Harris v. Mayfield

• Decision Date: 02 April 1924
• Docket Number: (Nos. 440-3920.)
• Citation: 260 S.W. 835
• Parties: HARRIS et al. v. MAYFIELD et al.
• Court: Texas Supreme Court

260 S.W. 835

HARRIS et al. v. MAYFIELD et al.

(Nos. 440-3920.)

Commission of Appeals of Texas, Section B.

April 2, 1924.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Lillie Harris and others against Mollie Mayfield and others. Judgment for defendants was affirmed by the Court of Civil Appeals (244 S. W. 857), and plaintiffs bring error. Reversed and remanded in accordance with the recommendation of the Commission of Appeals.

Y. D. Harrison and T. P. Young, both of Marshall, for plaintiffs in error.

Bibb & Caven, of Marshall, for defendants in error.

STAYTON, J.

In 1901 William Harris and his wife, Clora, owned, as community property, a lot in the city of Marshall. Back taxes were due upon it. The city by suit and judgment foreclosed its tax lien; and, under a sheriff's sale and by mesne conveyances and the operation of the statute of descent and distribution, a daughter-in-law of the couple, Lillie Harris, acquired an undivided interest in the property.

After the sheriff's sale, William and Clora Harris continued to live upon the lot. William died. Clora, shortly before her death, conveyed to Mollie Mayfield an undivided interest in the property.

Mollie Mayfield then brought suit for partition, joining, as parties, all of the heirs of William and Clora. These were all of the parties that were necessary, if, after the sheriff's sale, this old couple, or either of them, were, by reason of invalidity of that sale, or by reason of limitation under the 10 years' statute, the owners of the lot. If, on the other hand, the sheriff's sale was valid, and limitation did not thereafter divest the title evidenced by it, a different case is presented. In that case, since all of the co-owners under the sheriff's sale were not made parties to the partition suit, such of them as were omitted were not bound by the decree in that suit.

This present action was brought by the daughter-in-law, Lillie Harris, who, after the attempted partition, had acquired some of the undivided interests of those holding under the sheriff's sale. These latter persons had not been parties to the partition suit. Upon that ground she sought to set aside the decree of partition and its incidents.

The defense of Mollie Mayfield and others claiming under the partition decree was that Lillie Harris' predecessors in title had never acquired any interest, because, in the first place, the sheriff's sale was void, and, in the second place, all persons claiming under it were barred by limitation. They also reconvened for title.

The trial court held with the defendants upon the first ground, and, on appeal, the Court of Civil Appeals was of the opinion that, while that basis for defendants' judgment could not be maintained, still the judgment was correct, because the evidence showed the accrual of limitation in behalf of William Harris and wife. The conclusion of the Court of Civil Appeals upon the validity of the sheriff's sale is considered to be correct.

In proof of that title, there were in evidence a final and entirely regular judgment of the district court against William Harris; undisputed testimony that the execution was lost; the entries on the clerk's execution docket showing the issuance of order of sale under the judgment, and its delivery to the sheriff; and the sheriff's deed reciting the judgment, order of sale, "levy," sale, and facts showing, if true, that the proceedings succeeding the judgment were legal and regular. The deed was executed and recorded over 20 years before the suit. A subsequent deed under which defendant Mollie Mayfield claimed recited facts justifying the inference that those holding under the sheriff's sale had good title.

The basis of the trial court's holding, to the effect that such title was invalid, was that there was no evidence that the tax proceedings prior to the judgment were regular, nor that the order of sale issuing upon the judgment was ever returned.

Judgments in such cases have, as against collateral attack, been definitely placed upon the same plane with judgments in general by the opinion of Justice Greenwood in Brown v. Bonougli, 111 Tex. 275, 232 S. W. 490. In that opinion the difference between official tax sales and sales after foreclosure of tax lien by suit and judgment was clearly stated, and it was decided that, as distinguished from the ordinary tax sale, such a judgment, regular on its face, presumes the regularity of its prerequisites. The attack upon the judgment in this case is collateral, as it was in that case.

