citation: 38 S.W. 374
• Parties: BLAKEY v. PERRY.
• Court: Texas Court of Appeals

38 S.W. 374

BLAKEY v. PERRY.

Court of Civil Appeals of Texas.

December 3, 1896.

Appeal from district court, Cass county; John L. Sheppard, Judge.

Trespass to try title by Mrs. S. R. Perry against Levi Blakey. There was a judgment for plaintiff, and defendant appeals. Reversed.

For former report, see 23 S. W. 804.

Schluter & Allday, for appellant. Todd & Todd, for appellee.

WILLIAMS, J.

A former judgment in favor of appellant was reversed by the court of civil appeals for the Fifth district, and the cause was remanded for a new trial. Perry v. Blakey, 23 S. W. 805. At the trial which resulted in the judgment from which this appeal is prosecuted, the same evidence was introduced as that upon which the former appeal was determined, and, in addition thereto, a deed was introduced from W. S. Todd, administrator of the estate of J. H. Johnson, deceased, to Jephtha D. Crawford and James D. Todd, of date January 20, 1852, conveying other lands of said estate. This deed recited that the lands conveyed by it had been sold by the administrator on the first Tuesday in September, 1851, in pursuance of the former orders of sale recited in the report of the former decision; that Todd and Crawford had become the purchasers, and that such sale had been confirmed at the November term, 1851. The court, in the decision referred to, held that the order of confirmation of November, 1851, might, in the absence of all evidence of any other sale, be presumed to refer to the sale recited in the deed under which plaintiff claims the land in controversy. Hence the state of the case is different in this important particular from that upon which the court then passed. The deed under which plaintiff claims is dated May, 1850, recites a sale made on the first Tuesday in April, 1850, and an order of confirmation by the probate court at its April term, 1850. The only order of confirmation produced by plaintiff is that of November, 1851, which mentions the sale confirmed as a "resale," and orders the administrator to proceed "against defaulters at the first sale reported for the deficit in the amount of sale," etc., and describes no land whatever. From this it is evident that there had been two sales made and reported, and that some of the purchasers at the first sale had not complied with the terms of sale, and hence took no title. It is only the resale that is confirmed. What lands were sold thereat there is nothing in the proceedings to show. The deed offered by defendant at the last trial shows that some of the lands resold, not including that in controversy, were purchased by Jephtha D. Crawford, and this explains the mention of his name in the order. With the case standing thus, we do not see how it can now be assumed that that order is an express confirmation...