Grimes v. Hobson

• Decision Date: 01 January 1877
• Citation: 46 Tex. 416
• Parties: S. F. GRIMES v. N. HOBSON.
• Court: Texas Supreme Court

46 Tex. 416

S. F. GRIMES

v.N. HOBSON.

Supreme Court of Texas.

1877.

APPEAL from De Witt. Tried below before the Hon. D. D. Claiborne.

S. F. Grimes brought suit, August 21, 1871, against N. Hobson, in the District Court of De Witt county. The petition set out that, October 5, 1855, in the District Court of Jackson county, a judgment was obtained for $1,132.49, by Joseph H. Raymond, against William G. Hill, Benjamin F. Hill, and D. M. Stapp; that under said judgment, an alias execution was issued, October 4, 1858, to the sheriff of De Witt county, which execution came to the hands of the sheriff of De Witt county, October 12, 1858, and was, on the same day, levied on a tract of 1,000 acres, being the interest of defendant William G. Hill in a league of land patented to him in 1852; that under said execution, the sheriff sold said land on the first Tuesday in February, 1859, when James E. Sutton became the purchaser, for fifty dollars, the highest bid offered; and the sheriff executed a deed therefor. That said William G. Hill, on November 30, 1858, executed to defendant Hobson a deed for said land, under which he sets up claim; that the claim of Hobson, as against plaintiff, is void; but is a cloud on the title of plaintiff, and embarrasses him in the sale thereof. He asked judgment quieting his title to the land against defendant, declaring such claim void, and for general relief.

The defendant pleaded his purchase of W. G. Hill, alleging that the judgment was dormant at the time of the issuance of the alias execution under which the sale was made, through which the plaintiff claimed title.

A jury was waived, and judgment was rendered for the defendant, and annulling the sheriff's deed, &c., from which the plaintiff appealed.

The facts, as to the title, as alleged in the pleadings, were proven. It was also admitted that the purchase by Sutton was made for D. M. Stapp, one of the defendants in execution, and that Sutton conveyed to Grimes, the plaintiff in trust for Stapp, who furnished the money to pay the bid at the sheriff's sale.

W. R. Friend, for appellant, cited and discussed Sydnor v. Roberts, 13 Tex., 598;Hawley v. Bullock, 29 Tex., 216;Smith v. Boquet, 27 Tex., 507;Robinson v. Parker, 3 Smedes & Marsh., 114; Paschal's Dig., 4983, 4988, 4994; Hargrove v. De Lisle, 32 Tex., 170;Mercein v. Burton, 17 Tex., 206; Sayles's Prac., sec. 653; Ayres v. Duprey, 27 Tex., 607;Bennett v. Cocks, 15 Tex., 67;Barrett v. Barrett, 31 Tex., 348;Blankenship v. Douglas, 26 Tex., 225; 1 Greenl. Ev., sec. 115; Orme v. Roberts, 33 Tex., 768.

Phillips, Lackay & Stayton, for appellee, cited and discussed Rodgers v. Burchard, 34 Tex., 443;Orme v. Roberts, 33 Tex., 773;Ayres v. Duprey, 27 Tex., 606.

October 21, 1873, the case was affirmed, Walker, Justice, delivering the opinion; Ogden, Justice, dissenting.

A rehearing was applied for and granted.

Jackson & Jackson, for the motion and on the merits of the case, filed a written argument, carefully and ably discussing the authorities.

Glass & Cullender and W. R. Friend resisted the motion, in a written argument; also on the merits.

MOORE, ASSOCIATE JUSTICE.

It was expressly decided by this court at its late session, at Austin, in the case of Grace v. Wade and Mains, that an unrecorded deed was void, by reason of our registration acts against a creditor who had acquired a specific lien or interest in the land in controversy, by the levy of an execution under a judgment in a different county from that in which the land was situated, although the creditor had not caused a copy of the judgment to be recorded in said county; and that the creditor, or any one else who might purchase the land under the execution, would get title against the unrecorded deed, notwithstanding he might have full notice of the deed when he purchased, provided the creditor had no notice prior to the levy of his execution. This decision is directly applicable to this case, and will require its reversal.

The action in this case, although not brought strictly under the statute, must be held, under the authority of Dangerfield v. Paschal, (20 Tex., 536,) to be in effect an action of trespass to try title. If the prayer to quiet title and remove cloud, can be treated as amounting to anything more than the prayer in an action in trespass to try title, it may be...