Grace v. Garnett

• Decision Date: 01 January 1873
• Citation: 38 Tex. 156
• Parties: C. D. GRACE ET ALS. v. JOHN R. GARNETT
• Court: Texas Supreme Court

38 Tex. 156

C. D. GRACE ET ALS.

v.JOHN R. GARNETT

Supreme Court of Texas.

1873.

1. Where the time and place of a public sale are prescribed by law, the sheriff has no authority to sell at any other time, or place, and should he do so, his acts are not merely irregular, but void and confer no title.

2. Parol evidence is admissible to prove irregularities in a sheriff's sale.

APPEAL from Fannin. Tried below before the Hon. W. H Andrews.

This was an action of trespass to try title, brought in the district court of Fannin county, by appellant's intestate, John R. Woolfork, February, 1868. Plaintiff died before trial, and his surviving wife, minor heirs and administrators made themselves parties.

At the May term, 1872, defendant obtained judgment for the land in controversy, and plaintiffs appealed to the supreme court.

The facts are sufficiently stated in the opinion of the court.

Joseph Bledsoe, for appellant, cited the following authorities: Palmer v. Wilson, 18 Tex. 592; Pas. Dig. art. 5125; Foot v. Rivers, 11 Tex. 662;Hunt v. Turner, 9 Id. 387;Hanney v. Thompson, 14 Id. 144;Hollingsworth v. Holshousen, 17 Id. 46; Pas. Dig. art. 3770; Howard v. North, 5 Tex. 310;Johnston's Adm'rs v. Shaw, 33 Id. 590;Allen v. Stephens, 18 Id. 658.

Throckmorton & Brown, for appellee. The assignment of errors present: First. The judgment under which the sale was made having been rendered after the stay law of the seventh day of December, 1861, was passed, it was null, and all proceedings thereunder void.

To this we answer, the stay laws were void. 30 Tex. 706.

Second. The court erred in refusing to permit plaintiff to prove that the sale occurred after 4 o'clock P. M.

Appellant's suit was trespass to try title. Appellee plead not guilty. Appellant then attacked the title of defendant specifically by amended petition, and alleged certain defects he could not be allowed to prove; others of which no notice was taken. We think that this is analogous to the plea of not guilty on the part of defendant in action of trespass to try title; which would admit all of his defenses, but if he undertakes to plead specially he will be confined to the allegations made. 11 Tex. 662.

If the evidence were admitted, would it vitiate the sale? Art. 3776, Pas. Dig., prescribes the rule for sale of lands. This article requires that the sale should be advertised for twenty days, etc., as well as that it should be made within certain hours.

The advertisement would seem to be at least of equal importance, yet it has been held that the total failure to advertise would not affect the title of the purchaser. 5 Tex. 302;17 Tex. 259.

If it be true that the sale was made after 4 o'clock P. M., it was an irregular execution of the power that would not avoid the sale, and the exclusion of such testimony would not be error. 11 Ga. 423.

We believe that an examination of the record will show that the charges given in connection with the facts are correct and proper, and we ask that the judgment be affirmed.

WALKER, J.

This suit was brought by the intestate of the appellant to recover the land described in the petition, being a part of the headright of Rachel Baker, deceased. The plaintiff notified the defendant that he claimed title from a common source, and both parties claim through James M. Bumpass. The plaintiff claimed under a deed from Bumpass, dated February 16, 1867. The defendant claims under a constable's deed dated August 7, 1867. To support his title under this deed, he offered a judgment dated December 13, 1861, against Bumpass and in favor of one Hansell; also an execution and levy, under the judgment, on the thirteenth of July, 1867; but there is no return of a sale made under the execution.

The defendant, however, offered verbal evidence to prove that a sale was actually made, and the money applied to the Hansell judgment. In rebuttal the plaintiff offered to prove that the sale was irregular and void, for the reason that it was made after 4 o'clock; and this evidence was ruled out.

It is claimed that the judgment in favor of Hansell was void, because rendered in 1861, subsequent to the passage of the first stay law. These laws, however, were declared by this court to be unconstitutional, in the sequestration cases, 30 Tex. 706.

To our minds it is...