The other basis of the trial court's conclusion is likewise considered to be erroneous. That a return, which is designed to follow a sale by sheriff or constable, is not necessary to the validity of the sale is settled. Willis v. Smith, 66 Tex. 43, 17 S. W. 247. After title has vested in a purchaser at such a sale, it is not subject to being defeated by subsequent delinquencies on the part of the sheriff.

But the court's view is susceptible of the construction that, in the absence of a return, there was nothing to show the regularity of the proceedings that occurred between the judgment and the sheriff's deed. That question should be examined.

It must be conceded that the entries on the execution docket were, under the statute, competent evidence of what they showed on their face. R. S. art. 3782. In Schleicher v. Markward, 61 Tex. 102, it was said, upon the basis of this article:

"That the entries in these dockets shall be taken and deemed to be a record; and, * * * are of as much dignity as the execution itself."

The entries in the present instance showed that in this identical tax suit, and upon this identical judgment, and 42 days after the rendition of it, order of sale issued and was handed to the sheriff. If the clerk did his duty, he worded the order of sale as required by the judgment and the statutes and handed it for execution to the proper officer. The entries, moreover, showed, as stated, that it was handed to the sheriff. If the sheriff did his duty, he thereupon conducted the sale in legal manner. The deed is in regular form and shows to have been executed 58 days after the order of sale was issued. Whether the recitals in that and the other deed above mentioned were evidence need not be now stated. No presumptions of irregularity should be indulged. On the contrary, it should be presumed that these officers did their duty. In the case of Howard v. North, 5 Tex. 290, 51 Am. Dec. 769, where the proof was silent as to some of the important steps in an execution sale, the court said:

"The prima facie presumption is, that the officer discharged his duty, * * * according to the requisitions of the law. The presumption is in favor of the title, and will support it, unless rebutted by proof to the contrary."

To the same effect are White v. Jones, 67 Tex. 640, 4 S. W. 161; Sadler v. Anderson, 17 Tex. 252; Tompkins v. Creighton Co., 160 Fed. 303, 87 C. C. A. 427, in connection with which see Baker v. Coe, 20 Tex. 429; and Terry v. Cutler, 4 Tex. Civ. App. 570, 23 S. W. 539.

On this collateral attack it must therefore be held that the judgment, the entries on the execution docket, and the sheriff's deed made a prima facie case of a valid title, in so far as the tax suit was concerned.

There was no showing of any fraud or irregularity in the sale or the proceedings leading up to it. In view of this, the objection of the defendant Mollie Mayfield that the sale was made upon, what she states, was a grossly inadequate bid becomes immaterial. Allen v. Pierson, 60 Tex. 604; Allen v. Stephanes, 18 Tex. 672; Jones v. Pratt, 77 Tex. 210, 13 S. W. 887; First National Bank v. South Beaumont Land, etc., Co., 60 Tex. Civ. App. 315, 128 S. W. 436. There is no evidence or finding, however, that the bid in the present instance was inadequate.

Notwithstanding the property was homestead, the wife was not a necessary party to the tax suit, because homestead could not have been a defense to it. Cooley v. Miller (Tex. Com. App.) 228 S. W. 1085.

For the reasons discussed, it is considered that the title left William Harris and his wife at least by the date upon which the sheriff's deed was filed for record, July 27, 1901.

The next question in the case is whether this couple, or either of them, acquired title after that date under the 10 years' statute of limitation. There was no proof of such payment of taxes as is required under the 5 years' statute. The testimony upon the issue of limitation is entirely undisputed, and does not conflict with any finding of fact below.

William and Clora Harris acquired the property in William's name November 20, 1885. It was within the city of Marshall, and its dimensions were 111×118.65 feet. Fifteen years later (July 3, 1901) the deed was delivered to the purchaser at the sheriff's sale. Less than 8 years after that William Harris died (1907 or 1908), leaving his wife and three children as his heirs, and 9 or 10 years after William's death Clora died (1917).

At some indefinite date before or after the sheriff's sale, and prior to William's death, a dwelling house was built by the couple, or one of them, upon the lot, and...