Flanniken v. Neal

• Decision Date: 15 April 1887
• Citation: 4 S.W. 212
• Parties: FLANNIKEN and others v. NEAL and others.
• Court: Texas Supreme Court

4 S.W. 212

FLANNIKEN and others v. NEAL and others.

Supreme Court of Texas.

April 15, 1887.

Appeal from district court, Bell county.

Geo. W. Tyler, for appellants. Harris & Saunders, for appellees.

GAINES, J.

W. J. Neal and J. D. Bohannon brought suit against Kitty Taylor and Mary Larou for partition of certain tracts of land in Bell county. Thereafter, on the seventeenth of March, 1884, J. B. Fennell and Warren Clayton, having purchased the interests of the original plaintiffs, joined as plaintiffs in the suit, and, together with their vendors, filed an amended petition, in which they made appellants parties defendant, as well as the original defendants to the suit. By the amended petition plaintiffs claimed four-sixths, undivided, of the N. ½ of the John M. Lemon survey of 1,476 acres, and the same interest in all of the John M. Lemon survey of 1,280 acres, except in a certain tract thereof, consisting of 212 acres, in which they claimed only three-sixths undivided. In this last-named tract they admitted an undivided one-sixth interest in appellants, and they also admitted that defendants Kitty Taylor and Mary Larou owned two-sixths, undivided, of each of the tracts sought to be partitioned. These last-named defendants admitted the allegations of the petition, and joined in the prayer of plaintiffs. Appellants in their answer claimed the entire title of the 212-acre tract. It was admitted, by a written agreement filed in the cause, that plaintiffs and defendants Kitty Taylor and Mary Larou had title to all the land except this last-named tract, and that appellants owned one-sixth interest in that tract. The issue made upon the trial was whether appellants or the other parties were entitled to recover the other five-sixths interest in that parcel of land.

The title to all the tracts seems to have been in John M. Lemon, deceased. After his death, a suit was brought in the district court of Travis county, by one Freeman against his heirs, — six in number, — for the specific performance of a contract of location of lands in which plaintiff recovered a judgment for partition and for costs. The lands described in the petition in this suit were allotted to the heirs, and an execution was issued against them for the costs to the sheriff of Bell county. This execution was levied upon the 1,280-acre survey, and the 212 acres of that survey now in controversy were sold by the sheriff under that execution to X. B. Saunders and J. S. Allen. The sheriff's return on the execution recites that he sold the interest of John F. M. Lemon in said 212 acres, who was one of the heirs, and a defendant in the execution. The sheriff's deed purports only to convey the interest of that heir in the land. Saunders and Allen subsequently sold to one Barry and others, by a warranty deed, for $636, one-half in cash, and one-half on a credit, as evidenced by a promissory note executed to them by their vendees. They transferred this note to one Denny, who brought suit thereon, and obtained a judgment foreclosing the vendor's lien on the land. The land was sold under this judgment, and Denny became the purchaser. He subsequently conveyed it to appellants by quitclaim deed. They set up these facts in their answers, and asked that Saunders and Allen, as warrantors, be made parties, and that, in the event judgment be had against them, they have judgment against Saunders and Allen upon their warranty.

The appellants having pleaded that the sheriff, at the sale under execution from Travis county, in fact sold the interests of all the defendants therein in the 212 acres of land, that the recitals in the return were a mistake, and made by inadvertence, and that the deed conveying only the interest of one of said defendants was also erroneous, and was so made through inadvertence, offered to prove these facts by the sheriff and other witnesses. Upon objection by the plaintiffs the testimony was excluded, and defendants excepted. We think the court did not err in its ruling. It is settled law in this state that a sheriff's deed is not necessary to pass title at a sheriff's sale of real estate. A valid judgment, execution, and sale are sufficient for that purpose. But a sheriff's sale is not excepted from the statute of frauds, which requires all contracts for the sale of land to be in writing, and to be signed by the party to be charged therewith. The return of the officer upon his execution ordinarily constitutes a sufficient memorandum in writing to meet the requirements of the statute, but, like other written instruments, is not subject to be varied or contradicted by parol evidence. On the contrary, as part of the record in the case, it imparts absolute verity, (McMicken v. Com., 58 Pa. St. 213;) and is conclusive upon the parties until set aside by some direct proceeding for that purpose, (Barrows v. Rubber Co., 13 R. 1. 48; Swift v. Cobb, 10 Vt. 282; Campbell v. Webster, 15 Gray, 28; Whitaker v. Sumner, 7 Pick. 551; Sykes v. Keating, 118 Mass. 517; Bamford v. Melvin, 7 Me. 14.)

In Ayres v. Duprey, 27 Tex. 599, this court say: "As a general rule, in the absence of fraud or mistake, it certainly cannot be maintained that the return of the sheriff can be varied or contradicted by parol testimony." Also in King v. Russell, 40 Tex. 124, it is said that the sheriff might be called to show that he was mistaken in saying in his return that the property levied on was pointed out by the defendant in execution; but, it being a case in which the validity of the sale by the officer was not called in question, it does not come under the rule we have stated. We are of opinion that, if the facts were as claimed by appellants, the purchasers at sheriff's sale had a remedy to correct the mistake. But this should have been by direct proceeding, brought in the court from which the execution issued, for the purpose of correcting or amending the return.

The title to five-sixths of the 212-acre tract of land depending upon the sheriff's sale we have just had under consideration, the court did not err, as claimed in appellants' second assignment, instructing the jury to find in favor of plaintiffs for that interest. Appellants' second assignment of error is that "the court erred in...