Garvin v. Hall

Decision Date09 February 1892
Citation18 S.W. 731
CourtTexas Supreme Court
PartiesGARVIN <I>et al.</I> v. HALL <I>et al.</I>

Word & Reeves, for appellants. Coombes & Gano, for appellees.

GARRETT, P. J.

This suit was brought October 5, 1886, in the district court of Dallas county by the appellees, Matilda Hall and others, the widow and heirs of H. H. Hall, deceased, against J. G. Garvin and John Weekly for the recovery of certain premises situated in the city of Dallas. It was in form of trespass to try title, but the petition contained also allegations impeaching the validity of the execution by virtue of which the defendants acquired their title, which was at execution sale, and charged that there was no valid judgment in existence, and that the execution was illegally issued. There was a prayer for restitution of the premises, and for general and equitable relief. The petition was indorsed as in trespass to try title. On September 7, 1887, plaintiffs filed their first amended original petition, and made the appellants T. A. West and E. L. West additional parties defendant. In this pleading the allegations with respect to the judgment and execution were the same as in the original petition. On July 10, 1889, plaintiffs filed their second amended original petition, in which the averments with respect to the defendants' title by virtue of the execution sale are much fuller. They are: "That defendants claim plaintiffs' said land under a pretended sale thereof, by virtue of an execution alleged to have been issued out of the Dallas district court on a judgment therein in favor of one Nick Powell and against H. H. Hall. Plaintiffs aver and charge that, if any such execution ever issued out of said district court, it was issued without any judgment upon which to base it, and at a time when the judgment upon which it was attempted to be issued was no longer in force; that the judgment upon which the said execution was attempted to be issued was not of such character as to support such an execution; that said pretended and illegal execution was not issued until long after the plaintiff to said judgment, Nick Powell, was dead, and no execution whatever was issued on said judgment until after nine years from its date; that at the time said execution was issued there was no valid judgment in existence, and same, if ever issued, was issued without the consent or authority, direct or indirect, of the plaintiff or his attorneys; that no parties plaintiff were ever made to said judgment after the death of said Nick Powell, and said pretended execution issued in his name; that the said pretended execution was fraudulently procured to be issued by the defendants and purchasers under said execution with full knowledge of foregoing facts, and that said defendants are in no sense innocent purchasers for value. Plaintiffs deny that any consideration was paid by defendants or any one for said land; but, in case it should be decided that something was paid, the plaintiffs charge that the rents due by defendants more than equal the amounts paid out, with interest thereon, and ask that such amounts be so canceled by portions of said rents, should it be held that plaintiffs must pay such amounts, and in case that this relief is refused, the plaintiffs allege that they are ready to pay such amounts into court, and ask decree protecting their interests in this respect." Plaintiffs prayed "judgment for restitution of the above-described premises, and for their damages, their costs of suit in this behalf expended, and for general and special relief," etc. Defendants' general and special exceptions were overruled, and they went to trial on pleas of not guilty, general denial, and special pleas of purchase in good faith for value, and improvements made in good faith; that the Powell judgment had been transferred to one Bratcher before issuance of execution; Hall's knowledge of issuance and levy of execution, and sale thereunder; and that more than two years had elapsed since the sale of the land under said execution, and the recording of the purchaser's deed, before the institution of the suit, and that plaintiffs were barred and estopped from attacking said sale; and that the said plaintiffs had been guilty of gross laches in asserting their claim to said land, and that their demand was stale. Trial was had before the court without a jury, and judgment was rendered in favor of the plaintiffs for the recovery of the land sued for. The court held that the Wests bought with notice of the illegality of the sale, but required the plaintiffs to refund the purchase money paid by them to their co-defendants and payment for improvements; but defendants J. G. Garvin, T. A. West, and E. L. West have brought the case before the supreme court by writ of error.

The judgment upon which the execution sale was based, was rendered in the district court of Dallas county, June 5, 1874, in No. 1,273, Nick Powell v. H. H. Hall, for a horse valued at $100, and costs of suit, which amounted to more than that sum, and, in the event that the horse could not be had, that execution issue. Hall perfected an appeal to the supreme court, but it was never finally prosecuted, and about one year after judgment he tendered the horse to Powell's attorney in the suit as satisfaction of the judgment for the horse, but the attorney refused to receive it, because, as he declared, "it was worthless, and no account." Nick Powell, the plaintiff in the suit, died in 1878 or 1879. No execution was ever issued upon the judgment until February 16, 1884, and it was by virtue of this execution that the lot of land in controversy was sold on the first Tuesday in April, 1884, when one S. T. Ruddle became the purchaser for $11.50, and a deed was executed to him by the sheriff. On the same day Ruddle...

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24 cases
  • Starr v. Ferguson
    • United States
    • Texas Supreme Court
    • December 2, 1942
    ...of a lien on the two sections and forecloses it. The contradiction is not cured by the prayer for general relief. Garvin v. Hall, 83 Tex. 295, 301, 18 S.W. 731, holds that a plaintiff, under a prayer for general relief, may be awarded the relief to which the pleadings and the evidence may e......
  • Blanks v. Radford
    • United States
    • Texas Court of Appeals
    • May 25, 1945
    ...by writing or by parole, is well recognized and upheld by the courts. McMillan v. Rutherford, Tex.Civ.App., 14 S.W.2d 132; Garvin v. Hall, 83 Tex. 295, 18 S. W. 731; 26 Tex.Jur. p. 449, § In the McMillan case the court said : "`With respect to its assignable qualities, a judgment is governe......
  • Jordan v. Massey
    • United States
    • Texas Court of Appeals
    • January 26, 1911
    ...justify. Silberberg v. Pearson, 75 Tex. 290, 12 S. W. 850; Kempner v. Ivory, 29 S. W. 538; Trammell v. Watson, 25 Tex. 216; Garvin v. Hall, 83 Tex. 301, 18 S. W. 731; Zadick v. Schafer, 77 Tex. 504, 14 S. W. 153. This manner of stating the rule is probably misleading when applied to a situa......
  • Payton v. City of Big Spring
    • United States
    • Texas Court of Appeals
    • December 5, 1941
    ...prayer for general relief they may be awarded the relief to which the pleadings and evidence may entitle them." Also, see Garvin v. Hall, 83 Tex. 295, 301, 18 S.W. 731, and Zadik v. Schafer, 77 Tex. 501, 14 S.W. In connection with appellant's propositions 2, 3, and 4, just discussed, appell......
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