Fleming v. Ball

• Citation: 60 S.W. 985
• Parties: FLEMING et al. v. BALL et al.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 23 January 1901
• Court: Texas Court of Appeals

60 S.W. 985

FLEMING et al. v. BALL et al.¹

Court of Civil Appeals of Texas.

January 23, 1901.

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

Trespass to try title by W. G. Fleming and another against C. C. Ball and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

P. A. Turner, for appellants. King & King and Chas. S. Todd, for appellees.

FLY, J.

This is an action of trespass to try title to a certain tract of land off the Daniel Buie survey, instituted by W. G. Fleming and C. C. Carr against C. C. Ball and Mrs. Elizabeth Spradlin. The cause was tried by the court, and judgment rendered in favor of appellees. Appellants claim the land through a sheriff's deed, dated July 7, 1896, which was executed by virtue of an order of sale issued in a case styled "J. L. Rutherford v. J. P. Spradlin," which order of sale was issued eight years after the death of J. P. Spradlin. No administration was ever had on his estate. No money was paid by the purchasers at the sheriff's sale, but the amount due on the judgment was credited on a debt due by W. J. Spradlin, son of J. P. Spradlin, to C. C. Carr. Mrs. Elizabeth Spradlin is the widow of J. P. Spradlin, and C. C. Ball claimed the land through a bond for title from her and the children of J. P. Spradlin. There is but one assignment of error, and under it is submitted the following proposition: "A sale of land under an order of sale issued on a judgment for money, and establishing and foreclosing a vendor's lien on said land, is not absolutely void, because the sole defendant in said judgment was dead at the time said order of sale was issued, there being no administration on said estate, and no possibility of one; more than four years having elapsed since the death of the defendant in the judgment." The proposition is based upon the facts in proof, and presents the only point in the case. There has been some conflict of opinion in Texas on the question involved, but we think that the correct ruling was made by the district judge, and that the sale under the judgment, made after the death of the defendant, was void. A review of the Texas cases shows that the point at issue was first passed upon in the case of Conkrite v. Hart, 10 Tex. 140, and it was held that a sale of land, made after the death of a defendant, under an execution issued before his death, was void, and that no title was acquired thereby. That decision was affirmed in Robertson v. Paul, 16 Tex. 472; Boggess v. Lilly, 18 Tex. 200; Chandler v. Burdett, 20 Tex. 42; McMiller v. Butler's Adm'x, Id. 402; Emmons v. Williams, 28 Tex. 778; Cook v. Sparks, 47 Tex. 28; Meyers v. Evans, 68 Tex. 466, 5 S. W. 66; Schmidtke v. Miller, 71 Tex. 103, 8 S. W. 638; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Hooper v. Caruthers, 78 Tex. 432, 15 S. W. 98.

The decision in Conkrite v. Hart was first questioned in Webb v. Mallard, 27 Tex. 83, where Justice Moore expressed a doubt as to its correctness. In Taylor v. Snow, 47 Tex. 462, the decision in Conkrite v. Hart is attacked and overruled, through a decision rendered by the same judge who wrote the opinion in Webb v. Mallard. In Cain v. Woodward, 74 Tex. 549, 12 S. W. 319, it was held that Taylor v. Snow had overruled the previous decisions on the subject, and it was concluded that a sale of land made under an execution issued after the death of a sole defendant was merely voidable. The opinion was delivered by the commission of appeals, and adopted by the supreme court. It is interesting to note that in the same volume (page 162), in the case of Northcraft v. Oliver, it is said by the supreme court: "The evidence in this case shows that the execution under which defendants hold was issued after A. T. Oliver's...