Burns v. Ledbetter

• Decision Date: 08 March 1881
• Docket Number: Case No. 642.
• Citation: 54 Tex. 374
• Parties: BURNS ET AL. v. LEDBETTER.
• Court: Texas Supreme Court

54 Tex. 374

BURNS ET AL.

v.LEDBETTER.

Case No. 642.

Supreme Court of Texas.

Mar. 8, 1881.

APPEAL from Fayette. Tried below before the Hon. J. B. McFarland.

Suit in trespass to try title, brought by the appellant, Ledbetter, under statute authorizing the plaintiff to bring a second suit within twelve months against the appellees, Burns and wife, to recover, or quiet the title to, certain town lots in the town of La Grange; and at the same time, by an injunction, to restrain them from using and causing to be executed, a writ of restitution, awarded them by a former judgment in a suit by the same plaintiff against the same defendants, for the same property. On the 8th of November, 1875, the cause was tried in the district court of Fayette county, when Ledbetter appealed to this court.

Both parties claimed title to the land in question from a common source, the estate of the Doxeys. In 1868, at the October term of the Fayette county probate court, the administrator of Doxey's estates was ordered to make sale of the property in controversy to pay debts against said estates. The property was regularly sold by the administrator on the first Tuesday in December, 1868, by virtue of the order, and purchased by the appellees, Burns and wife, the deed being made to Mrs. Adelia Burns. By the terms of the sale, the purchaser was required to give his note with personal security for the purchase money, and a mortgage on the property to secure its payment. This being done, and the purchase money still remaining unpaid, suit was instituted for its recovery in the district court of Fayette county, and on the 30th of April, 1873, judgment was rendered in favor of Doxey's administrator, against all the makers of the note (except the married woman, Mrs. Burns), for the amount due on it, with a decree foreclosing the mortgage lien and ordering a sale by the sheriff of the property in question for its payment. From that judgment and decree the defendants gave notice of appeal to the supreme court, and gave bond for costs and damages under article 1493, Pasch. Dig.

The judgment in that case was affirmed by this court on the 26th day of March, 1875.

Notwithstanding the filing of the appeal bond, the plaintiff, Doxey's administrator, on the 6th of June, 1873, sued out an execution, or order of sale based on the judgment and decree, and placed the same in the hands of the sheriff of Fayette county, who, on the same day, as ordered by it, levied it on the property in controversy. On the first Tuesday in July, 1873, the sheriff sold the property according to the directions of the order, when the plaintiff in this suit, Ledbetter, became the purchaser for the sum of $1,100, and received his sheriff's deed therefor. The defendants then being in possession of the property, Ledbetter instituted his suit (an action of trespass to try title) against them, and obtained possession by virtue of a writ of sequestration and a replevin bond. This suit was tried on the 7th of November, 1873, in the district court of Fayette county, when the verdict and judgment being adverse to Ledbetter, he appealed to the supreme court, where the cause was affirmed against him, on the 26th day of March, 1875. See Ledbetter v. Burns, 42 Tex., 508.

Ledbetter then instituted this his second suit of trespass to try title, and to restrain Burns and wife from suing out the writ of restitution awarded them in the affirmed judgment; and prayed in the alternative for judgment against Burns for the amount of money paid by him on the execution, and that he hold possession of the property until the amount is paid. And in the event the same is not paid within one year, that then they be barred of all right and he be invested with the title to the same. In this suit Ledbetter also asserted an additional title, which accrued as follows:

Pending the appeal of the first suit between these parties, the annual state and county taxes, levied and assessed against the property in controversy, for the years 1871 and 1872, being unpaid, the state of Texas and Fayette county instituted in the district court of that county a suit for their recovery, and to foreclose the tax lien on the property against all the parties to the present suit, and on the 21st of November, 1874, recovered a judgment against Burns and wife for the taxes due on the property, and all penalties and costs of suit, and a decree against all the defendants to the tax suit (being the plaintiff and defendant to this suit), foreclosing the tax lien, and condemning the property in controversy to be sold to pay the taxes, costs and penalties. On the 19th of December, 1874, an execution or order of sale was issued on the tax judgment, and placed in the hands of the sheriff of Fayette county, who, as directed by the order of sale, sold the property in controversy again to the appellant, Ledbetter, for the sum of $152.22, and made a deed conveying it to him.

