Donnebaum v. Tinsley

• Decision Date: 08 March 1881
• Docket Number: Case No. 1188.
• Citation: 54 Tex. 362
• Parties: JOS. DONNEBAUM v. MARY L. AND I. H. TINSLEY.
• Court: Texas Supreme Court

54 Tex. 362

JOS. DONNEBAUM

v.MARY L. AND I. H. TINSLEY.

Case No. 1188.

Supreme Court of Texas.

Mar. 8, 1881.

APPEAL from Brazoria. Tried below before the Hon. W. H. Burkhart.

Suit in trespass to try title, brought by appellant on October 13, 1879, against appellees, for the recovery of 150 acres of land. The land was described by metes and bounds in the petition. Donnebaum claimed title under a deed from a constable of Brazoria county, by whom the land was levied on and sold as the property of Tinsley, on the 2d of July, 1878, to satisfy an execution issued by a justice of the peace, on the 8th of June, 1878, in favor of Wm. F. Wilson against I. H. Tinsley, at which sale he became the purchaser. He averred that Mary Tinsley, wife of I. H. Tinsley, claimed the land by virtue of a deed of gift of all his property made to her by I. H. Tinsley, but that this debt was in existence when that deed was made, and that it was fraudulently made to delay creditors.

The defendants answered “not guilty,” and set up several irregularities alleged to have been committed by the constable in making the sale. They aver that when the constable made the sale the judgment upon which the execution issued had been fully paid.

The cause was tried by the judge, who rendered judgment for defendants, and from that judgment, a motion for a new trial being overruled, this appeal is prosecuted.

The errors assigned embrace, in effect, but one proposition, viz., that the judgment is unsupported by the testimony and should have been for the plaintiff.

Upon the trial, in support of his title the plaintiff introduced--

1. A copy of a judgment of a justice of the peace in favor of Wm F. Wilson against the defendant, I. H. Tinsley, for $20.14, March 2, 1878, and costs, with an entry by the justice: “Execution issued June 8, 1878.”

2. An affidavit of the loss of that execution.

3. The constable proved that he sold the land under the execution of June 8, 1878, and that the sale was regular.

4. An execution on the same judgment was issued April 10, 1878, upon which is indorsed a levy on 150 acres of land out of a tract known as the Tinsley plantation, part of the I. E. Austin survey, describing it further by metes and bounds. The levy purports to have been made on the 11th of April, 1878. The return of the constable, indorsed upon the writ, proceeds to say that he advertised the land to be sold upon the first Tuesday of July, and that on that day he sold it according to law to Joseph Donnebaum for $35, and that he brought the money into court to be paid over as the law directs.

5. The constable testified that by mistake he made his return of the sale on the execution issued, on the 10th of April. That in fact the execution of April 10 was held up, no levy being made under it. That his return was made out on a separate piece of paper, and attached to it by mistake.

6. The deed executed by the constable to Donnebaum was read. That deed recites that by virtue of the execution of the 8th of June he “did, on the 9th day of June, 1878, levy on all the right, title and interest which the defendant on that day had in and to the premises hereafter described, etc., and that on the 2d day of July he sold said premises to Joseph Donnebaum,” etc.; and then proceeds to convey the land to him, describing it as follows: One hundred and fifty acres of land out of the I. E. Austin grant, on the west side of the Brazos river, seven or eight miles above the town of Columbia.

7. It was shown that the debt of Tinsley to Wilson was contracted before the conveyance by Tinsley to his wife, under which the defendants claimed, and that that deed conveyed all Tinsley's property, lands and stock. The defendants introduced a deed of gift from Tinsley to his wife, which he swore embraced all his property.

They also produced a receipt, signed by the constable, for the amount of the judgment of Wilson v. Tinsley. And Tinsley testified that he had never been called upon to point out property upon the execution.

Plaintiff proved that the receipt was made out, but never delivered by the constable, the money not having been paid. That it was left in the hands of the justice to be delivered to Tinsley when he paid the money, but that he never had paid it, and it had never been delivered to him. And Tinsley, though testifying, said nothing about how it came into his possession.

Thomas G. Masterson and Duff & Wilson, for appellants.

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