Day v. Johnson

• Decision Date: 10 January 1903
• Citation: 72 S.W. 426
• Parties: DAY et al. v. JOHNSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 426

DAY et al. v. JOHNSON.^*

Court of Civil Appeals of Texas.

January 10, 1903.

Appeal and error from district court, Franklin county; J. M. Talbot, Judge.

Action by H. Foster Johnson against R. A. Day and others. From a judgment in favor of plaintiff, the defendant Day brings error, and defendant W. H. C. Davenport appeals. Reversed.

R. E. Davenport, Wilkins, Vinson & Moore, and Glass, Estes & King, for plaintiff in error. J. F. Jones, P. A. Turner, Chas. S. Todd, and R. T. Wilkinson, for defendant in error.

TEMPLETON, J.

On March 26, 1883, W. A. Pogue recovered judgment in the justice's court of Precinct No. 1 of Franklin county against George Foster Johnson for the sum of $94.83, with 12 per cent. interest from that date, and all costs, amounting to $2.90. On February 6, 1884, execution was issued on said judgment, and on April 9, 1884, the said writ was levied on a tract of land described as follows: "440 acres of land belonging to Foster Johnson, situated on Denton creek, about 2½ miles west of Mt. Vernon, being a tract of land willed to Foster Johnson by his father, J. F. Johnson." There was a sale under the levy on May 6, 1884; Davenport & Son, a firm composed of W. H. C. Davenport and C. K. Davenport, becoming the purchasers on their bid of $100. The sheriff's deed to Davenport & Son described 240 acres of the William Brown survey by metes and bounds as being the land sold under the writ. The execution was made returnable in 90 days, instead of 60 days, as required by law, and the sale took place more than 60 days after the issuance of the writ. The land in controversy was the separate property of George Foster Johnson, having been devised to him by his father. George Foster Johnson, together with his wife and minor son, Harold Foster Johnson, resided for a time on the land as their homestead. Johnson and his wife were divorced in December, 1883, the custody of the said minor and the use of the said land for homestead purposes being awarded to the wife. It seems that she at once married again, and moved off the premises. The land, at the time of the sale, was worth many times the amount bid therefor by Davenport & Son. George Foster Johnson died intestate in June, 1884, leaving his said minor son as his only child and sole heir. He owned no property except said land. On December 11, 1885, J. H. King, as next friend of Harold Foster Johnson, filed in the district court of Franklin county a petition against Davenport & Son to set aside the said execution sale, and to cancel the said sheriff's deed. The facts above stated were alleged, and it was charged that the irregularities attending the sale rendered the same voidable, if not void, and that the said deed constituted a cloud on the minor's title, who, it was stated, was in actual possession of the premises. It was further charged that Davenport had cut and removed from the land timber of the value of $1,250, and the plaintiff sought to recover that sum. There was a tender of the amount paid by Davenport & Son for the land, with legal interest, in case the court should hold that there could be no recovery without such payment. Harold Foster Johnson was six years and nine months old at the date of the institution of said suit, and had no legal guardian. Davenport & Son answered, denying generally the allegations of the petition, and pleading specially that they acquired title to the said land by virtue of the said levy and the sale thereunder. They set up no claim of lien against the land, but rested their defense on their claim of title. On September 17, 1887, the said King, as next friend for said minor, entered into a written agreement with Davenport & Son, by the terms of which judgment was to be entered in said cause in favor of the minor for the recovery of the land in controversy and in favor of Davenport & Son for $209.25, and the same was declared to be a lien on the said land, and it was provided that, if said sum was not paid to Davenport & Son by the 1st day of July, 1888, an order of sale should be issued, and the land sold to satisfy such lien. The said agreement was filed in said cause, and on November 14, 1887, at a regular term of the court in which the suit was pending, the case was called for trial, and the judge of the court, at the instance of the parties, entered on his docket an order which reads thus: "November 14, 1887. Judgment as per agreement filed." The order appears to have been entered without any evidence being heard and upon the naked statement of the attorneys engaged in the cause that the agreement had been made, and that such order was desired. Judgment was entered in accordance with said agreement on the minutes of the court, the agreement being inserted in full. The judgment did not recite that the court heard any evidence, or was informed of the nature and terms of the agreement, and appeared to be based solely on the agreement and the order of the court directing judgment accordingly. The minutes of that term of the court were signed by the judge presiding, and recite that the same were read and approved by the court. The said minor not having paid the sum adjudged against him, order of sale was, on July 10, 1888, issued on said judgment, and at the sale thereunder, which occurred on the first Tuesday in August following, Davenport & Son again became the purchasers on a bid made by them of $225, and they received the sheriff's deed, which was promptly recorded. In 1896, W. H. C. Davenport conveyed his interest in the land by warranty deed to C. K. Davenport, who, in 1899, by like conveyance, sold and transferred the land to R. A. Day in consideration of $1,250 cash. In March, 1900, Harold Foster Johnson arrived at his majority, and soon thereafter instituted this suit against the Davenports and Day....