On the 26th day of April, 1875, Burns and wife made a tender to Ledbetter of the amount he paid in the tax sale, and twenty per cent. interest thereon, for the redemption of the lots. This he refused to accept, and Burns and wife deposited the same with the clerk of the district court wherein the suit was pending, as a standing tender to Ledbetter.

The cause was tried and resulted in a verdict and judgment against Ledbetter for the lots, and in his favor against J. R. Burns for the money paid at the execution sale by him, but refusing to subrogate him. Both he and Burns appealed and assigned errors.

Timmons & Brown, for appellant.

J. B. Burns, for himself, assisted by Eldon Burns and Walde Burns.

WATTS, COMMISSIONER.

The appellant, Ledbetter, claims the lots in controversy, first, under the sheriff's sale made by virtue of the judgment, in favor of Doxey's administrators against Burns and wife, foreclosing the vendor's lien upon the same. Secondly, by and through the condemnation and sale of the lots for the taxes due thereon.

He purchased the lots at sheriff's sale under the Doxey judgment, after an appeal had been taken and perfected by Burns and wife, and while that appeal was pending. The bond given by Burns and wife to perfect this appeal was for costs and damages, and conditioned as prescribed by art. 1493, Pasch. Dig., then in force. That article is in substance, that if a party is not able to give a supersedeas bond, he may, nevertheless, appeal, by giving security for no more than the costs and damages of the appeal; and in such cases the judgment of the court below is made to operate as a lien upon all the property of the appellant. And it is further provided that the sheriff shall take possession of the personal property of the appellant, and hold the same or so much thereof as will be sufficient to satisfy the judgment of the appellate court, during the pendency of the appeal, unless the appellant should give bond with security to the sheriff for the forthcoming of the property.

It is contended by appellant that the appeal bond given by Burns and wife was not, in amount, sufficient to secure the costs and damages of appeal. That identical question was determined by the supreme court in the case of Ledbetter v. J. R. & Adelia Burns, 42 Tex., 508, and the bond held to be sufficient. The construction of the article cited above, contended for by appellant, appears to us untenable. It is not claimed that an appeal taken and perfected under it does not suspend the judgment or the power of sale thereunder; and that notwithstanding such an appeal has been perfected and is pending, that execution or order of sale may be issued by virtue of the judgment, and that a sale made thereunder of the appellant's property would vest title in the purchaser. The constitution conferred the right of appeal, and in the enactment of the statute under consideration, the legislature was providing for the mode and manner of the exercise of that right. The object and purpose of this provision was to enable the poor and unfortunate litigant the exercise of the right of appeal, trammelled with just such restrictions and no more, as are necessary in protecting the rights of the judgment creditor. Its spirit is that of protection to, and fostering care of, this class of citizens and litigants, with which the law-making power should ever be in sympathy. Its purpose was to confer rights and not to impose burdens; and to reach a correct construction of this provision, we must keep in view that such was the spirit and intention that actuated the legislature in passing the law.

Now if, as construed, an appeal perfected in this mode left the judgment creditor free to run executions or orders of sale, at his own pleasure, notwithstanding the pendency of such appeal, why did the legislature provide that the judgment should operate as a lien upon all the property of the appellant? Why provide that the sheriff should seize and hold his personal property pending the appeal?

Such a construction would give the judgment creditor the option, either to have the sheriff seize and hold with an iron hand all the property of his debtor, or at his whim or caprice, cause the same to be sacrificed at public sale, at any time during the pendency of the appeal. This, instead of conferring protection and benefits upon the poor and unfortunate, would be heaping burdens upon the already overburdened; and besides, imposing penalties upon the exercise of the constitutional right of appeal. Such was not the legislative intent. An appeal taken and perfected under that provision of the statute does suspend the power of sale while it is pending. We fully concur with the supreme court in Ledbetter v. Burns, 42 Tex., 508, when the identical question was before that court. And it was then decided that the appeal of Burns and wife, the same now under consideration, did operate a suspension of the power of sale, and that Ledbetter did not get title to the lots by reason of that sale and purchase. See Moore v....