House v. Robertson

• Decision Date: 12 February 1896
• Citation: 34 S.W. 640
• Parties: HOUSE et al. v. ROBERTSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

34 S.W. 640

HOUSE et al. v. ROBERTSON.¹

Court of Civil Appeals of Texas.

February 12, 1896.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action of trespass to try title by T. W. House and others against J. M. Robertson, and to cancel and set aside deeds. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Z. T. Fulmore and S. R. Caruth, for appellants. James A. Gillette and James M. Robertson, for appellee.

FLY, J.

Appellants brought an action of trespass to try title and to cancel and set aside certain deeds to 1,476 acres of land patented to J. D. Andrews, assignee of Estevan Villareal, against J. M. Robertson, Mrs. H. M. Jenkins, James Love, A. N. Garey, H. B. White, and E. C. Heath. J. W. Robertson asked for and obtained a severance, and disclaimed as to all the land except 476 acres, described by metes and bounds. The cause was tried with a jury, and resulted in a verdict and judgment for Robertson. 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 appellee had was by virtue of a sheriff's sale of the land that took place on the above date. It was shown that on the 22d day of May, 1884, the supreme court of Texas rendered a judgment dismissing a writ of error in case of House v. Whitworth, and against them for all costs of the suit. On June 19, 1884, before the adjournment of the term of 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 on a tract of 1,476 acres of land belonging to appellants, and on the 7th day of October the land was bought at sheriff's sale by appellee for $25, and a deed was duly executed by the sheriff to J. J. Jenkins and J. M. Robertson. The latter afterwards received a deed to Jenkins' interest. The land is fully and accurately described in the sheriff's deed. This suit was instituted on July 23, 1893, nearly nine years after the execution sale.

It is provided in article 1050, Sayles' Civ. St., that the judgments rendered at any term of the supreme court or court of appeals should not become final until the end of the term, and that the clerk shall issue the mandate immediately after the close of the term. This is qualified, however, in article 1058, by a provision that the clerk shall not be compelled to issue the mandate until all the costs of the supreme court or court of appeals are paid. The authority is, however, given the clerk of electing to issue a mandate without costs being first paid, but when he does so he must issue an execution for the costs against the party adjudged to pay the same. This was the only provision in the law as it stood in 1884 for the issuance of an execution out of the supreme court. It will be seen that the right to issue a mandate must have existed to give authority to issue an execution, and, as a mandate could not be issued until the end of the term without a special order from the supreme court, an execution could not issue until the end of the term, or until the order was given. The power to issue the execution was dependent upon the power to issue the mandate. No order of the court is shown in the case of House v. Whiteworth under which the execution was issued before the term of the supreme court was ended. Was this such a disregard of law as to render the proceedings under the premature execution void? In Massachusetts it has been held that such an execution was void, and the title derived therefrom invalid. Penniman v. Cole, 8 Metc. (Mass.) 496. The preponderance of authority, however, is against the authority cited, and in favor of the proposition that premature issuance is an irregularity, and that the execution must be respected until it is vacated in a direct proceeding for that purpose. Blaine v. The Charles Carter, 4 Cranch, 333; Stewart v. Stocker, 15 Am. Dec. 589; Jackson v. Delancy, 7 Am. Dec. 403; Scribner v. Whitcher, 23 Am. Dec. 709; Lowber's Appeal, 42 Am. Dec. 303; Freem. Ex'ns, § 25. Executions cannot be collaterally attacked for irregularities in their issue or execution. Morris v. Hastings, 70 Tex. 26, 7 S. W. 649; Sydnor v. Roberts, 13 Tex. 600; Boggess v. Howard, 40 Tex. 158; Hill v. Newman, 67 Tex. 265, 3 S. W. 271.

Over the objection of appellants, the following levy and return was introduced in evidence: "Came to hand 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, Tex., one-third of League of land: Beginning at the N. E. corner of a survey in the name of urley Hunter from which a spanish oak brs. S. 20. W. 19 vrs. marked J. another bears 67 W. 15 vrs. marked Y.: Thence N. 60 East 2834 vrs. to corner from which an elm bears N. 37 W. p vrs. mark T a walnut bears S. 70. East 20 vrs. marked N. thence S. 30 E. 2940 vrs. to corner from which a live oak oak bears bars S. 75 East 24 vrs. marked T. another bears S. 77 vrs marked K. Thence S. 60W. 2834 vrs. to corner from which a spanish oak brs S. 30. E. 19 vrs. marked H. another bears S. 34 E. 21 varas marked L. thence N. 30. W. 130 vrs branches 320 varas a creek 2940 vrs to the place of beginning. And further executed on 20th day of August 1884 By By advertising the same for sale by posting notices at three Publick Places in the County, one of which was at the Court House door at Meridian, said notices having been posted for Twenty days before the day of sale and further executed on 7th day of October 1884 that being the first Tuesday of said month by offering said land for sale at Publick venue at Court House door in Meridian and J. M. Robertson having bid for the same the same was struck off to him the said Robertson and he paying the sum so bid by him I executed to him a deed for said land." In the sheriff's deed the starting point is described as beginning at the northeast corner of a survey in the name of Wiley Hunter, and so it is expressed in the petition. If the word "Wiley" is substituted for "urley," it will not be denied that the description is sufficient, and we are of the opinion that the first syllable in the given name of the man whose name is given to the survey that marks the beginning point of the land in question would not invalidate the description. If this...