Cook v. Brown

• Decision Date: 01 January 1876
• Citation: Cook v. Brown, 45 Tex. 73 (Tex. 1876)
• Parties: MOSES J. COOK ET AL. v. JOHN BROWN.
• Court: Texas Supreme Court

45 Tex. 73

MOSES J. COOK ET AL.

v.JOHN BROWN.

Supreme Court of Texas.

1876.

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

The facts are sufficiently shown in the opinion.

Moore & Ledbetter, for the appellants.--This was an action of trespass to try title. It is shown by the record that the appellants were in possession of the land, claiming the same under deed from Major Cook.

The plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of defendant's.

The plaintiff claims the land in controversy under a sheriff's deed dated the 5th day of April, 1870, made under an order of sale issued from the District Court of Fayette county, upon a judgment of said court, foreclosing the vendor's lien on said land.

It is admitted that the land was not sold in lots of not less than ten nor more than forty acres, but that it was sold in one tract.

It is submitted that this sale, being made after the adoption of the late Constitution of Texas, is in contravention of the plain provision of said instrument, (see sec. 40 Const.,) and that no title passed by said sale.

That this sale was made under the decree of a court, we think there can be no doubt; the order under which the sale was made pointed out the particular tract to be sold, and no other property could be levied upon by the sheriff until this particular land was sold. The mere fact that the sheriff is ordered to sell as under execution, we submit, does not relieve the sale of its constitutional objection, for we think this has reference to the manner of advertisement, the place, and time of sale, &c.

The Constitution of 1869, sec. 9, art. 5, provides that the District Court should have exclusive jurisdiction for probate of wills, &c.; and long before there was any legislation on this clause putting the same into operation, the District Courts everywhere probated wills, appointed administrators, guardians, &c.

Section 3, article 5, also provides that no appeal in criminal cases shall be allowed, unless one of the supreme judges allows the same, &c.; and before any legislation on this subject, appeals were perfected in this mode.

Timmons & Brown, for appellee, cited Riddle v. Bush, 27 Tex., 675;Watson v. Hopkins, 27 Tex., 637;Ayres v. Dupree, 27 Tex., 593, and argued that the provision of the Constitution of 1869 concerning the sales of lands under decrees of courts required legislation to put it into practical operation. Such legislation was not had until the act of August 13, 1870, while the sale in controversy was made under a decree rendered 13th January, 1870.

GOULD, ASSOCIATE JUSTICE.

The plaintiff claimed title by virtue of a judgment in the District Court of Fayette county, on January 13, 1870, foreclosing a vendor's lien in favor of plaintiff's intestate against one Major Cook, and by virtue of a sheriff's sale under said judgment or decree, had on April 5, 1870. The defendant in the present suit, who was not a party to the suit of foreclosure, claims that the sheriff's sale was invalid and the sheriff's deed void, because the sale was not made in accordance with the requirements of sec. 40 art. 12 of the Constitution as then in force. That section is as follows:

“All sales of landed property, made under decrees of courts in this State, shall be offered to bidders in lots of not less than ten nor more than forty acres,...