House v. Robertson

• Decision Date: 15 June 1896
• Parties: HOUSE et al. v. ROBERTSON.
• Court: Texas Supreme Court

36 S.W. 251

HOUSE et al. v. ROBERTSON.

Supreme Court of Texas.

June 15, 1896.

Error to court of civil appeals, Fourth supreme judicial district.

Action of trespass to try title, brought by T. W. House and others against J. M. Robertson. A judgment for defendant having been affirmed by the court of civil appeals, plaintiffs bring error. Reversed.

For former report, see 34 S. W. 640.

Z. T. Fulmore and S. R. Caruth, for plaintiffs in error. James A. Gillette and James M. Robertson, for defendant in error.

BROWN, J.

The plaintiffs in error brought an action in the district court of Bosque county against J. M. Robertson and others to recover a tract of land situated in that county, being one-third of a league, but in which there is an excess, making the real amount embraced in the survey 1,600 acres. The petition first sets out the cause of action as in an ordinary action of trespass to try title, and then proceeds to set up the title of plaintiffs to the land, and the claim of title under which the defendants hold, asking that the sale under execution as hereafter stated be set aside. A severance between J. M. Robertson and the other defendants was granted, and Robertson disclaimed title to 1,000 acres of the land. The facts found by the court of civil appeals are as follows: It was admitted that appellants had a perfect title to the land in controversy up to the time of the execution sale on October 7, 1884, and that whatsoever title Robertson had was by virtue of the sheriff's sale of the land that took place on the above date. On the 22d day of May, 1884, the supreme court of Texas rendered a judgment dismissing a writ of error in a case,—House v. Whitworth,—and against the plaintiffs in error for all costs of the suit; and on the 19th day of June, before the adjournment of that term of the court, the clerk of the supreme court issued an execution, accompanied with a bill of costs, addressed to the sheriff of Bosque county, who executed it by levying upon a tract of land in the said county, the levy being indorsed upon the execution as follows: "Came to hand on the 23rd day of June, 1884, and executed on the 20th day of August, 1884, by seizing and levying upon a certain tract of land in Bosque county, Texas, one-third of a league, beginning at the N. E. corner of a survey in name of Urley Hunter from which a Spanish oak bears south 20 degrees west 19 varas marked J. another bears 67 west 15 varas marked Y. thence north 60 east 2834 vrs to corner of an elm bears north 37 W. P vrs marked T. a walnut bears S. 70 E. 20 vrs marked N. thence south 30 E. 2940 vrs to corner from which a live oak bears bars S. 75 east 24 vrs marked T. another bears south 77 vrs marked K., thence south 60 west 2834 vrs to corner from which a Spanish oak bears S. 30 degrees east 19 vrs marked H. Another bears south 34 E. 21 vrs marked L., thence N. 30 W. 130 vrs branches 320 vrs a creek 2940 vrs to the place of beginning." Upon the execution was indorsed a return that the land was advertised for sale as required by law, and that on the 7th day of October, 1884, —being the first Tuesday of that month,—the land was sold at public sale at the courthouse door in Meridian to J. M. Robertson for the sum of $25, which he paid. The sheriff executed to Robertson a deed in which the land was described as beginning at the northeast corner of a survey in the name of Wiley Hunter, otherwise describing the land as in the levy. In addition to the findings made by the court of civil appeals, we find in the record the undisputed evidence of the defendant Robertson to be that the land, at the time of the sale, was worth to him about 50 cents an acre, and that the survey actually contained something over 1,600 acres; that in 1884 or 1885 he leased the land to one Kingsbery, who built some sheep sheds and pens on it, which remained there until about three or four years before the trial, which was in 1895, when one Goodwin, the tenant of J. M. Robertson, took possession of the land for Robertson, and held it until the trial. There was no offer in the pleadings, nor shown in the testimony, on the part of the plaintiffs in the court below, to refund to the defendant the money that he had paid in purchasing the land, and there is no proof showing what was the value of the use and occupation of the land during the time that Robertson had possession of it. There was a trial before a jury in the district court, which resulted in a verdict for the defendants, and judgment entered accordingly, which judgment was affirmed by the court of civil appeals.

The plaintiffs in error claim that the sale under which defendant Robertson seeks to hold the land is void because (1) the execution under which the sale was made, having been issued before the adjournment of the court for the term at which the judgment was rendered, is absolutely void; (2) because the levy of the execution upon the land, as indorsed upon it, was void for uncertainty in the description of the land, and for other reasons. They also claim that, if the sale is not void, it is voidable in this proceeding, and that the deed should be set aside because of the irregularities which occurred in issuing and levying the execution, and the inadequacy of the price at which the land was sold to the defendant.

The court of civil appeals rightly held that the execution, although prematurely issued, was not void, but that the issuance before the adjournment of the court at that term was an irregularity, and also that the levy, as indorsed upon the execution, although defective, was not void, and that for these reasons the sale made by virtue of the execution and levy was not void as claimed by the plaintiffs. It is unnecessary for us to discuss these questions, since they are properly disposed of by the court of civil appeals in...