McKennon v. McGown
| Decision Date | 16 April 1889 |
| Court | Texas Supreme Court |
| Parties | McKENNON <I>v.</I> McGOWN. |
Sparks & Smith, for appellant. Davis & Garnett, for appellee.
On the 1st of August, 1873, W. C. O. Driscoll recovered, in the district court of Harris county, a judgment against S. S. Munger for the sum of $931.60, with interest, etc. This judgment was registered in Montague county on the 12th day of January, 1874. Execution issued thereon to Harris county in June, 1874, which was returned by the sheriff indorsed "Not satisfied; no property found." On the 11th January, 1875, execution was again issued addressed to the sheriff of Montague county, under which the land involved in this suit was sold on the 2d day of March, 1875, it being the first Tuesday in said month. Under this sale the land was bought by W. A. Morris, who paid $26.50 therefor, and, though acting for the judgment creditor, Driscoll, took the deed in his own name. It appears that Driscoll, fearing that his title to the land might be invalidated by the sale made on a legal holiday, the 2d day of March, 1875, and to cure this supposed defect, procured another execution to be issued on the 26th of May, 1875, which it seems was directed to the sheriff of Harris county, but was executed by the sheriff of Montague, and under which a sale of the land was again had in July, 1875, at which Driscoll became the purchaser for the sum of $27. Morris, having taken the deed to the land in his own name, was sued by Driscoll in August, 1877. Upon a trial of the cause, judgment was rendered in favor of Morris. Driscoll having died in the mean time, his executor, Byrnes, appealed, and the judgment was reversed, (Byrnes v. Morris, 53 Tex. 217;) the court holding in the case cited, in effect, that Driscoll was entitled to recover upon his title derived through the second sale, even if the sale upon a legal holiday could have affected the first. But, as Munger was not a party to the suit, and had not put in issue the validity of the first sale, the rights of the parties were determined upon the facts connected with the first sale made in March, 1875, and that the purchase of Morris inured to the benefit of Driscoll as it was made for him. After the reversal of the cause, and on June 6, 1881, the appellee, McGown, intervened, alleging ownership of the land, and that the sale to Driscoll on March 2, 1875, was fraudulent, on account of the grossly inadequate price at which the land was sold, and the fact that it was made on a legal holiday, and generally believed to be invalid, and because the execution appeared to have been the first execution issued on the judgment; and it seemed therefrom that the judgment was dormant, and the lien upon said land had been lost, and because said Munger had never been given an opportunity to point out personal property in Harris county to satisfy said judgment, and that said Munger had ample personal property in said county to satisfy the same, and that said sale, if it ever had any validity, had been wholly abandoned by said Driscoll, and he had caused the land to be resold as the property of said Munger, at which sale he became the purchaser, and claimed said land thereunder until he discovered that the execution was erroneously directed to Harris county. Appellee prayed that said sales be set aside, and he tendered in open court the amounts bid on said land, with interest from day of sale.
Under the will of Driscoll, appellant, McKennon, and Margaret Drew became his legatees, each owning one-half of the land. The intervenor having acquired the interest of Margaret Drew, this contest is between said intervenor and McKennon for the remaining half only of the land. In reply to the petition of intervention, the appellant, McKennon, alleged ownership of one-half of the land derived through the will of Driscoll, and denied that his testator was guilty of any fraud, as charged by intervenor, McGown; alleged that the conveyance from Munger to intervenor was made pending the suit between his testator, Driscoll, and Munger, and subsequent to the rendition of the judgment against the latter in Harris county, and its registration in Montague; that the judgment was a valid lien upon the land at the time of the sale to McGown, in August, 1874, etc. The evidence was conflicting as to whether Munger had personal property subject to execution sufficient to satisfy the same. He testified that no demand was made on him for a levy. There was evidence...
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