Gunter v. Cobb

• Decision Date: 18 December 1891
• Citation: 17 S.W. 848
• Parties: GUNTER <I>et al.</I> v. COBB.
• Court: Texas Supreme Court

17 S.W. 848

GUNTER et al. v. COBB.

Supreme Court of Texas.

December 18, 1891.

Appeal from district court, Tarrant county; R. P. WILLING, Special Judge.

Action by W. E. Cobb against Gunter and Summerfield. Judgment for plaintiff. Defendants appeal. Reversed.

Templeton & Carter and Robertson & Coke, for appellants. C. C. Potter, J. H. Cobb, and Crawford & Crawford, for appellee.

STAYTON, C. J.

The right of appellee to any of the relief he sought or obtained depends upon his title to cattle at one time owned by the Stone Cattle & Pasture Company; and, in the view taken of the case, it does not become necessary to state the facts bearing upon other questions raised by the parties, nor to discuss them. That the cattle at one time belonged to the Stone Cattle & Pasture Company both parties concede, for they claim from this common source. Appellee claims that he obtained title to the cattle through sales made under executions against that company, and there is no claim that the judgments were not valid, nor that the executions were in any manner defective; but it is claimed that the levies and sales made were invalid, and that appellee acquired no title by his purchase under them. The facts affecting the sales under execution are, in substance, as follows: The Stone Cattle & Pasture Company owned an inclosed pasture, estimated to contain not less than 293,000 acres of land, but some of the witnesses gave its area at about 430,000 acres, and this covered lands in Wilbarger, Archer, Baylor, and Wichita counties, over which the cattle in controversy and other cattle ranged at will, without obstructions, artificial or natural; and the evidence shows that it was impossible to ascertain what cattle or number of cattle were in either of these counties at the time the levies and sales in question were made. There were roads running through the pasture, some of which passed through gates, and there was one first-class road, across which there were no gates, but, at each of the openings in the pasture fence thus made, a man with his family lived, whose duty it was to guard the openings. The cattle in controversy, and many others, at the time of the levies and sales relied on by appellee for title were made, ran at large in that pasture, but the company had executed a deed of trust on the cattle in controversy, which were identified by a particular brand which other cattle in the pasture did not bear, and of those cattle the trustee had the possession or right to possession and control as they ran or otherwise at the time the levies and sales were made, unless appellants had acquired this. The cattle being so situated, an execution issued on one of the judgments against the Stone Cattle & Pasture Company, which on March 27, 1886, was in the hands of the sheriff of Wichita county to whom it was directed, and on that day he showed by his return that he levied or attempted to levy on some of the cattle in controversy. This return, which it is conceded shows what he did, after stating that he was unable to find any person from whom to demand a levy, reads as follows: "I did, in the presence of two good and credible witnesses, to-wit, W. E. Johnson and H. Burnham, levy upon and take into possession, as they run upon the range in Wichita county, Texas, the following described stock cattle: A certain lot of mixed stock cattle, some branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, some XOZ, nearly all those branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, and XOZ having the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand on them also; and all of them having a \ on the left loin, numbering 3,000 head, and being all the cattle in said brand in Wichita county." These cattle were sold by the sheriff April 10, 1886, and appellee became the purchaser, at a bid of $100, but the cattle were never gathered or in any manner severed from other cattle in the pasture, but were sold as they ran. Another execution issued against the company, directed to the sheriff of Archer county, was in the hands of that officer on March 30, 1886, and his return thereon, so far as necessary to be stated, is as follows: "I did * * * levy upon and take into my possession as they run upon the range in the pasture of the Stone Cattle & Pasture Company in Archer county, five thousand seven hundred (5,700) head of mixed stock cattle, branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, and some branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, or NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, and some branded XOZ, nearly all of which branded cattle also have the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand on them, and 4,000 head of which have been rebranded thus, \, on the left loin." These cattle were sold by the sheriff, and appellee became the purchaser. This sale was made under the same circumstances as the sale before referred to, and the appellee bid for the 4,000 head, having the rebrand thus, \, the sum of $60. This "rebrand" designates the cattle covered by the trust-deed, which are the cattle in controversy, and this brand was placed on cattle for the purpose of identifying those covered by that instrument, some time before the levies were made. Another execution against the company was directed to the sheriff of Baylor county, and his return shows that on April 12, 1886, he levied "upon cattle on the range, by range levy, to-wit, upon fifty-five hundred (5,500) head of mixed stock cattle, consisting of cows, calves, yearlings, 2-year-old steers and heifers, bulls, and beef steers, in various marks and brands, but nearly all being branded thus: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE on left hip and side; and those not so branded having NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, or NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, or XOZ on left side; and four thousand head branded \ on left loin." The return thereon states the brands on the 1,500 head not having the brand \ on loin, which is termed a "tally brand," and it contains the statement that the catte thus levied upon were "all the cattle in Baylor county branded with any one of said tally brands." These cattle were sold under the same circumstances as those before referred to, and of the 4,000 bearing the tally brand \ appellee became the purchaser at a bid of $60.

The evidence shows, outside of the officers' returns, that the levies were entered on the several executions while the cattle were running at will in the pasture, and that the sales were made while they were in the same condition; and it further shows that it would be impossible to ascertain what particular cattle or number of the cattle in controversy were in any given county at any particular day. The question of the admissibility of the sheriffs' acts for the purpose of showing title in appellee was raised in the court below, as was the question of the...